(III) a hidden defect?

While a buyer must show that the defect existed at the time of delivery for liability under the garantie légale and for contractual non-conformity¹⁴⁰ they appear to differ as to whether the defect must be hidden at this time.

Under the garantie légale, a buyer must show that the defect was ‘not apparent’ to him on sale,¹⁴¹ the juges du fond having a ‘sovereign power of assessment’ as to whether this is achieved.¹⁴² Clearly, a buyer will fail if he is shown to have known of the defect on sale and so a seller may avoid liability by informing the buyer of any defect both ‘in its cause and its extent’.¹⁴³ But French courts do not allow a seller to escape liability by making general statements apparently informing the buyer of the defectiveness of the property, which they have treated as exemption clauses.¹⁴⁴ Where a buyer ignores a (p.77) defect which has been drawn to his attention, the ‘apparent nature’ of the defect will often coincide with a lack of care in the buyer, with the difference that the defence of faute de la victime allows a court to reduce a claimant’s damages to the extent which it considers appropriate, whereas a finding that the defect was not hidden excludes liability altogether.

However, a defect may also be found to have been apparent where the buyer ought to have known of the defect at the relevant time.¹⁴⁵ Here, the juges du fond take into account the relative status and technical knowledge of the parties as well as the nature and the extent of the investigations necessary to reveal the defect.¹⁴⁶ So, where the buyer is not technically expert, the courts take a fairly generous view of what is required of him, though a defect will be held ‘apparent’ if a little attention would have revealed it to a person of average prudence.¹⁴⁷ Where a buyer possesses skill or knowledge in relation to the property, then it is more likely that a court will hold that its defect is apparent to him,¹⁴⁸ though it will not rule it out. So, for example, where a buyer ran a dry-cleaning business and bought a chemical product for use in her machines, her claim for damages based on its abnormal composition was accepted as the court found that this defect could have been discovered only by a laboratory analysis.¹⁴⁹ In these cases, there is a clearer link between the hidden nature of the defect and the buyer’s contributory fault, and giving the flexibility of result which a finding of faute de la victime allows, the courts have sometimes preferred to hold a defect ‘hidden’ but then reduce the buyer’s damages. For example, where a buyer bought a second-hand tractor sold ‘as seen’ without taking the precaution of having it checked by an engineer and ten days later the tractor went out of control and caused him serious injuries, the court held the seller liable but reduced the buyer’s damages on the ground of faute de la victime.¹⁵⁰ This approach has also been taken where the seller actually knew of the defect at the time of sale but did not reveal it.¹⁵¹

At first sight, though, the garantie légale’s restriction to hidden defects marks a difference with liability for défauts de conformité which is not so restricted. However, this difference lessens on examination, for if goods suffer from a défaut de conformité which is apparent on delivery but the buyer nevertheless accepts them without qualification, the buyer’s claim to résolution is lost on the ground of the goods’ acceptance.¹⁵² As regards complex products (such as computers) a buyer’s assessment of whether they conform to their specifications may take a period of time and is therefore held not apparent on delivery, a défaut de conformité which is ‘easily discoverable’ by a buyer on delivery will be held apparent.¹⁵³ In this way, the sorts of considerations which the courts take into account as part of the ‘hidden’ nature of the vices under the garantie légale can also be taken into account by them for the purposes of their lack of the property’s contractual conformity.