In view of articles 1604 and 1184 Code civil, in conjunction with articles 1641 and 1644;

Given that when an item sold and delivered is affected by defects making it unsuitable for its intended purpose the seller’s liability is for breach of his guarantee of freedom from latent defects (vices cachés) and not for breach of his common law obligation to deliver the thing contracted for;

Given that after buying a new Rover car from the Garage Blandan which had itself bought it from the Lemoigne company, M. Point sought rescission of the sale on the ground that the paintwork was defective and the boot rusty;

Given that the court below granted rescission on the basis that in supplying M. Point with a vehicle already affected with defects unascertainable by him on delivery the Garage Blandan was in breach of its obligation to deliver;

Given that in so deciding simply because the vehicle was affected by defects rendering it less suitable for use without any finding that it was not the thing contracted for, the court below gave no statutory basis for its decision.

For these reasons … QUASHES and ANNULS the whole decision rendered on 5 July 1993 by the Court of Appeal of Nancy, and remands the matter to the Court of Appeal of Rheims.

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

Civ 1, 4 July 1995 :Although the case law has, before the 1990s, shown a certain tendency to make no distinction between the two concepts [obligation of delivery and guarantee against latent defects], thus permitting the buyer to escape the prescription period relating to the guarantee action, the distinction seems more marked since. Failure to fulfil the obligation of delivery can be defined from now on as the delivery of a product not corresponding with the characteristics agreed by the parties to the contract (Civ 1, 16 June 1993, Bull no 224 - inaccuracy of kilometre reading appearing on the odometer of a vehicle - 5 November 1996, Bull no 385 - vehicle constructed from the wreck of a car which had been in an accident with a body of which the serial number of origin was invented, not corresponding in any way to the specifications agreed between the parties or 29 January 2002, pourvoi no 99-21.728, Bull no 35: "the seller who supplied a vehicle not in accordance with the directions of technical control defaults in his obligation of delivery and not in the guarantee as to latent defects (vices caches)"). The present judgment falls within this case law, censuring the judgment which sanctions a seller for having failed in his obligation of delivery, when it established not that the thing sold did not conform to its normal purpose, but simply that it had defects, invisible at the time of the sale, likely to limit its use and which come under the action in respect of the guarantee against latent defects (Civ 1, 27 October 1993, Bull no 305 etc). The lack of identity between the thing delivered and the thing sold, revealing non-performance of the obligation of delivery, comes within contractual liability under the droit commun, while a defect in operation affecting the usefulness or the economic value of the thing comes under the action in respect of the guarantee against latent defects, and this includes cases where this defect in operation alters the possible use of the item bought very appreciably (unsuitability of a piece of land for building: Civ 3, 1 October 1997, Bull no 181).

Translation by Raymond Youngs

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