(A) Does the buyer have a right to the replacement or repair of the goods?

It may seem odd to a common lawyer that I start my discussion with the question whether a buyer possesses a right to the repair or replacement of the defective property, but from a French perspective, this question reflects general possibility of ‘specific enforcement’ or ‘enforcement in kind’ of the seller’s obligations (exécution en nature), itself related to the binding force of contractual obligations.¹⁷⁰

In principle, therefore, where a seller has not performed his obligation to deliver conforming property, the buyer may demand that he does so, and for French law this holds good whether the seller has failed to perform altogether or has performed (p.80) defectively by delivering property which does not ‘conform’.¹⁷¹ In the latter case, this ‘right to performance’ consists of a right to the replacement of the goods and, possibly, to their repair. Here, though, we have to be particularly careful, for this suggests a right in the buyer to have the property repaired or replaced by the seller, whereas in some French discussions what is intended is that a buyer should have the right to recoup from the seller the cost of replacement or repair by a third party.¹⁷² This ambiguity reflects a wider difference in approach between French and English law: to a common lawyer, claims by a buyer for the cost of repairs or replacement are seen as particular examples of claims for damages; but to a French lawyer, they can be seen as examples of the ‘enforcement in kind’ of the seller’s contractual obligation as the buyer receives the ‘performance’ owed by the seller, even if not from the seller.¹⁷³

The mechanism by which the property is to be repaired or replaced by another person is found in article 1144 of the Civil Code, which provides that a creditor of a contractual obligation may ask the court to authorise him to engage a third party to undertake performance of the debtor’s obligation at the latter’s expense: under this provision, a buyer may ask for such an authorisation for the replacement of defective goods.¹⁷⁴ However, this apparently facilitative provision also reflects a concern that in general a creditor may not obtain a substitute performance elsewhere without prior judicial authorisation and so should not (as in English law) simply obtain a substitute performance and claim damages for its cost.¹⁷⁵ In this way, French law protects both the creditor’s right to performance and the debtor’s right to perform.¹⁷⁶ There are two important exceptions, though, to this requirement of judicial intervention. The first exception applies to any case (civil or commercial) where the courts consider that the debtor’s performance needs to be ‘replaced’ as a matter of urgency.¹⁷⁷ The second is found in commercial sales, where a unilateral right of replacement, known as rachat, exists in relation to generic goods, as long as the buyer has given the seller notice and a period of time to perform.¹⁷⁸ In this case, where the buyer has to spend more than the original price of the goods on their replacement, the difference is recoverable from the seller.¹⁷⁹ By contrast, a buyer cannot require a seller to replace property suffering from a latent defect within the meaning of the garantie légale which he discovers after the property’s acceptance, for the obligation de garantie gives rise only to the system of actions which the Code itself prescribes.

In looking at the availability in a buyer of a right to repair defective property, we need again to distinguish according to whom it is intended should effect the repair. The difficulty with imposing an obligation on a seller to repair defective property is (p.81) that the seller never agreed to do so: a seller’s obligation is to deliver conforming property or to guarantee it against latent defects, not to repair it if it is delivered in breach of either of these obligations.¹⁸⁰ Despite this, it has been said that a buyer has a legal right to have defective goods repaired by the seller, though some of the cases used to support this are concerned with the recovery of the cost of repairs by way of damages.¹⁸¹ Overall, the position has not been clear, though this will apparently change on implementation of the European Consumer Guarantees Directive, though only as regards consumer buyers.¹⁸²