Reference decision: cc • N° 91-13.598 • 1993-06-22 • View the decision →
Imagine: you have just bought a magnificent villa in Mougins, with a swimming pool and a clear view. You sign the preliminary contract, the seller hands you the keys, everything seems perfect. But three months later, cracks appear on the load-bearing walls. Damp rises. The roof leaks. You contact the seller, who replies: "Sorry, but the contract contains a clause that exempts me from any guarantee."
What to do? I see this situation regularly in my practice in Grasse. Many owners think that a non-guarantee clause deprives them of any recourse. Yet the Court of Cassation said otherwise in a landmark judgment of 22 June 1993 (No. 91-13.598).
This decision protects the non-professional buyer against the professional seller. In short, even if the contract says "no guarantee", the seller who knew (or should have known) of the latent defect remains liable. Explanations.
The facts: a story like many others
In 1989, an individual bought a property from the company Total. Very quickly, latent defects appeared. The owner sued the seller for latent defects (i.e., to obtain compensation for non-apparent defects that render the property unfit for use).
The company Total invoked the exclusive guarantee clause (or non-guarantee clause) in the sale contract. According to this clause, the seller would not be liable for hidden defects. The Court of Appeal ruled in favour of Total and dismissed the buyer's claim. The buyer appealed to the Court of Cassation.
The Court of Cassation quashed the judgment. It criticised the Court of Appeal for not verifying whether the buyer was a professional in the same speciality as the seller. Indeed, the non-guarantee clause can only be effective if the buyer is himself an informed professional, capable of detecting the defect at the time of delivery.
Twist: the Court of Appeal had held that the buyer should have noticed the risks of deterioration due to the age of the property. But the Court of Cassation draws a distinction: risks related to age are not a latent defect. The latent defect is a serious, non-apparent defect. However, the non-professional buyer was not in a position to detect it.
The reasoning of the court — analysed
The Court of Cassation relies on Article 1641 of the Civil Code (which imposes on the seller the obligation to guarantee latent defects). It recalls that a non-guarantee clause is valid, but only if it is invoked in good faith and if the buyer is a professional in the same speciality as the seller. In other words, a professional seller cannot hide behind an exclusion clause against a non-professional buyer.
The reasoning is twofold:
- First, the non-guarantee clause can only exclude liability for latent defects if the buyer had the skills to detect the defect at the time of sale. If the buyer is a private individual, he is presumed not to have those skills.
- Second, the latent defect must be a serious, non-apparent defect that renders the thing unfit for its use. Mere risks of deterioration due to age do not constitute a latent defect. The Court of Appeal had confused the two.
What few people know is that this solution has been consistent since a landmark judgment of the mixed chamber of the Court of Cassation in 1992. The judges protect the non-professional buyer, considered the weaker party. The judgment of 22 June 1993 confirms this trend.
What this means for you — practically
If you are a landlord in Cagnes-sur-Mer, and you sell an old flat with a non-guarantee clause, know that this clause will not protect you if the buyer discovers a latent defect (e.g., water infiltration in the walls, not visible during viewings). You will be liable to repair or compensate, unless the buyer is a property professional.
For a private buyer, this decision is a valuable weapon. If you buy a property from a professional (developer, estate agent, property trader), the non-guarantee clause cannot be invoked against you. You can take legal action within two years of discovering the defect (Article 1648 of the Civil Code).
In practice, the amounts involved can be high: in Mougins, a villa worth €500,000 with latent defects (e.g., defective foundations) may require €80,000 worth of work. Without this case law, the buyer would have had to bear this cost alone.
Be careful, however: if you buy from a private individual, the non-guarantee clause is fully valid. You will not be able to claim against the seller, unless he knew of the defect and did not inform you (fraud).
Four tips to avoid this type of dispute
- Carry out technical diagnostics before the sale: for an old property, an inspection by a consultancy firm (structure, plumbing, electricity) can detect potential defects. Cost: €500 to €1,500, but it avoids much more costly litigation.
- Do not accept a non-guarantee clause without negotiating the price: if the seller insists on such a clause, ask for a price reduction in return for the risk you are taking. For example, 10% off the sale price.
- Keep all documents and correspondence: emails, photos, expert reports, etc. In the event of a dispute, these will prove that the seller knew or should have known of the defect.
- Consult a lawyer before signing: an initial consultation (€45 with Maître Zakine) can save you months of proceedings. A lawyer will advise you on the scope of the clauses and the remedies available.
Further reading: related case law and developments
This decision is part of a protective line for non-professional buyers. As early as 1992, the mixed chamber of the Court of Cassation (28 February 1992) held that a non-guarantee clause could not be invoked against a non-professional buyer by a professional seller. The judgment of 22 June 1993 confirms and clarifies this principle.
Since then, case law has evolved: the Court of Cassation now requires that the professional seller actually knew of the defect (or could not have been unaware of it) for liability to arise (Civ. 3e, 12 January 2022, No. 20-18.014). This reinforces the protection of the buyer.
On the other hand, for sales between private individuals, the non-guarantee clause remains valid. That is why it is crucial to have the property inspected before buying.
Frequently asked questions
- Can I take action if I bought a property with a non-guarantee clause and discover a latent defect? Yes, if the seller is a professional. You have two years from the discovery of the defect to bring a claim. Consult a lawyer without delay.
- What is the difference between a latent defect and an apparent defect? A latent defect is a serious, non-visible defect that renders the property unfit for its use. An apparent defect is visible (e.g., a crack in the facade). The non-guarantee clause only covers latent defects, not apparent defects.
- What if the seller denies having known of the defect? Case law presumes that a professional seller knew of the defect. It is for him to prove the contrary. For a private seller, you must prove his knowledge.
- What are the costs of a latent defect claim? A judicial expert's report costs €1,500 to €5,000, legal fees vary (fixed fee or hourly rate). But if you win, the seller may be ordered to pay costs.
- Can I sell a property with a non-guarantee clause if I am a private individual? Yes, but you must declare all defects of which you are aware. Otherwise, you risk an action for fraud (vice of consent) and damages.
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Are you in a similar situation? An initial 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →
