Extract
[...] The thing object of the contract was not in fact in conformity, having different dysfunctions. As a result, it had requested the resolution of the sale for latent defects and, subsidiarily, for non-conforming delivery, this being only partial. The sales contract is in fact a synallagmatic contract by which the contracting parties respectively engage to deliver the thing and to pay in exchange. Even if the sale, today, is no longer that originally provided for by the civil code, its essential effect, the transfer of ownership, remains. [...]
[...] The GAEC had then filed a cassation appeal. To reject the GAEC's request, the Court of Appeal had stated that the GAEC had not acted « in delivery of the four elements that had never been delivered, such as the care box, the mucking out, and the detection of blood and hooves. The question thus posed to the Court of Cassation is as follows: when an unsatisfied buyer who has been partially delivered wishes to obtain guarantees of sale, can he act in resolution of the sale or in delivery of the missing elements? [...]
[...] For this reason, delivery does not transfer possession or ownership of the thing sold, but detention. Now, delivery must be made in accordance with the contractual specifications agreed upon by the parties. Was this the case in the present case? B. A double visa fixing clear delivery obligations The first civil chamber quashed the appeal judgment at the double visa of article 1604 mentioned above and 1610 of the Civil Code. It holds that « the buyer of a partially delivered thing has the choice of acting in delivery of the missing elements or in resolution of the sale. [...]
[...] The buyer, the GAEC, could have either requested the forced execution of the delivery or the resolution of the sale. The Court of Appeal, which had considered that the request based on the delivery of the thing as agreed could not be accepted because the buyer had not acted for delivery but for resolution of the sale, had then violated the two articles mentioned here of the Civil Code. According to the High Court, in fact, even if the thing had only been partially delivered, due to its various malfunctions, this did not remove the possibility for the buyer to act on the grounds of resolution of the sale or « the delivery of the missing elements. [...]
[...] Furthermore, delivery deadlines clauses must be written at the sole initiative of the professional and cannot therefore be left to chance. It is therefore evident that the two regimes, although in the matter of the obligation of delivery in conformity, differ because the contractual freedom guaranteed in the professional context is major compared to that limited and regulated in the non-professional contractual context. In this case, therefore, by referring to Article 1610 of the Civil Code, the ruling ultimately confirms, albeit implicitly, that the parties had the possibility of providing for everything in the contract and that, in particular, the seller could have inserted adapted clauses. [...]
