Latent defect: buyer loses claim for lack of adversarial expert report

Picture the scene: you have just bought a house in Tarnos, near Mont-de-Marsan. Everything seems perfect. But a few weeks after moving in, the boiler breaks down. You call a tradesman, who tells you it is a manufacturing defect, therefore a latent defect (a defect not apparent at the time of purchase that renders the property unfit for its use). You have it repaired on the spot, without waiting. Then you sue the seller for reimbursement. The question you ask yourself: must the seller pay? The answer from this 1981 decision is clear: no, if you have not had the defect inspected by an expert in the presence of the seller. Explanation.

The facts: a story like those that happen every day

The company SGEEM (Société Générale d'Entreprise Electro-Mécaniques) purchases galvanised equipment from the company L'Arconnerie Française. After delivery, defects appear. SGEEM has the equipment repaired without requesting an adversarial judicial expert report (i.e., an expert report ordered by the court, in which the seller can participate). Then it sues the seller under the warranty against latent defects (the seller's obligation to remedy hidden defects). The Court of Appeal dismisses SGEEM's claim. Why? Because, in the absence of an adversarial expert report, the expert could not determine whether the defects existed before delivery (an essential condition for the seller to be liable). The Court of Cassation, on 8 July 1981, upheld this reasoning. In short, the buyer who rushes to repair loses the proof of the latent defect.

The court's reasoning — broken down

The judges apply Article 1641 of the Civil Code (which defines the warranty against latent defects) and Article 1315 (now 1353) on the burden of proof. The principle: it is for the buyer to prove that the defect existed before the sale. In this case, SGEEM had the equipment repaired without an adversarial expert report. Result: it is impossible to know whether the defects arose from a cause after delivery (misuse, normal wear and tear, etc.). The Court of Appeal therefore rightly held that the buyer failed to prove the latent defect. In other words, the seller does not have to answer for defects whose origin cannot be proved. This is neither a development nor a reversal: it is a classic application of the law of evidence. But the judgment reminds us of a golden rule: do not touch the property before having the defects inspected.

What this means for you — practically

If you are a buyer of a house or property in Saint-Vincent-de-Tyrosse, and you discover a defect after the sale, you must imperatively: do not repair before having an adversarial inspection. Example: your roof leaks. You call a roofer who replaces the tiles. Later, you want to sue the seller for latent defect. Without an adversarial expert report, the court will dismiss your claim, as in this case. For a landlord, this means that in the event of a defect in a tenant's property, you must act with caution: have the defect inspected before any repair. For a co-owner, same: if a common facility is defective, do not have it repaired without an expert report. undefined, I have come across cases where buyers lost several thousand euros because they repaired too quickly. So, how should you react? First, do not touch anything. Then, contact a lawyer to find out whether a judicial expert report is necessary.

Four tips to avoid this type of dispute

• Never repair before an inspection: as soon as a defect appears, take photos, note the date, and inform the seller by registered letter. Have an amicable expert come, but ideally request a judicial expert report.
• Require an adversarial expert report: if you hire a private expert, summon the seller to the expert report by registered letter. Otherwise, the expert report will not be binding on them.
• Keep all documents: invoices, emails, photos, reports. Any evidence proving the defect existed beforehand is crucial.
• Act quickly: the warranty against latent defects must be invoked within two years from the discovery of the defect (Article 1648 of the Civil Code). After this period, you lose all recourse.

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Further reading: related case law and developments

This 1981 decision is consistent. For example, the Court of Cassation held in 2019 (Civ. 3e, 13 June 2019, No. 18-15.701) that a buyer who repairs without a prior expert report cannot rely on the warranty against latent defects. The trend is clear: courts are strict on proof. For the future, the ELAN law of 2018 has not changed this rule. But note: since the 2016 reform of contract law, the obligation of conformity (Article 1604) can sometimes be invoked instead of the warranty against latent defects, with a less strict burden of proof. However, for latent defects, the rule remains unchanged.

What you absolutely must remember

Here is a checklist of what to do if you discover a defect after a purchase:

1. Do not repair the property.
2. Photograph and document the defect.
3. Inform the seller by registered letter with acknowledgment of receipt.
4. Request a judicial expert report in summary proceedings (emergency procedure) to have the defect inspected adversarially.
5. Consult a lawyer to bring the action within the time limits.

In summary: proof of a latent defect is unforgiving. Without an adversarial expert report, no recourse. What few people know is that a simple repair can cost you thousands of euros. So, before taking out your chequebook, take out your phone to take photos and call your lawyer.

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