D.1986.293
Case Société MPI v. Union des Assurances de Paris etautres

Given that in 1969, according to the findings of the court below (Paris, 19th Chamber, 14 June 1984) that the SCI Résidence Brigitte, insured by UAP (the Union des Assurances de Paris), retained Marty and Ginsberg (now represented by M. and Mme Ginsberg) as architects, assisted by the specialists OTH and BEPET, for the construction of a building complex; that the Petit Company, as main contractor, subcontracted to the Samy Company the digging of the trenches for the pipework to be produced by the Laurent Bouillet Company, that Samy applied to the pipework a product called Protexculate, a product designed to procure thermal insulation, which it purchased from its manufacturer MPI (société commerciale de matériaux pour la protection et l’isolation); that water escaped which the experts appointed in 1977 traced to corrosion in the pipework due to the Protexculate, aggravated by inadequate banking of the trenches; that the insurer, having paid the owners and been subrogated to their rights on 30 October 1980, claimed an indemnity from MPI, Petit, Samy and Laurent Bouillet,and MM. Marty and Ginsberg as well as their specialist advisers;

Given that MPI complains that the judgment against them with interest from 30 October 1980 was based on delict whereas, it maintains, the only recourse ofthe developer against the producer of the materials used by his main contractoris a direct action for vice caché inherent in the product as manufacturedand that this claim, necessarily contractual in nature, must be brought withina short period (bref délai) after the discovery of the defect; that accordinglyin granting the claim brought on 28 January 1980 by the insurer subrogated tothe rights of the developer on 30 October 1980, the defect having been discoveredby the court-appointed experts on 4 February 1977, the court of appeal, by refusingto inquire whether the claim had been brought promptly enough, misapplied article1382 and failed to apply article 1648 Code civil;

But given that the developer, just like the sub-purchaser, is entitled to all the rights and actions vested in his contractor or seller in relation to the thing, and thus has a direct contractual action against the producer for nonconformity of the thing delivered; that in finding that the Protexculate which MPI had made and sold was not fit for the purpose for which it was designed and that the damage suffered by the Résidence Brigitte as developer was due to this breach of contract, the court of appeal was right to hold that the insurer, substituted for the developer, could bring a direct claim for damages within the residual period of prescription laid down by the general law.

For these reasons DISMISSES the application for review.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2005.

Assemblee pleniere, 7 February 1986: Although this solution has been repeated by a judgment of the 7 June 1995 (Civ 1, Bull no 249), reaffirming the contractual nature of the direct action of the site owner against a manufacturer, it seems to have been abandoned in its more general interpretation, following a judgment of the Assemblee pleniere of the 12 July 1991 (op cit) which, relying on article 1165 of the Code civil, states that the liability of the sub-contractor towards the site owner can only be delictual (cf Civ 3, 3 April 2002, pourvoi no 00-20.748). Finally, it may be considered, following in this respect a school of legal writers, that the distinction between the two types of liability is established as follows: the civil liability action is contractual in its nature in chains of contracts transferring property, whereas it is delictual in its nature between "non-immediate" contracting parties, and concerning other types of contracts.

Translation by Raymond Youngs

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