Late Delivery: Can the Seller Be Ordered to Pay Reinstatement Costs?

Imagine: you buy a tractor for your farm in Meylan, with delivery scheduled for 1 March for the sowing season. The seller promises, reassures you, but the equipment only arrives on 15 June. Worse, the engine is clogged, the tyres worn. It has clearly been used during those three months. You need to restore it. Who pays? Dozens of owners and professionals ask me this question every year in my practice in Grenoble. The decision of the Court of Cassation of 25 October 1972 (No. 70-14.121) provides a clear answer: the seller who delays delivery and uses the property must bear the consequences, including reinstatement costs. Let us see together what this concretely changes for you.

But what exactly does this change for a private individual or a professional? In short, this case law protects the buyer against abuses by the seller who, after receiving the price, retains use of the property and returns it in poor condition. The court will not require you to prove the exact condition of the equipment on the day of sale: it is for the seller to prove that they did not damage the property. A reversal of the burden of proof (i.e., who must prove what) that changes everything.

Please note, however: this decision dates from 1972. It remains relevant because the Court of Cassation has confirmed it several times since, but it must be applied with modern texts: Article 1240 of the Civil Code (liability for fault) and Article 1605 of the Civil Code (obligation of conforming delivery). Let us look at the precise facts of this case to understand properly.

The Facts: A Story Like Many Others

The company "Établissements Touillet et Compagnie" buys equipment (probably construction machinery) from the company Rohou. Delivery is fixed for a specific date, but Rohou does not deliver on time. Worse, for several months after the agreed date, Rohou continues to use the equipment. When it finally delivers it, the machine is in poor condition: abnormal wear, requiring repairs. Touillet must restore it before reselling it, which further delays the resale and causes commercial loss (loss of customers, blocked cash flow).

Touillet sues Rohou for damages (pecuniary compensation for the loss) covering reinstatement costs and loss of profit. Rohou defends itself by arguing that it is for the buyer to prove the deteriorated condition of the equipment, and that nothing shows that the wear is abnormal. The dispute goes up to the Court of Cassation.

What few people know is that the Court of Appeal had ruled in favour of Touillet, but on an erroneous ground: it considered that the mere delay in delivery was sufficient to reverse the burden of proof. The Court of Cassation corrects this: yes, the delay can reverse the burden of proof, but the seller must also have used the equipment after the agreed date. It is this combination (delay + use) that justifies the award of damages.

The Court's Reasoning — Analysed

The Court of Cassation (Commercial Chamber) had to answer a technical question: must the seller who delivers late and has used the property during that delay pay the reinstatement costs? Its answer is yes, but for precise reasons.

The legal basis is the former Article 1382 of the Civil Code (now Article 1240), which provides: "Any act whatsoever of a person which causes damage to another obliges the person by whose fault it occurred to compensate it." In plain language: if you cause harm to someone through your fault, you must compensate them. Here, Rohou's fault is twofold: first, the delay in delivery (contractual non-performance), and second, the use of the equipment during that delay (abuse of trust). The damage is the deterioration of the equipment and the loss of the chance to resell it in time.

The Court confirms the principle that the seller must deliver the property on the agreed date (Article 1605 of the Civil Code). The delay constitutes a fault. But the originality of the judgment lies in the burden of proof: the Court of Appeal had said that the delay reversed the burden of proof (it is for the seller to prove that the condition is normal). The Court of Cassation considers this ground "erroneous but superfluous" (i.e., unnecessary for the decision). In reality, it is the use by the seller after the delivery date that makes the deterioration likely and justifies placing the burden of proof to the contrary on the seller. In other words, this is not a general rule, but an application of the circumstances.

What is interesting is that the Court of Cassation does not create a new right, but applies the logic of contractual liability: the seller who does not deliver on time and, moreover, uses the property, must answer for it. undefined, I have encountered cases where sellers of agricultural equipment in Échirolles kept the machine "to finish a job" and returned it dented. This judgment reminds them that they cannot impunely use another's property.

What This Changes for You — Concretely

For a landlord seller: if you sell a property with a delivery date, and the buyer allows you to stay a few days after the sale, be careful not to damage the property. If you do, you could be ordered to pay for repairs. Example: a tenant sells his flat in Meylan, delivery on 1 June. He stays until 15 June "to finish packing" but damages the carpet. The buyer can claim €1,500 in reinstatement costs, and the seller must prove that the carpet was already damaged before.

For a buyer (professional or individual): if you buy equipment (car, machinery, machine tool) and the seller delivers late with damage, you can claim compensation without having to prove the initial condition. It is for the seller to demonstrate that the wear is normal. For example, a craftsman in Échirolles buys a compressor delivered two months late with oil leaks. He can obtain reimbursement of repair costs (€800) and even compensation for loss of profit (lost contract).

For a co-owner or housing association: if you order renovation works and the company delivers late with damaged materials (e.g., scratched windows), this judgment protects you. You do not have to prove that the scratches did not exist before: it is for the company to do so. However, be careful: you must demonstrate that the company used the materials after the agreed date, which is often the case if it stores them on its premises.

Four Tips to Avoid This Type of Dispute

• Require a joint delivery report: upon receipt of the property, have its condition recorded in writing with the delivery person. Take dated photos. If the seller delays delivery, send a formal notice (registered letter with acknowledgement of receipt) to set a new deadline and mention that you reserve the right to claim damages.
• Include a penalty clause in the contract: provide for a fixed sum in case of delay (e.g., 1% of the price per day of delay). This avoids having to prove actual loss. Courts uphold these clauses unless they are manifestly excessive.
• Do not let the seller use the property after the sale: if you accept a flexible delivery date, require that the property remain idle or be stored under your responsibility. If the seller uses it, you lose control. Have an addendum signed specifying the storage conditions.
• Keep all written exchanges: emails, letters, text messages. In case of dispute, the agreed delivery date and exchanges about the delay will be your best evidence. If the seller proposes a postponement, ask for written confirmation.

Further Reading: Related Case Law and Developments

This 1972 decision is part of a consistent line of the Court of Cassation. For example, in a judgment of 12 November 1998 (No. 96-22.689), the Court held that the seller who delivers a non-conforming property (e.g., an accident-damaged vehicle) must bear the consequences, even if the buyer did not prove the defect existed before the sale. More recently, in a judgment of 3 May 2018 (No. 17-13.537), the Court extended this principle to online sales: the professional seller must prove that the property was in conformity at the time of delivery.

The trend of the courts is therefore towards protecting the buyer, especially when the seller had control of the property between the sale and delivery. What this means for the future: if you are a seller, be extremely cautious if you retain the property after the sale. A non-use clause or a joint inspection report is strongly recommended. If you are a buyer, do not hesitate to claim compensation for damage, even if you have no photos of the initial condition.

Summary and Next Steps

FAQ:

1. What should I do if the seller delivers late and the equipment is damaged?
Gather evidence of the delay (contract, emails), have the damage recorded by an expert or photos, then put the seller on formal notice to repair or compensate. If refused, bring the case before the judicial court (or commercial court if professional).

2. Can I obtain damages for loss of profit?
Yes, if you prove that the delay caused you to lose a client or business. For example, a craftsman who could not rent out his machinery for three months can claim the amount of lost rental income.

3. What are the time limits for taking action?
An action for contractual liability is subject to a 5-year limitation period from delivery (Article 2224 of the Civil Code). For sales between professionals, the period is often also 5 years, but check your contract.

4. Do I have to hire a lawyer?
If the amount in dispute is less than €10,000, you can bring the case before the local court without a lawyer. But for larger amounts, a lawyer is mandatory before the judicial court. A preliminary consultation can assess your chances.

5. What if the seller is insolvent?
Before buying, check the seller's solvency (company registration, accounts). In case of insolvency, you can attempt to seize their accounts, but recovery chances are low. It is better to provide for a guarantee (surety, insurance).

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