The Opposability of Restrictive Guarantee Clauses Between Professionals

Extract

[...] In addition, the applicant does not have the possibility of cumulating this action in guarantee of latent defects and the action for nullity for error. In fact, according to the case law of the Court of Cassation « When the thing is affected by a defect that makes it unsuitable for its use, the buyer does not have the action for nullity for error on substantial qualities, but only the action in guarantee of latent defects (Court of Cassation 1re civil October 2004) Finally, the applicant is not even able to cumulate the action for latent defects and the action for common law conformity. [...]

[...] The express acceptance of the non-warranty clause by the buyer" According to Article 1641 of the Civil Code, a hidden defect is a defect that makes the thing unfit for the use to which it is intended or that significantly reduces this use. The hidden defect is therefore defined by the Civil Code in terms, not of its nature, but of its consequences. In order to get rid of its legal obligations, Article Article 1643 of the Civil Code provides that « the seller is liable for hidden defects, even if he did not know them, unless he had stipulated that he would be under no guarantee. [...]

[...] Thus, an artist painter and a manufacturer of paint are not professionals of the same specialty (Court of Cassation, 1st Civ April 1985), or a shipbuilder and a shipowner (Court of Cassation, com January 1974). In this case, this condition of validity was easily fulfilled, the co-contractors being both professional garage owners. The commercial chamber of the Court of Cassation drawing all the consequences from the conditions of validity of the restrictive guarantee clause, the buyer cannot ask that it be set aside, this clause being opposable to him. II. [...]

[...] The strict assessment of the quality of professionals of the same specialty The Commercial Chamber of the Court of Cassation notes that the Court of Appeal was correct in finding that both the buyer and the seller were professional garagemen. This finding is not without effect. The professional quality of the buyer and the seller is an essential condition of validity of the restrictive warranty clause. In fact, by exception, the non-warranty clause is only valid when the co-contracting parties are professionals. [...]

[...] In this sense, by exception, the seller may contractually provide a non-guarantee clause. However, for it to be valid, this clause must meet several conditions. In this specific ruling, the Court of Cassation checks that the Court of Appeal has indeed found that the conditions for the validity of the non-guarantee clause were met. This is why the Court of Cassation's solution is thus composed, « More surprisingly, the Court of Appeal found that Mr. Z . and Mr. A . [...]