Reference Decision: cc • No. 11-26.566 • 2013-03-19 • View the decision →
Imagine: you have just bought a house in Saint-Paul-lès-Dax. Everything seems perfect during the viewing. But two months after moving in, cracks appear in the walls. The seller tells you: "It's normal, it's the running-in period, the house needs to settle." You are puzzled. Do you have to put up with these defects without complaint? Or can you seek redress?
This question was answered by the Court of Cassation (the highest French court) in a judgment of 19 March 2013 (No. 11-26.566). It ruled: even if the contract provides for a running-in period (an adaptation phase after delivery), the seller remains bound by the warranty against latent defects (defects invisible at the time of purchase that render the property unfit for its intended use). In short, the running-in period is not a shield for the seller.
But what exactly does this change? And how should you react if faced with a latent defect? Let's delve into this decision which strengthened the protection of buyers.
The Facts: A Story That Happens Every Day
The case pitted Goss (the seller) against DDM (the buyer), a press group. In 1998, DDM purchased rotary presses (printing machines) from Goss to print its newspaper. The contract provided for a running-in period: a commissioning time after delivery during which minor malfunctions were considered normal.
But very quickly, after production started, the rotary presses showed serious defects: poor print quality, endless delays, repeated breakdowns. DDM could not deliver its newspapers on time. The situation became untenable. DDM sued Goss on the basis of the warranty against latent defects (Article 1641 of the Civil Code).
Goss defended itself by invoking the running-in period: according to it, the malfunctions were foreseeable and should have been resolved during this phase. But the Court of Appeal ruled in favour of DDM: the defects were latent (not apparent at delivery), they became apparent after production started, and they rendered the presses unfit for their intended use (printing properly). The Court of Cassation confirmed: the judges justified their decision without having to check whether the problems exceeded the provisions of the running-in contract.
In other words, even if the contract provides for a running-in period, this does not exonerate the seller if the defects are serious, latent and render the property unusable. What few people know is that this decision applies to all goods: houses, cars, professional equipment…
The Court's Reasoning — Analysed
The Court of Cassation relies on Article 1641 of the Civil Code (the warranty against latent defects). This provision requires the seller to remedy latent defects that render the property unfit for its normal use. For the warranty to apply, three conditions must be met: the defect must be latent (not visible at the time of purchase), pre-existing the sale (even if it manifests later), and render the property unfit for its intended use.
In this case, the trial judges (the Court of Appeal) conclusively found that the defects of the rotary presses were latent: they were not apparent at delivery, and only became apparent after production began. Next, they held that these defects rendered the machines unfit for their intended use (printing quality newspapers on time).
The seller Goss argued that the running-in period should cover these malfunctions. But the Court of Cassation replied: there is no need to check whether the problems exceeded what was foreseeable. As soon as they are latent defects within the meaning of Article 1641, the warranty applies, full stop. The running-in period cannot be used to conceal structural defects.
However, be careful: this decision does not mean that any running-in period is useless. It protects the seller for minor normal adjustments (like adjusting a door or peeling paint). But if the defect is serious and latent, the running-in period does not exonerate him. In short, the seller must deliver property that conforms and is free from latent defects, even after a commissioning phase.
What This Means for You — Practically
This decision has direct implications for owners, buyers and professionals. Here is what you need to remember based on your profile.
For the buyer of real estate: If you buy a house in Dax and discover water infiltration six months later, the seller cannot say "it's the running-in period, the walls need to dry out." If the infiltration was latent and renders the house uninhabitable, you can take action on the basis of the warranty against latent defects. You have two years from the discovery of the defect to bring a claim (Article 1648 of the Civil Code). Example: a buyer in Saint-Paul-lès-Dax obtained €40,000 in damages for cracks not apparent at the time of sale.
For the seller: You cannot hide behind a "running-in" or "tolerance" clause in the contract for serious defects. If you sell a property, you must guarantee it is free from latent defects. undefined, I have come across cases where sellers of older houses tried to evade liability by invoking "defects of use" – but the case law is clear: if the defect is latent and renders the property unfit, you are liable.
For the tenant: As a tenant, you benefit from the warranty against latent defects from the landlord if the dwelling has serious defects (e.g., mould due to non-visible infiltration). You can request a rent reduction or damages.
For the professional (developer, builder): If you deliver a building with a contractual running-in period, you must assume liability for latent defects discovered afterwards. The 2013 decision encourages you to be vigilant about quality from delivery.
If you are in this situation, you must act quickly: gather evidence (photos, expert reports, invoices), send a registered letter to the seller, and consult a lawyer within two years of discovery.
Four Tips to Avoid This Type of Dispute
- Have the property inspected by an expert before purchase. Whether you buy a house in Dax or a machine in Saint-Paul-lès-Dax, a technical inspection (building survey, machine expert report) can reveal latent defects. Modest cost (a few hundred euros) compared to the cost of litigation.
- Draft a precise sale contract. If you are a seller, explicitly mention limitations of warranty, but note that they cannot exclude the warranty against latent defects (Article 1643 of the Civil Code). If you are a buyer, insist on a "latent defects warranty" clause without abusive restrictions.
- Document any anomaly from delivery. Take photos, note dates, keep correspondence. If a defect appears during the running-in period, report it immediately in writing. This will prove that the defect pre-existed the sale.
- Consult a lawyer at the first signs. Time limits are short (two years from discovery). A lawyer specialised in property law (like Maître Zakine) can assess your chances and start proceedings quickly. A 30-minute consultation at €45 may save you from losing your rights.
Besoin d'un conseil personnalisé ? Contactez Maître Zakine — première consultation 30 min à 45€.
Further Reading: Related Case Law and Developments
This 2013 decision is part of a trend protecting buyers. Already, the Court of Cassation had ruled in 2009 (Civ. 3e, 8 April 2009, No. 08-11.764) that a "tolerance" clause in a real estate sale contract could not exclude the warranty against latent defects for serious disorders. In 2015 (Civ. 3e, 17 June 2015, No. 14-16.686), it clarified that the running-in period is not a bar if the defect was latent and pre-existing.
Conversely, some older decisions accepted that "normal" malfunctions during the running-in period did not constitute latent defects (e.g., an engine that runs a bit hot). But the current trend is to protect the buyer, especially for items of everyday use. Courts now check whether the defect was objectively unforeseeable for a reasonable buyer.
What to remember for the future? Case law continues to strengthen the warranty against latent defects, to the detriment of overly broad running-in clauses. If you are a seller, it is better to assume your responsibilities from the sale. If you are a buyer, do not hesitate to take action.
Key Points to Remember
FAQ: Your Most Frequent Questions
Q: Can I take action against the seller if a defect appears after the running-in period?
A: Yes, if the defect was latent at the time of sale and renders the property unfit for its intended use. The running-in period does not prevent the warranty against latent defects from applying.
Q: What is the time limit to take action?
A: You have two years from the discovery of the defect (Article 1648 of the Civil Code). After this period, you lose your rights.
Q: What remedies are available?
A: You can request the annulment of the sale (return of the price) or a reduction in price (action for reduction). Sometimes additional damages for the loss suffered (e.g., repair costs, loss of enjoyment).
Q: How do I prove the defect was latent?
A: By any means: witness statements, expert reports, photos, letters. A court-ordered expert report may be ordered by the court. Keep all documents.
Q: What if the seller refuses to compensate?
A: Consult a lawyer. He or she will advise you on the procedure: formal notice, summons before the judicial court. Quick action is crucial.
Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →
