Latent defect in thuja plants: who must prove the defect?

Imagine: you have just bought a hundred thuja plants to create a hedge around your property in Castelnaudary. You plant them carefully, water them, pamper them. But a few weeks later, the plants turn yellow, wither, and eventually half die. What to do? Do you think of a warranty? Do you think the seller must reimburse you? Not so fast. A decision of the Court of Cassation from 1976, still valid today, reminds us of an essential rule: it is for the buyer, not the seller, to prove that the plants were affected by a latent defect (an invisible defect at the time of sale) at the time of delivery. This judgment, rendered in a case between two nurserymen from Toulouse, sets the framework for the action for redhibition (action to annul the sale for latent defect). But what does this change concretely for you, property owner or professional? Let's dive into this story of thujas.

The facts: a story like many that happen every day

In 1969, Mr. Lacausse, a nurseryman in Toulouse, sold thuja plants to Mr. Marchand, also a nurseryman. The contract was oral, without any particular clause. Marchand planted the thujas on his land, but the recovery was catastrophic: an abnormal proportion of plants did not take. Marchand sued Lacausse, seeking the resolution of the sale (annulment) for latent defect, and alternatively, for lack of conformity. He argued that Lacausse had impliedly guaranteed a good recovery because he knew the plants were intended for planting.

Before the Court of Appeal, the judges ruled in favour of Marchand: they ordered the resolution of the sale, but without clearly ruling on the nature of the warranty. Lacausse appealed to the Court of Cassation. The Court of Cassation, in its judgment of 15 January 1976, quashed the decision: it held that the Court of Appeal had not responded to Marchand's submissions on the implied warranty and had dismissed the argument without examining it. In short, the Court of Appeal should have verified whether the seller had indeed guaranteed recovery, even implicitly. But the High Court particularly recalled that, in the context of the action for redhibition, it is for the buyer to prove the existence of a latent defect.

The reasoning of the court — analysed

The Court of Cassation relied on Article 1641 of the Civil Code (which defines the warranty against latent defects: the seller is bound to warrant hidden defects that render the thing unfit for its intended use). It recalled that the action for redhibition (action to nullify the sale) requires the buyer to prove three elements: 1) the existence of a defect, 2) that it was hidden at the time of sale, 3) that it renders the thing unfit for its normal use or diminishes its use so much that the buyer would not have acquired it or would have paid a lower price.

In this case, Marchand had not provided proof that the plants were defective. He merely invoked the failure to recover, which could be due to external causes (poor planting, weather, etc.). The Court of Appeal had nevertheless ordered the resolution, but without characterising the defect. The Court of Cassation censured this reasoning: since no defect was demonstrated, the warranty against latent defects could not apply. As for the implied warranty of good recovery, the Court of Appeal dismissed it without responding to Marchand's submissions. The High Court therefore referred the case to another Court of Appeal. What few people know is that this judgment is a classic in matters of proof: it places the burden of proof on the buyer and reminds that the mere observation of a failure to recover is not sufficient to presume a defect.

What this means for you — concretely

For you, property owner or professional, this decision has very practical implications. If you buy plants, trees, or even real estate and discover a defect, it is up to you to prove that the defect existed before the sale and was hidden. In other words, you cannot simply say "it doesn't work"; you must demonstrate, for example through an expert report, that the plants were affected by a disease or a growth defect prior to planting.

Take an example: you are a property owner in Toulouse and you buy a house with a garden planted with thujas. A year later, the trees die. To activate the warranty against latent defects, you will need to prove that the thujas were already diseased at the time of sale, for instance via a forestry expert report. Otherwise, the seller may argue that the death was due to your maintenance or drought. If you are a professional (nurseryman, landscaper), the same rule applies. However, if the seller expressly guaranteed recovery in the contract (warranty clause), then the proof is easier: it suffices to note the failure to recover. But in the absence of a clause, proof of a latent defect is required.

undefined, I have encountered cases where individuals lost their thuja hedges after a few months, without being able to succeed due to lack of proof. However, beware: if the defect is apparent (for example, plants already yellow at delivery), you must act immediately, because the warranty against apparent defects does not apply. You have a period of two years from the discovery of the defect to take action (Article 1648 of the Civil Code).

Four tips to avoid this type of dispute

• Have a bailiff's report or expert report drawn up at the first signs of deterioration: this will allow you to freeze the proof of a possible prior defect. A simple photographic record may be insufficient.
• Insist on a recovery warranty clause in your plant purchase contract: a serious professional may agree to guarantee a minimum recovery (e.g., 90%). This saves you from having to prove a latent defect.
• Keep all documents: invoice, delivery notes, photos, etc. Proof of the purchase date and the nature of the plants is essential. Without an invoice, it is difficult to establish the contractual link.
• If in doubt, have the soil and plants analysed by a laboratory: certain diseases (such as phytophthora) are detectable. An analysis report can make the difference in court.

Further reading: related case law and developments

This 1976 decision is part of consistent case law: the burden of proving a latent defect lies with the buyer. A later judgment, for example Civ. 1re, 20 March 2001, No. 99-10.405, specifies that the buyer must prove that the defect existed before the sale and was hidden. The tendency of the courts is not to presume the defect from the mere malfunction. In matters of plant sales, the Court of Cassation has even specified that the failure to recover does not in itself constitute a latent defect (Civ. 3e, 10 May 2012, No. 11-14.930). This means that for thuja hedge disputes, the action under the warranty against latent defects is difficult to win without solid expert evidence. On the other hand, an action in contractual liability (Article 1231-1 of the Civil Code) could be considered if the seller failed in his duty to advise or to deliver conforming goods. But again, proof is necessary.

What you absolutely must remember

Here is a checklist of key points to remember:

• Who must prove? The buyer must prove the existence of a latent defect (defect prior to the sale, invisible, rendering the thing unfit).
• What to do if your thujas die? Have the damage recorded quickly, gather evidence (photos, witness statements), and consult an expert to determine the cause.
• What is the time limit? Two years from the discovery of the defect to take legal action (Article 1648 of the Civil Code).
• What if the seller guaranteed recovery? You do not have to prove the defect, only the failure to recover. Check your contractual documents.
• Alternative? If proof of the defect is impossible, consider an action for lack of conformity (Article 1604 of the Civil Code) if the delivered goods do not correspond to the order (e.g., different variety).

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In summary, this 1976 judgment reminds us of a golden rule: in matters of sale, proof is key. Never neglect the collection of evidence at the first signs of a problem.

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