Reference decision: cc • No. 06-11.343 • 2007-12-21
Imagine yourself in Mimizan, on the Landes coast, having just bought a second home with a swimming pool. After a few weeks, the filter pump breaks down. You think of a hidden defect (a concealed defect making the property unfit for its use). But the seller argues that the pump was old and that you accepted the condition of the property. What to do? This decision of the Court of Cassation of 21 December 2007 answers a question that any owner may ask: must the judge, of his own motion, convert your action for hidden defect into an action for lack of conformity (difference between what was agreed in the contract and what is delivered)? The answer is no. Explanations.
The facts: a story like many that happen every day
Mr X, an owner in Parentis-en-Born, buys a second-hand vehicle from a private individual. Shortly afterwards, he notices recurring mechanical problems. He sues the seller before the court, relying on the hidden defects of Article 1641 of the Civil Code (warranty against hidden defects: the seller must guarantee hidden defects making the property unfit for its intended use). He seeks a reduction in the sale price. The Court of Appeal dismisses his claim, holding that he does not prove the existence of a defect existing before the sale. Mr X appeals to the Court of Cassation: according to him, the Court of Appeal should have considered whether the defects were rather a breach of the obligation to deliver conforming goods (the seller's obligation to deliver goods that comply with the contractual terms). In other words, he criticises the judges for failing to reclassify his claim of their own motion.
The reasoning of the court — analysed
The Court of Cassation dismisses the appeal. It recalls the principle: Article 12 of the Code of Civil Procedure requires the judge to give the facts their correct legal classification, but does not oblige him to change the legal basis of the parties' claims, except under special rules. In short, if the buyer bases his action on hidden defects, the judge does not have to substitute himself for the buyer to consider whether another classification (such as lack of conformity) would be more appropriate. Since the proof of a hidden defect has not been provided, the dismissal is justified. What few people know is that this solution is not new: it confirms previous case law (Civ. 1st, 18 May 2005, No. 03-12.858) according to which the judge is not required to remedy the parties' failure to choose the legal basis. Thus, the buyer must choose his action from the outset.
What this changes for you — in practice
For a buyer: if you discover a defect in a property you have just bought, you must determine whether it is a hidden defect (a serious, concealed defect existing before the sale, rendering the property unfit for use) or a simple lack of conformity (a property different from what was agreed in the contract). The two actions do not have the same time limits: an action for hidden defect must be brought within two years of the discovery of the defect (Article 1648 of the Civil Code), while an action for non-conforming delivery is subject to the ordinary five-year limitation period (5 years from delivery). Concrete example: in Parentis-en-Born, a buyer who buys a house with a defective roof not visible at the time of the visit. If he alleges a hidden defect, he must prove that the leak existed before the sale and that it is serious. If he alleges a lack of conformity, he must prove that the seller had promised a roof in good condition. If you are in this situation, you must consult a lawyer to choose the correct basis, because the judge will not do it for you.
Four tips to avoid this type of dispute
- Have the property inspected by an expert before purchase. For a vehicle, a recent MOT test can reveal defects. For real estate, a full technical survey (roof, plumbing, electrical) is essential.
- Keep all contractual documents. The sale contract, the inventory of condition, written exchanges with the seller: they will serve to prove the promised condition of the property.
- Act quickly as soon as a defect is discovered. Note the date of discovery and send a recorded delivery letter to the seller to inform him. This will start the limitation periods.
- Consult a lawyer before suing. A professional will help you legally classify your situation (hidden defect or lack of conformity) and gather the necessary evidence.
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Further reading: related case law and developments
The decision commented on belongs to a constant line of authority: the judge does not have to remedy the parties' failure to choose the legal basis. One can cite a judgment of the Court of Cassation of 18 May 2005 (No. 03-12.858) which adopts the same solution. However, a more recent trend (Civ. 3rd, 22 September 2016, No. 15-13.296) seems to relax the rule in matters of warranty against hidden defects: the judge may raise of his own motion the ground based on lack of conformity if the facts justify it, but he is not obliged to do so. In other words, it is better not to rely on this possibility. In future, case law could evolve towards a greater obligation on the judge to reclassify, but that is not yet the case. In the meantime, be vigilant.
Frequently asked questions
- What is a hidden defect? A concealed defect of the property that renders it unfit for its intended use, or which diminishes that use so much that the buyer would not have bought it (or would have paid a lower price) if he had known of it. Example: a house sold with non-apparent termites.
- What is the difference between a hidden defect and a lack of conformity? A hidden defect is a defect inherent in the property, existing before the sale, not apparent. Lack of conformity is a difference between what was agreed in the contract and what is delivered. Example: the seller promises new carpet, but it is worn: that is a lack of conformity.
- What are the time limits for taking action? For hidden defect: 2 years from the discovery of the defect (Article 1648 of the Civil Code). For lack of conformity: 5 years from delivery (ordinary limitation period).
- Can I change the legal basis during the proceedings? Yes, but only if you do it yourself, by a new claim. The judge will not do it for you. So it is better to think carefully from the start.
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