In view of articles 1641 and 1648 Code civil:

Given that the seller is liable under his guarantee if latent defects in the goods sold render it unsuitable for the use to which it was to be put, or which so reduce its suitability that the buyer would not have bought it, or would have paid less for it, had he known of them, and that the buyer must bring his action based on redhibitory vices within a short period, its length depending on the nature of the defects and the practice normal in the place of sale;

Given that according to the judgment under attack (Montpellier, 27 May 1993) a wall-coating called “Lutèce Projext” manufactured by the firm Platres Lambert was used by M. Rispail on the show-house he was building in 1978 as main contractor for the firm Basso Sud, and that when it proved defective Basso Sud claimed damages from the manufacturer for the business loss it suffered in consequence;

Given that the court below disallowed the manufacturer’s invocation of the short period within which claims must be brought under article 1648 on the ground that the defect here was not a vice caché, the damage being due to an external factor, the damp to which the product was extremely sensitive, and not to a defect inherent in the thing itself;

Given that in so holding, while accepting that the defendant supplied a product which was not suited for normal usage, the court of appeal failed to draw the proper conclusions from its own findings and so violated the texts cited above;

For these reasons QUASHES and ANNULS the decision of the Court of Appeal of Montpellier, but only in so far as it dismissed the defence of Platres Lambert and held it liable to Basso Sud, and remands the matter to the Court of Appeal of Nîmes.

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

Civ 3, 28 June 1995: This judgment also comes within the direct line of the solution put forward by the judgment of the 16 June 1993 mentioned above: "breach of contract" ("lack of conformity with specifications agreed by the parties") corresponds to a lack of identity between the thing delivered and the thing sold. There is then non-performance of the obligation of delivery, sanctioned by contractual liability under the droit commun. On the other hand, a defect in operation affecting the usefulness or the economic value of the thing comes under the guarantee against latent defects (vices cach¿s). This, in the present case, is the reason for quashing the appeal judgment, which whilst finding that the manufacturer had supplied a product not in conformity with its normal utilisation, nevertheless accepts that the default does not constitute a latent defect.

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