The distinction between hidden defects and non-conformity in sales law is crucial in determining the liability of the seller. The Court of Cassation rules on the matter, providing clarity on the application of Article 1641 of the Civil Code.
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[...] His bad faith will be quite difficult to prove. It will be otherwise if they occur regularly, every time it rains . 14 In this particular case, the judges do not rule on the question of the seller's bad faith, due to the lack of evidence provided by the buyer. Thus, this rigor is inscribed in a will to preserve the security of transactions by avoiding abusive challenges to sales contracts. [...]
[...] The interest of this distinction lies in legal considerations. The action in guarantee of latent defects is subject to a two-year statute of limitations, provided for by Article 1648 of the Civil Code, while the action in liability for non-delivery benefits from the five-year prescriptive period of common law By preventing the buyer from choosing between these two actions, the Court of Cassation avoids the buyer from circumventing the temporal constraints specific to the guarantee of latent defects. In the judgment of 6 October 2004, the judges of cassation clarified the role of the judge in the face of an action based on the guarantee of latent defects. [...]
[...] The obligation of delivery, enshrined in Article 1604 of the C. civ in the context of the sale, guarantees to the buyer that they will receive a good corresponding to the characteristics mentioned in the contract. Delivery is defined as 'the transport of the sold thing into the power and possession of the buyer' It follows that the delivered thing must correspond in all respects to what was agreed upon between the parties. In contrast, the guarantee of latent defects, governed by Article 1641 of the C. [...]
[...] However, jurisprudence has established certain criteria to identify such bad faith. In several decisions, the Court of Cassation has accepted that the recurrence of disorders or their extent could constitute evidence of the seller's knowledge of the defect. Thus, in a case where a seller had transferred a property with water infiltration that he had attempted to conceal before the sale, the Court ruled that this concealment characterized disloyal behavior justifying the unenforceability of the warranty exclusion clause Similarly, when work has been carried out by the seller to remedy a known problem before the sale, without informing the buyer, the case law generally considers that there is a fraudulent intention justifying the invocation of the warranty against hidden defects. [...]
[...] This analysis allowed it to dismiss the clause excluding the guarantee of latent defects inserted in the deed of sale. However, in ruling thus, it departed from the dominant jurisprudential line that considers that defects affecting the normal purpose of the good constitute latent defects and not non-conformities. The Court of Cassation therefore quashed the judgment, affirming that the lack of watertightness is a latent defect and falls under Article 1641 of the Civil Code, and not Article 1604. This distinction is taken up in several decisions that exclude the idea of a choice between the two regimes. [...]
