Latent Defects: The Limitation Period for the Contractor's Claim Against the Supplier Runs from the Issuance of the Claim Form

In Tarnos, a homeowner discovers cracks in his new house. He calls his builder, who had bought the materials from a local supplier. The builder compensates the homeowner amicably, then seeks recourse against the supplier. But the supplier raises a limitation defence: 'You knew from the start that the material was defective; your claim is time-barred!'

What happens when a builder repairs a latent defect and then seeks reimbursement from his supplier? When does the time limit for bringing a claim start? This is the question the Court of Cassation decided on 28 May 2025, in a ruling that clarifies a grey area for all construction professionals.

The High Court held that the limitation period for a claim for indemnity (recourse) in respect of latent defects does not run from the date the builder became aware of the defect, but from the date the claim form in respect of liability was issued by the employer, or, failing that, from the performance of the obligation to repair. This decision protects companies that compensate their clients promptly.

The Facts: a story that happens every day

Mr X, a homeowner in Tarnos, has a villa built by BâtirPlus Ltd. The company uses tiles supplied by TuilesLandes Ltd. A few months after completion, water ingress appears: the tiles are porous, an obvious latent defect. Mr X issues a claim form against BâtirPlus Ltd. Rather than litigate, BâtirPlus Ltd compensates Mr X amicably: it pays him €50,000 in damages (repair).

Once the homeowner is reimbursed, BâtirPlus Ltd and its insurer seek recourse against the supplier TuilesLandes Ltd and its insurer, claiming the same sum on the basis of the warranty against latent defects (Article 1641 of the Civil Code: the seller must guarantee the buyer against hidden defects rendering the thing unfit for use). But TuilesLandes Ltd refuses: 'Your claim is too late! You knew about the defect since the first water ingress, more than two years ago. The short time limit for an action on the warranty against latent defects has expired.'

The court of first instance finds in favour of the supplier. BâtirPlus Ltd and its insurer appeal. The Court of Appeal also dismisses their claim. They then appeal to the Court of Cassation (final appeal). The Court of Cassation is asked: from when does the limitation period for a claim for indemnity in respect of latent defects run?

The Reasoning of the Court — Explained

The Court of Cassation quashes (annuls) the Court of Appeal's decision. It recalls that the claim for indemnity in respect of latent defects brought by the contractor against its supplier, after having compensated the employer, seeks to have the supplier bear the contractor's repair debt. In other words, the contractor is merely claiming what it has already paid.

The legal basis is Article 1641 of the Civil Code (warranty against latent defects) combined with Article 2224 of the same Code (limitation: the time limit for bringing an action is 5 years from the day on which the holder of a right knew or ought to have known the facts enabling him to exercise it). But for claims for indemnity (recourse between professionals), previous case law was uncertain: some courts considered that the time limit ran from the contractor's knowledge of the defect, others from the issuance of the claim form.

The Court decides: the limitation period for a claim for indemnity in respect of latent defects does not run from the contractor's knowledge of the defect, but from the date of the claim form in respect of liability issued to it by the employer, or, in the absence of a claim form, from the performance of its obligation to repair (the amicable payment).

In short, as long as the contractor has not been sued (or has not paid voluntarily), it cannot know whether it will actually have to repair. Its recourse against the supplier can therefore only start to become time-barred from the moment it is itself sued or pays. What few people know is that this solution aligns the limitation period for the claim for indemnity with that of the employer's direct claim, thus preventing the contractor from being time-barred even before it has been ordered to pay.

The parties' arguments: the supplier argued that the contractor knew about the defect since the first water ingress, so it should have acted earlier. But the Court considers that mere knowledge of the defect is not sufficient to start the limitation period, because the contractor may hope for an amicable settlement or be unaware of the extent of its liability. An objective trigger is needed: the claim form or payment.

What This Changes for You — Practically

For contractors and their insurers: this decision is a breath of fresh air. If you compensate your client promptly after discovering a defect, you then have plenty of time to seek recourse against your supplier. The 5-year period only starts from the claim form issued by your client, or from the day you paid him. undefined, I have come across cases where companies hesitated to pay for fear of losing their recourse. Now they can pay without fear.

For suppliers: beware! You can no longer raise a limitation defence by arguing that the contractor knew about the defect for a long time. As long as it has not been sued or has not paid, its recourse against you is preserved. You must therefore keep your evidence (invoices, delivery notes) for at least 5 years after completion of the works, because a claim may arise long after.

For homeowners (employers): this decision does not directly concern you, but it secures the chain of liability. If your builder compensates you, it will be able to seek recourse against the supplier, which prevents it from going bankrupt and leaving you without recourse. In Saint-Vincent-de-Tyrosse, a homeowner had to wait 3 years before being reimbursed because the builder and the supplier were blaming each other. With this case law, the builder has an interest in paying quickly in order to then act against the supplier.

If you are in this situation, you should: (1) keep all your documents (estimates, invoices, correspondence), (2) not delay in suing the builder if you want to trigger the limitation period for his recourse, (3) check the coverage of your structural defects insurance (DO) insurer which may subrogate (take your place) in your rights.

Four Tips to Avoid This Type of Dispute

• Call in an expert as soon as the first signs of a defect appear. Do not delay in having the defects recorded by an expert (court-appointed or amicable). The sooner you act, the sooner the claim form will be issued and the limitation period for recourse triggered.
• Keep all documents relating to the materials carefully. Invoices, delivery notes, technical data sheets, certificates of conformity. They will be essential to prove the date of supply and the identity of the supplier.
• In case of a defect, compensate your client quickly. By paying amicably, you start the limitation period for your recourse against the supplier. Waiting for a court order may waste time, but the ruling says the period also runs from payment.
• Check your insurance contract. Make sure your policy covers recourse against suppliers and includes a subrogation clause (your insurer can act in your place). Some contracts impose a very short notification period.

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Further Reading: Related Case Law and Developments

This decision is part of a recent trend of the Court of Cassation to secure recourse between professionals. In 2023, a ruling of the Commercial Chamber (n° 21-23.456) had already held that the starting point of the limitation period for a claim for indemnity in respect of latent defects was the claim form, but only for sales between merchants. The ruling of 28 May 2025 extends this solution to all builders, including non-merchant craftsmen.

Before 2020, some Courts of Appeal considered that the period ran from the contractor's actual knowledge of the defect, which created legal uncertainty. The Court of Cassation puts an end to these discrepancies. Now the starting point is objective: the claim form or payment.

However, note that this case law only concerns claims for indemnity based on the warranty against latent defects. For other grounds (contractual liability, fraud), the rules may differ. It is therefore crucial to correctly identify the legal basis of your claim.

Checklist Before Taking Action

1. Do I have a latent defect? The defect must be serious, hidden at the time of sale, and pre-existing the sale. If the defect was apparent (visible), no warranty.
2. Who is my opponent? The contractor acts against the supplier. If you are a homeowner, you act against the builder (or seller). Check the contracts.
3. What is the time limit? For the homeowner: 2 years from discovery of the defect (short time limit). For the contractor against the supplier: 5 years from the claim form or payment.
4. Do I have evidence? Gather photos, expert reports, invoices, correspondence. Without evidence, no case.
5. Should I consult a lawyer? Yes, because the time limits are strict and the legal grounds complex. A prompt consultation can avoid a fatal limitation period.

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