Action for a reduction in price or avoidance: the choice belongs to the buyer, not the judge

Imagine: you have just bought a flat in Nancy, in the Mon Désert district. The viewings were perfect, the seller smiling, the technical diagnosis in order. But after a few weeks, acoustic nuisances wake you up every night. Water infiltrations appear. You are furious. What can you do? Demand a reduction in price? Or simply avoid the sale? The question is central for any buyer faced with latent defects.

This decision of the Court of Cassation of 20 October 2010 (No. 09-16.788) provides a clear answer: it is for the buyer to choose, not the judge. Even if the repairs are minimal, the buyer may prefer to return the property and get their money back. A victory for property rights.

Let us analyse together what to remember, with concrete examples for owners in Lunéville or elsewhere.

The facts: a story that happens every day

Mr Y., a buyer, purchases a flat in Nancy. Very quickly, he notices generalised acoustic nuisances throughout the whole dwelling, as well as water infiltrations. He sues the seller in court to obtain the rescission (avoidance) of the sale on the ground of latent defects (Articles 1641 et seq. of the Civil Code).

The seller contests: according to him, the defects were visible or repairable at low cost. He argues that the buyer should have claimed a simple reduction in price (action for a reduction in price) rather than outright avoidance. The court of first instance finds in favour of the buyer and pronounces rescission. The seller appeals.

The Nancy Court of Appeal upholds the judgment. The seller appeals to the Court of Cassation, arguing that the judges should have given reasons for their decision on the choice between the two actions. But the Court of Cassation dismisses the appeal: it reminds that the choice between the action for a reduction in price and the action for avoidance belongs exclusively to the buyer. The judge does not have to justify why they grant one rather than the other: it suffices for them to note the existence of a latent defect (a hidden defect rendering the property unfit for its use or so diminishing its use that the buyer would not have bought it, or would have bought it at a lower price).

The court's reasoning — dissected

The legal basis is Article 1644 of the Civil Code, which provides: "In the cases of Articles 1641 and 1643, the buyer has the choice of returning the thing and having the price returned, or of keeping the thing and having part of the price returned." This is respectively called the action for avoidance (avoidance) and the action for a reduction in price (reduction in price).

The Court of Cassation specifies that this choice is an exclusive right of the buyer, which the judge can neither modify nor condition. It does not matter that the defects are easily repairable at low cost: the buyer can demand avoidance if they consider that the property does not correspond to what they had agreed to buy.

In this case, the trial judges had noted that the acoustic nuisances were generalised and that infiltrations existed, rendering the flat unfit for peaceful enjoyment. They did not have to investigate whether these defects could be corrected at low cost. This investigation was irrelevant, because the choice of action belongs to the buyer.

This is a confirmation of case law: the Court of Cassation had already ruled in this sense (Civ. 3e, 17 June 1998, No. 96-16.417). But it goes further by affirming that the judge does not even have to give reasons for their decision on this point. Once the defect is established, the buyer has the final say.

What this changes for you — concretely

For a buyer in Nancy or Lunéville, this decision is a powerful weapon. If you discover a latent defect after the purchase, you can demand rescission of the sale, even if the seller offers to repair at their own expense. Example: you buy a house in Lunéville for €200,000. Structural cracks appear, but the seller offers to fill them for €2,000. You can refuse and demand outright avoidance.

For a landlord-owner, be careful: if you sell a property, you are exposed to this action. Even if the defects are minor, the buyer can choose avoidance. Make sure you properly inform the buyer of the actual state of the property, or sell without a warranty against latent defects (but this is rarely possible for an individual).

For a tenant, this decision does not apply directly (the tenant does not have an action for avoidance), but it shows the importance of latent defects. If you suffer nuisances, your recourse is against the landlord for breach of the obligation of delivery.

In practice, if you are in this situation, you must act quickly: the action under the warranty against latent defects must be brought within two years from the discovery of the defect (Article 1648 of the Civil Code). And above all, do not let the seller convince you to accept a simple repair if you want to avoid the sale.

Four tips to avoid this type of dispute

• Have complete technical diagnostics carried out before the purchase. In Nancy as elsewhere, an acoustic diagnosis or a search for leaks can save you from nasty surprises. Do not rely solely on the DPE.
• Keep all evidence proving the discovery of the defect. Photos, neighbour statements, expert reports. The date of discovery is crucial for the two-year period.
• Do not sign a discharge or waiver of warranty without legal advice. Some sellers offer a flat-rate indemnity in exchange for a waiver of any action. This can be disadvantageous.
• If in doubt, consult a lawyer specialised in property law. The choice between an action for a reduction in price and an action for avoidance is strategic: a professional will help you assess the appropriateness of each option according to your situation.

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Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. Already in 1998, the Third Civil Chamber had affirmed that "the choice between the action for a reduction in price and the action for avoidance belongs to the buyer" (Civ. 3e, 17 June 1998, No. 96-16.417). The 2010 decision confirms and specifies that the judge does not even have to give reasons for their choice.

More recently, the Court of Cassation reminded that the buyer can exercise the action for avoidance even if the defect has disappeared at the time of judgment (Civ. 3e, 12 July 2018, No. 17-17.988). What matters is the existence of the defect at the time of the sale.

The trend is therefore very protective of the buyer. Judges cannot substitute their assessment for that of the buyer on the appropriateness of avoiding or reducing the price. This reinforces legal certainty in transactions, but imposes increased vigilance on sellers.

Frequently asked questions

Can I demand avoidance of the sale if the defect is minor and repairable for €100? Yes, in theory, if the defect constitutes a latent defect (rendering the property unfit for its use). But the judge could consider that the defect is not decisive. Better to consult a lawyer.

What is the time limit for bringing an action under the warranty against latent defects? Two years from the discovery of the defect. After this period, you lose any recourse.

What if the seller refuses to acknowledge the defect? You must bring the matter before the judicial court. A judicial expert report may be ordered to establish the defect.

Can I choose the action for a reduction in price even if the defect is serious? Yes, it is your right. For example, if you are attached to the flat but want a reduction in price to compensate for repairs.

Can the seller force me to accept a repair? No, this is the core of this decision. The choice belongs exclusively to you.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Make an appointment →