Tacit Waiver of Wine Approval: What Sellers and Buyers Must Know

Imagine: you are a winegrower in Pau, selling 500 hectolitres of AOC Bordeaux wine to a merchant. You agree that the approval (the prior tasting) will take place in your cellars, as local custom dictates. But the buyer, in a hurry, removes half the wine without having tasted it. Later, he complains that the wine 'has neither the colour, nor the structure, nor the ageing potential' expected. Can he still invoke Article 1587 of the Civil Code, which suspends the sale until the buyer has tasted and approved?

This is exactly the question the Court of Cassation decided in 2007. And the answer is crucial for any wine professional, but also for any contract where approval is required: silence is not enough to waive, but clear acts, such as partial removal, can amount to tacit waiver.

This decision, rendered in a Bordeaux dispute, directly concerns actors in the jurisdiction of Pau and Lons, where local customs vary. If you buy or sell wine, cheese, or any goods subject to approval, what you are about to read could save you from a costly lawsuit.

The Facts: A Story That Happens Every Day

Mr. Dupont (fictitious name), a winegrower in Lons, is not involved, but the real case took place in Gironde. The Anglade Cooperative Winery sells 500 hectolitres of AOC Bordeaux wine to the company GVA. The contract does not contain an approval clause, but Article 1587 of the Civil Code applies by default: in the sale of wines, liqueurs and other foodstuffs, the sale is not perfected until the buyer has tasted and approved the goods. Unless waived.

Bordeaux customs require that the approval take place in the seller's cellars. GVA, after having removed approximately 250 hectolitres (half), without having carried out the approval, complains that the wine does not meet the expected quality. It sues the winery in summary proceedings to obtain an expert opinion and suspend payment. The winery, for its part, considers the sale perfected: by removing half the wine without reservation, the buyer tacitly waived his right of approval.

The Bordeaux Court of Appeal rules in favour of the winery: the partial removal, combined with local customs, establishes an unequivocal intention to waive the approval. GVA appeals to the Court of Cassation, arguing that the waiver cannot be tacit and must be express. The Court of Cassation dismisses the appeal and upholds the judgment: the waiver can be tacit as long as the circumstances are clear.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 1587 of the Civil Code, which it cites and explains: this text exempts the buyer from paying until he has tasted and approved the goods. But he may waive this right. The question is in what form.

The High Court recalls a fundamental principle: waiver of a right is not presumed; it must be certain and unequivocal. Silence is not enough. But it clarifies that it can be tacit, i.e., result from facts that unambiguously demonstrate the intention to waive. In this case, the lower judges had noted that the buyer had removed half the wine, without any reservation, and that local customs required the approval in the seller's cellars, before removal. By acting thus, the buyer had certainly waived his right of approval.

The Court therefore validates the reasoning of the appeal judges: it is not a simple silence, but an active behaviour (removal) which, combined with the customs, leaves no doubt. The sale is perfected; the buyer must pay. This decision confirms previous case law: tacit waiver is allowed, but only if it is obvious.

What This Changes for You — Practically

If you are a seller of wine, alcohol, or foodstuffs subject to approval (cheeses, oils, etc.), this decision protects you: you can consider the sale perfected if the buyer, without tasting, takes delivery of a substantial part of the goods. But beware: if the buyer makes a reservation at the time of removal, the waiver is not established. Example: in Lons, a producer of Jurançon sells 200 hectolitres. The buyer takes away 50 hectolitres saying 'I will taste the rest later': the sale is not perfected for the balance.

If you are a buyer, be vigilant: do not take delivery without having tasted, or make an immediate written reservation. Otherwise, you risk having to pay for wine you consider defective. A client in Pau recently lost €15,000 for having removed 30% of a wine order without reservation: the court held that he had waived the approval.

For real estate professionals, the lesson is broader: any waiver of a contractual right must be express or result from clear acts. For example, does a tenant who pays an increased rent without protest waive the right to challenge the increase? Yes, if he pays several times without reservation. Caution requires formalising in writing.

Four Tips to Avoid This Type of Dispute

• Include a written approval clause: in your sale contract, clearly indicate the place, time and manner of approval. In Pau, customs may differ from Bordeaux; it is better to set them out in writing.
• Only take delivery after approval: if you are a buyer, insist on tasting before any removal. If the seller insists on quick delivery, send an email reserving your rights.
• Make an immediate reservation: in case of partial removal before approval, state in writing that you do not waive your right to approve the balance. Example: 'Removal of 50 hl as a precaution, subject to approval of the entire lot.'
• Keep evidence of local customs: if you are a seller, gather testimonials from other professionals or chambers of agriculture to demonstrate that approval in your cellars is the norm. This strengthens your argument in case of a dispute.

Further Reading: Related Case Law and Developments

This decision is part of a consistent line of authority. Already in 1999 (Civ. 1re, 16 February 1999, n° 97-10.123), the Court of Cassation held that a buyer who had received the goods without reservation had waived the right to rely on Article 1587. Conversely, in a 2004 decision (Com., 9 November 2004, n° 02-19.478), it refused tacit waiver because the buyer had raised objections at the time of delivery.

The trend is therefore case-by-case: judges look at the overall conduct of the parties. Since 2007, no legislative change has occurred, but contractual practice has become more refined: many standard contracts now include an express waiver of approval in case of removal. For the future, one can expect courts to become increasingly demanding in characterising tacit waiver, especially in international sales where local customs are less obvious.

What You Absolutely Must Remember

FAQ:

• Can I waive approval orally? Yes, but a written record is better to avoid disputes.
• What if the buyer removes the goods without tasting? Check if he makes reservations. If not, the sale is likely perfected.
• Are local customs enforceable against a foreign buyer? Yes, if they are known or accessible. Prefer to mention them in the contract.
• What is the time limit for approval? No legal time limit; it must be reasonable. In case of prolonged silence, waiver may be inferred.

Buyer's checklist: 1) Read the contract and customs; 2) Taste before any removal; 3) If partial removal, make a written reservation; 4) Keep proof of approval (photo, sample).

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