Droit Privé: The Law of Sale simon whittaker

DOI:10.1093/acprof:oso/9780198256137.003.0004

Abstract and Keywords

Even before implementation of the Consumer Guarantees Directive, French law possessed six distinct conceptual bases for finding a seller liable to his buyer in respect of failures of safety, quality, or usefulness in the property sold, four of which are contractual, one delictual, and one either contractual or delictual depending on its context. Each of the conceptual bases has a different or somewhat different focus: the quality of the consent of the buyer; the wrongful conduct of the seller; the defectiveness of the property or its implications for safety. Each of them possesses its own conditions of application and effects which make them sometimes more, sometimes less attractive to a buyer, but over the last 40 years or so French courts have been torn between allowing their development and relationship to become a function of these practical features (with particular emphasis on differences in the periods within which claims must be brought) and following juristic views of the conceptual correctness of one or other position. This is why much of the jurisprudence in this area has long looked unsettled, if not actually contradictory: judges apply the law, which yields the outcome that they consider ‘right’ for reasons which do not appear on the face of the legal reasoning which they use. While the position became somewhat more settled after 1993 when the Cour de cassation ruled that latent defects which render property unfit for its normal purpose give rise only to liability under the garantie légale, it became controversial again in the French debates on how properly to implement the Consumer Guarantees Directive. This chapter looks first at the obligations d’information and then at the garantie légale and its rivals.

Keywords:   French law, Consumer Guarantees, product liability, obligations d’information, garantie légale, sellers, buyer, delictual, liability law

1. Introduction

Even before implementation of the Consumer Guarantees Directive, French law possessed six distinct conceptual bases for finding a seller liable to his buyer in respect of failures of safety, quality or usefulness in the property sold, four of which are contractual, one delictual and one either contractual or delictual depending on its context. This complexity is in part a legacy of history and in part a function of modern French juristic conceptual speculation and judicial pragmatic instrumentalism. The confusion which it has caused is made worse by the fact that neither the jurists nor the courts have proved sure for very long whether these various bases possess their own discrete domains or whether they can apply at the option of the claimant. While there were two attempts to reform this situation, one at the time of implementation of the Product Liability Directive and one at the time of implementation of the Consumer Guarantees Directive, neither has succeeded.¹

So, a buyer may wish to rely on the general doctrines of erreur (mistake) and dol (dishonest dealing) and of obligations to supply information or to advise (obligations d’information) to avoid the contract and return the property or as the basis of a claim for damages. While none of these expressly rely on the defectiveness of the property or loss caused by the property as their legal basis, they have proved significant in this context, especially in the case of obligations d’information. A buyer may also wish to rely on the classic liability for latent defects under the garantie légale or for ‘non-conforming property’, both of which are tied to the contract of sale and are based on ‘defects’ in the property, though this is understood differently.² To these the courts added in the 1990s obligations de sécurité, thereby using a French contractual technique to ‘implement’ the Product Liability Directive while the French legislator failed to do so.³

Each of the conceptual bases has a different or somewhat different focus: the quality of the consent of the buyer; the wrongful conduct of the seller; the defectiveness of the property or its implications for safety. Each of them possesses its own conditions of application and effects which make them sometimes more, sometimes less attractive to a buyer, but over the last 40 years or so French courts have been torn between allowing their development and relationship to become a function of these practical (p.64) features (with particular emphasis on differences in the periods within which claims must be brought) and following juristic views of the conceptual correctness of one or other position. This is why much of the jurisprudence in this area has long looked unsettled if not actually contradictory: judges apply the law which yields the outcome which they consider ‘right’ for reasons which do not appear on the face of the legal reasoning which they use.⁴ While the position became somewhat more settled after 1993 when the Cour de cassation ruled latent defects which render property unfit for its normal purpose give rise only to liability under the garantie légale,⁵ their relationship became controversial again in the French debates on how properly to implement the Consumer Guarantees Directive.⁶ In this discussion, I shall look first at obligations d’information and then at the garantie légale and its rivals.