(II) The seriousness of the defect

Article 1641 of the Civil Code provides that a seller is liable only for latent defects in the property which ‘render it unfit for the use for which it is intended, or which so diminish this use that, had he known of them, the buyer would not have acquired it, or would have acquired it only at a lesser price’. Traditionally, this article contains two elements, that there be a defect and that it renders the property unfit for its purpose or diminishes its fitness to the extent that the buyer would not have entered the contract, at least at the price paid,¹²⁴ but the modern, ‘functional’ interpretation of defect reads its requirements conjunctively, the property’s defectiveness being defined by reference to its lack of fitness for purpose.¹²⁵

Both the existence and seriousness of a property’s ‘defect’ are within the ‘sovereign power of assessment’ of the juges du fond and this means that we can gain only a rather general impression of its understanding or application.¹²⁶ Nevertheless, for liability under the garantie légale the defect must have some effect on the property’s use. A recurring example in la doctrine concerns the sale to a dealer of a second-hand Renault car which suffered from vibrations in its gearbox and wind noise: these minor defects were held to reduce the car’s attractiveness but not to affect its utility to the dealer and so not to attract the garantie légale.¹²⁷ On the other hand, the court may have taken a different view if the pleasure drawn from the property is central to the reason for its purchase, as in the case of sale of perfume, a Hi-fi set or ‘luxury products’ to an individual.¹²⁸ French courts have sometimes referred to the ease of repair of property or the temporary nature of a defect in holding that a defect is not sufficiently serious to give rise to the garantie légale,¹²⁹ but some commentators have argued that these features do not necessarily have this effect.¹³⁰

While the terms of article 1641 themselves suggest that an objective approach should be taken to the issue of the buyer’s purpose for which the property is not fit,¹³¹ so that the garantie légale applies to cases where the property is unfit for the normal purpose to which property of the type in question is put,¹³² most jurists say that a buyer can rely on his particular purpose for the property where this is known to the seller:¹³³ here, it becomes part of their agreement, and if it is unfit for this purpose the (p.76) seller may be liable.¹³⁴ Given this explanation, some jurists suggest that the proper legal basis of liability here is non-performance of a contractual undertaking, attracting liability under the general law rather than under the garantie légale,¹³⁵ but the cases do not all bear this out.¹³⁶

Where the seller was not aware of a buyers special purpose, a distinction appears to have been drawn between dangerous and non-dangerous defects. So, where a buyer used a product for a purpose dangerous to persons or property then, as long as this use is not too far-fetched, the courts held that a seller’s failure to warn either attracts liability under the garantie légale or for breach of an obligation d’information. Since the mid-1990s, though, liability here became subsumed under the judicial ‘implementation’ of the Product Liability Directive.¹³⁷ On the other hand, French courts have been much less likely to impose liability where property simply fails to achieve an unusual, unspecified but foreseeable purpose. So, for example, where a vehicle was bought as a ‘collectors’ car’, its buyer cannot complain when it is not fit for normal use on the roads.¹³⁸ And, as I have explained, a seller is not generally under an obligation to inform the buyer as to a product’s effectiveness for unforeseeable and unspecified uses.¹³⁹