3. Liability under the Garantie Légale and its Rivals

The oldest and still central basis for a seller’s liability for failures in quality or utility of the property sold remains the liability for latent defects imposed by articles 1641 to 1649 of the Civil Code, the so-called garantie légale. This liability has always been distinctive in a number of ways. From its origins in Roman law, it was imposed by special legislative provision, distinct from more general sanctions for contractual failures in performance and special to the law of sale⁶⁴ and possessing its own set of remedies with their own limitation periods, reflected in the Civil Code for two centuries in article 1648’s bref délai (short delay).⁶⁵ However, the special nature of these features (p.70) should not give the impression of narrowness, for once again, there was a process of generalisation from the ancient concepts, a gradual whittling away of ancient restrictions. In the result, the garantie légale applies to sales of all types of property: all movable property (including goods, incorporeal movables such as contractual rights or intellectual property,⁶⁶) except res extra commercium,⁶⁷ and all immovable property⁶⁸ to second-hand goods as much as to new ones,⁶⁹ and to property incorporated into other property⁷⁰ It also concerns a wide range of types of ‘defects’ (including defects of functioning and not merely physical imperfection) and usually attracts liability in damages and not merely termination of the contract and restitution or a reduction in the price.⁷¹

However, as I noted earlier, this picture has been complicated in modern French law by the development and expansion of two other analyses. The first reflects old problems of the relationship between the special liability of sellers for latent defects and their more general liability for contractual failures in performance.⁷² Under the Civil Code, a seller is bound to deliver ‘the property sold’⁷³ and this implies that the property conforms to the terms agreed by the parties as to what was sold, so that the obligation to deliver includes an obligation of contractual conformity (obligation de conformité). Breach of these contractual obligations (non-conformité or un défaut de conformité) gives rise to liability under the general contractual regime provided by the Code, both as to damages⁷⁴ and termination of the contract⁷⁵ and any action is subject to the general rules of prescription of 10 or 30 years, rather than the bref délai of the garantie légale.⁷⁶

Now, the traditional French way of drawing the line between these two grounds of seller’s liability was to say that contractual non-conformity dealt with cases where the buyer had not received the thing which he had agreed to buy, whereas liability for latent defects dealt with cases where the buyer had received the thing, but where it possessed defects of a type which would have prevented him from buying it.⁷⁷ However, this distinction was not destined to remain neat. For while liability for delivering non-conforming property can arise from breach of stipulations as to the time of delivery, the quantity of goods,⁷⁸ or the type of goods where bought generically,⁷⁹ it can also arise from stipulations governing other aspects of the property, including (p.71) those concerning its quality or fitness for purpose⁸⁰ which are the traditional concern of the garantie légale. This is therefore where the distinction between the two grounds of liability begins to break down, for in French law a contractual agreement as to the property sold need not be express, issues of the content of agreement and interpretation being in principle a matter for the ‘sovereign power of assessment’ of the juges du fond.⁸¹ Moreover, where a seller has an obligation to deliver property of a defined type, it is generally required to be of ‘average quality’ or, as it is traditionally put, ‘marchande et loyale’,⁸² its significance again being a matter for the ‘assessment’ of juges du fond.⁸³ Where property sold is not up to quality in this way its buyer may claim damages,⁸⁴ even if this failure has no impact on the property’s fitness for its purpose. So, for example, the Cour de cassation has declared that an ‘order for a new item is to be understood normally as one for something without any defect [sans défaut]’.⁸⁵

Since the middle of the last century some French jurists have gone further and argued that the ‘contractual conformity’ of property sold should include elements of the fitness for the purpose for which it was sold.⁸⁶ At the same time as this was being realised, writers and the courts also began to accept that the notion of ‘defect’ for the purposes of the garantie légale might be understood ‘functionally so that a defect exists if the property sold is found unfit for the purpose for which the buyer intended it’ rather than in more physical terms.⁸⁷ With this double expansion, many cases could be analysed either in terms of the garantie légale or contractual non-conformity,⁸⁸ and for claimants the latter had the advantage of avoiding the bref délai.⁸⁹

For a number of years, French courts seemed quite happy to build a second law of liability for latent defects on the framework of ‘contractual non-conformity’⁹⁰ and even considered it for the court to raise of its own initiative the possibility of this basis of liability instead of the garantie légale.⁹¹ The courts appeared to choose one or other analysis as a function of the prescription period which they thought (p.72) appropriate⁹² in particular given the seriousness of the defect.⁹³ In practice, therefore, the courts took not merely a ‘functionalist’ view of the concept of defect, but also a functionalist approach to its application. However, in the mid-1990s French courts instead started to draw a firm line between the two analyses of defects in sale, holding that hidden defects which render property unfit for its normal purpose may be the subject only of the garantie légate,⁹⁴ leaving liability for contractual non-conformity to cases where property supplied does not conform to ‘agreed specifications’,⁹⁵ whether express or implied.⁹⁶ Whether or not this line holds for very long is a matter of doubt: its juristic basis has remained controversial,⁹⁷ as can be seen in its significant role in the dispute as to French implementation of the Consumer Guarantees Directive.⁹⁸

However, the picture became further complicated by judicial recourse to the obligations de sécurité in the context of the seller’s liability to buyer. Obligations de sécu-rité belong to the ‘general law of contract’, having been attached ‘forcibly’ to contracts since the beginning of the twentieth century,⁹⁹ but their use in the context of sale seems to have been caused by a combination of judicial discomfort with using ‘contractual non-conformity’ to avoid the bref délai of the garantie légale and judicial embarrassment at France’s continued failure to implement the Product Liability Directive.¹⁰⁰ As a result, French courts themselves ‘implemented’ the core concerns of the Directive under the aegis of a native French technique, though they adapted it considerably for its new context, subjecting the obligation de sécurité to a requirement of defect and extending its protection for the benefit of those not party to the contract of sale.¹⁰¹ As I shall later explain, the status of this jurisprudence after French legislative implementation remains controversial.¹⁰²

In the following discussion, I shall not delve further into the controversies as to the proper line between liability for latent defects and for ‘defects of conformity’, nor the legitimacy of the judicial extension in this sphere of obligations de sécurité, but instead will look in more detail at the ambit of the garantie légale, with sideways glances as to the differences which these other bases of liability offer.