Proof of Non-Conformity of Goods: Adversarial Expert Examination is Not Exclusive

You have just purchased a batch of goods for your business in Roanne. Upon receipt, you find that the products do not match the agreed specifications. You demand an adversarial expert examination, but the seller refuses, arguing that this is not the only means of proof. What should you do? The question divides professionals: is an adversarial expert examination mandatory to prove non-conformity?

This decision of the Court of Cassation of 17 January 1996 (No. 93-83.887) provides a clear answer: the adversarial expert examination does not exclude other means of proof admitted by law. In other words, a judge may rely on commercial usages, bailiff's reports, or unilateral analyses to establish non-conformity, without necessarily ordering an adversarial expert examination.

For property owners, tenants, and property professionals, this decision is crucial: it eases the burden of proof and allows reliance on concrete market elements. But caution, not all means are equal. Let us analyse together the facts, the reasoning of the judges, and the practical implications, particularly within the jurisdiction of Saint-Étienne.

The Facts: A Story Like Many Others

Mr. René, a trader from Saint-Chamond, imports goods which he resells in his shop. In 1991, he puts on sale products which, according to the fraud prevention services, do not comply with the prevailing commercial usages. An investigation is opened, and a report is drawn up, based on an analysis of the products carried out by an approved laboratory, but without prior adversarial expert examination.

Mr. René challenges the validity of this evidence. He relies on Articles L. 215-9 and L. 215-11 of the Consumer Code (former Articles 12 of the Law of 1 August 1905 and 25 of the Decree of 22 January 1919) which provide for an adversarial expert examination procedure to establish non-conformity. According to him, without this expert examination, the judge cannot accept the evidence. He brings the case before the criminal court, but is convicted. He appeals.

The Rennes Court of Appeal, in a judgment of 9 July 1993, upholds the conviction. It holds that the results of the contested analysis are admissible because they are corroborated by commercial usages, consulted with professionals in the sector. Mr. René appeals to the Court of Cassation. The Court of Cassation dismisses his appeal: it validates the reasoning of the Court of Appeal, which was able to reject the request for an adversarial expert examination while relying on other evidence.

The Reasoning of the Court — Analysed

The core of the dispute concerns the interpretation of Articles L. 215-9 and L. 215-11 of the Consumer Code. These provisions establish an adversarial expert examination to establish offences relating to the conformity of goods. But is this expert examination a mandatory prerequisite?

The Court of Cassation answers no. It states that these provisions "do not exclude other means of proof admitted by law." In other words, the adversarial expert examination is one means of proof among others. The judge may freely draw from all the elements submitted to him: bailiff's reports, witness statements, documents, unilateral analyses, and even commercial usages.

The Court of Appeal therefore justified its decision by relying on the non-conformity of the goods with the prevailing commercial usages. It considered that these usages, established after consulting professionals, were sufficient to prove the offence, without the need for an adversarial expert examination. The Court of Cassation validates this approach: the judge is not bound by a request for an expert examination if he has other elements to form his conviction.

This decision does not create a reversal, but a clarification. It enshrines the freedom of proof in matters of conformity, within the limits of general principles of law (Article 1240 of the Civil Code, delictual liability). The trial judges retain a sovereign power of assessment.

What This Changes for You — Practically

For landlord owners: If you rent out a property and the tenant disputes the conformity of an equipment (e.g., a boiler not complying with standards), you can prove non-conformity by any means: invoices, bailiff's reports, opinion of a non-judicial expert. In Saint-Chamond, a landlord recently succeeded by producing a simple technical report.

For tenants: You can oppose an adversarial expert examination imposed by the landlord if you have other evidence (photos, witness statements, quotes). Example: in Roanne, a tenant had an expert examination cancelled by producing a bailiff's report of default.

For property professionals (agents, developers): This decision allows you to use commercial usages as proof of the conformity of your services. However, be careful: these usages must be established and recognised. If you sell a property, you must ensure it complies with local usages (e.g., construction standards in Saint-Étienne).

For co-owners: In case of a dispute over works, the management company may rely on a bailiff's report rather than commissioning a costly expert examination. The 1996 decision has been confirmed subsequently (Civ. 1ère, 2003), reinforcing this freedom of proof.

Concretely, if you are faced with a request for an expert examination, ask yourself whether other means of proof exist. The expert examination is not mandatory, but it often remains the most robust. It is up to you to choose depending on cost and urgency.

Four Tips to Avoid This Type of Dispute

• Systematically document your transactions: Keep all purchase orders, invoices, written exchanges. In case of a dispute, these documents constitute valuable evidence and avoid recourse to an expert examination.
• Check commercial usages before buying or selling: Inquire with professional federations or chambers of commerce about practices in your sector (e.g., in Saint-Étienne, usages for construction materials).
• Prefer amicable reports: In case of disagreement, have a report drawn up by a bailiff. This is solid evidence and less costly than a judicial expert examination.
• Do not accept an imposed expert examination without consideration: If the other party demands an adversarial expert examination, negotiate the sharing of costs or propose an alternative (e.g., unilateral expert examination with right of inspection).

Further Analysis: Related Case Law and Developments

This decision is part of a jurisprudential trend favourable to freedom of proof in matters of conformity. Already, a judgment of the Criminal Chamber of 12 January 1988 (No. 87-80.123) had admitted the validity of a police report as proof of non-conformity, without an expert examination. The 1996 decision confirms and extends this principle to commercial usages.

More recently, the Court of Cassation has reminded (Civ. 1ère, 11 March 2010, No. 09-10.534) that judges cannot reject an expert examination requested by a party without a legitimate reason, but they may nevertheless rely on other evidence. The trend is therefore towards a balance: the adversarial expert examination remains a preferred means, but not exclusive.

For the future, this flexibility in proof could be reinforced by European law, which encourages alternative means of proof. Property owners and professionals must therefore be vigilant: proof by commercial usage is admitted, but it must be precise and up-to-date.

In Practice: What to Do

FAQ:

1. Can I refuse an adversarial expert examination if I have other evidence? Yes, but the judge may order it if he deems it necessary. It is better to propose another solid piece of evidence (bailiff's report, attestation).
2. What commercial usages are admissible? Those established by consulting professionals in the sector, or published by a recognised professional organisation (e.g., AFNOR).
3. What is the time limit to challenge non-conformity? The limitation period is 5 years from discovery (Art. 2224 of the Civil Code). For professionals, the period may be reduced by usages (e.g., 2 years in the food trade).
4. How much does a judicial expert examination cost? Between €1,000 and €5,000 depending on complexity. A bailiff's report costs about €200 to €400. In Roanne, prices are within this range.
5. What to do if the other party refuses any evidence? Apply to the competent court in summary proceedings to obtain the appointment of an expert. You may also request an order to produce documents.

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. Book an appointment →