When you buy a good, whether it's a good, whether it's a car, a boat, an apartment, or even a coffee machine, you hope that it “works” as expected.

But what if, after the purchase, a serious defect appears? That's where the comes in legal guarantee against hidden defects, an old but still current mechanism that protects the buyer.

What is the warranty against hidden defects?

The guarantee against hidden defects is provided for by articles 1641 to 1649 of the Civil Code.
It requires the seller to answer for the hidden defects of the goods sold that:

  • make the property unfit for its intended use, or
  • reduce its use so much that the buyer would not have bought it, or at a lower price, if he had known about the defect.

This guarantee is mandatory and free. It applies to most goods, with the exception, for example, of those acquired at auctions or buildings to be built.

A professional seller, deemed to know perfectly the thing he is selling, cannot be contractually exempt from this guarantee (Cass. Com., November 23, 1999, No. 96-17.637).

What are the conditions for invoking the guarantee?

Three cumulative conditions must be met:

  1. A hidden defect : it should not be visible at the time of purchase.
  2. A defect prior to the sale : the problem must exist as soon as the contract is concluded.
  3. A serious defect : it must make the item unusable or greatly reduce its use.

If these conditions are not met, collateral action cannot prosper.

The Court of Cassation pays particular attention to this. Thus, it was able to refuse to be classified as a hidden defect in the case of a used vehicle that multiplied the number of breakdowns, electrical and braking defects since the lower courts had not shown that these disorders made the vehicle unfit for its use (Cass. Civ. 1re, November 19, 2002, no. 01-00.724).

Moreover, for the action to prosper, it is necessary to demonstrate

What is the timeframe for action?

The Civil Code sets out two rules of time:

  • 2 years from the discovery of the defect (art. 1648 of the Civil Code).
  • But also a 20-year deadline as of the sale (art. 2232 of the Civil Code).

The Court of Cassation considers that the period of 2 years is a statute of limitations, which can therefore be suspended; for example if a judicial expertise is in progress (Ch. Mixte, 21 July 2023, no. 21-15.809).

In short: you must act quickly once the defect is discovered, but you can never exceed 20 years after the purchase.

What recourses for the buyer?

The buyer has several options (art. 1644 of the Civil Code):

  • The prohibitive action : cancellation of the sale and return of the price.
  • The estimated action : keep the good but get a reduction in the price.
  • Obtaining damages : if the seller knew about the defect (art. 1645 of the Code).

These actions are left to the discretion of the buyer.

The Court of Cassation also confirmed that there is an irrefutable presumption of knowledge by the professional seller of the defect in the thing sold, which obliges him to repair all the damage that is the result of it in full (Cass. Com., July 5, 2023, no. 22-11.621).

Who must prove the hidden defect?

It is up to the purchaser, who intends to implement the guarantee against hidden defects, to demonstrate that the conditions have been met (CA de Paris, January 12, 2023, no. 20/06450).
It can produce:

  • quotes or invoices,
  • certificates from professionals,
  • or even better: a expertise report.

Without solid proof, the action is likely to fail.

In summary

The guarantee against hidden defects is a powerful tool for protecting the buyer, but its success depends on several points:

  • act on time,
  • prove the vice,
  • choose the right action (cancellation, price reduction, damages).

Do you need assistance with a dispute related to a hidden defect?

I assist managers, shareholders and entrepreneurs in the management of their commercial conflicts, especially in the area of hidden defects.

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