Case:
Bull. Civ. 1975 III No. 372 p.282 (74-12.667) Case Comptoir Tuilier du Nord v. Société Nau FrèresSA
Date:
10 December 1975
Note:
Translated French Cases and Materials under the direction of Professor B. Markesinis and M. le Conseiller Dominique Hascher
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Given that it emerges from the findings of the decision under attack (Rheims, 12.3.1974), rendered on remand after the previous decision had been quashed, that prior to his death Charles had the Société Nau build a villa for him, the roof tiles being supplied to Nau by the Comptoir Tuilier du Nord, and that when problems arose in the roof Charles brought suit against Nau [on the basis of the presumption of the contractual liability of the builder for defects which arise within ten years of construction] and a separate suit in tort against the Comptoir Tuilier du Nord, from whom, as its supplier, Nau sought an indemnity; and given that the judgment below states that on 24 October 1972 Nau reached an agreement with Charles’s heir and widow, whereby it was to put the roof in repair and Mme Charles subrogated the company to all her rights against the Comptoir Tuilier du Nord;

Given that the Court of Appeal is criticised for holding that Nau was entitled to an indemnity for the total cost of repairing the roof in two capacities, both as purchaser suing in contract on the basis of vice caché and as subrogee of the rights of Mme Charles whereas, according to the complaint, “first, since a single judgment in damages based on one set of facts cannot be based both on contractual liability and a purely delictal fault, the judgment below failed to specify the basis of its decision and ignored a limitation clause validly stipulated by the Comptoir Tuilier du Nord in its invoice dated 21 October 1958 for the delivery of the tiles which the expert found to have been defective, while combining the presumption that the professional seller of property is aware of latent defects with a finding of tortious negligence, the latter being used as a ground of liability more than ten years after the tiles were built in to the building, though no fault was particularised apart from an inadequate assertion that the tiles were of poor quality; and secondly, even if the “contract” of 24 October 1972 were valid as against the Comptoir Tuilier du Nord (which could not exercise its right to avoid the assignment since no price was paid for it), such a contractual subrogation to a right being litigated and therefore outside the scope of article 2051 Code civil could not in any way modify the nature of the right transferred, namely a claim in tort which could not concur with a contractual claim for an indemnity based on the purchase of the tiles;

But given that the court of appeal was within its sovereign powers when, having correctly disapplied the defence based on the time-bar of article 189 bis of the Commercial Code on the ground that the defendant was not entitled to invoke it, it held that the defect in the tiles was a vice caché and that the purchaser’s action had been brought within the short period allowed by article 1648 Code civil; and given that the court below was entitled to hold that the Comptoir Tuilier du Nord, being both the manufacturer and seller of the tiles, could not properly invoke the limitation clause in its contract;

Given that in holding the Comptoir Tuilier du Nord liable to make good the harm caused to its contractor the court below correctly applied the rules of contractual liability, and that it was mere surplusage for the court to hold that Nau could exercise the claim in tort to which it had been subrogated;

From which it follows that the application for review must be dismissed;

For these reasons DISMISSES the criticisms made against the judgment of the Court of Appeal of Rheims on 12 March 1974.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 3, 10 December 1975: this solution, according to which a professional seller cannot invoke a clause limiting a guarantee, is constant in case law, at least in contracts concluded between professionals and private persons (it is different within the framework of an agreement between professionals: Com, 23 November 1999, Bull no 210). As he is deemed to know the defects in the thing which he is selling (including when he has the thing delivered directly by the supplier to his customer: Civ 1, 8 June 1999, Bull no 198), the professional seller cannot invoke a clause limiting or excluding his guarantee (Civ 1, 24 November 1954, Com 24 October 1961...), it having been made clear that the European Court of Justice, by a judgment of the 24 January 1991, considered that application of this rule caused no obstacle to the free movement of goods and the right to competition.

Translation by Mr Raymond Youngs