(C) Actions for damages

In the modern law all sellers who are aware of defects in the property sold²²⁷ and ‘business sellers’ (vendeurs professionnels) who are presumed to be so aware, are liable in damages under the garantie légale for the loss caused to their buyers by latent defects in the property.²²⁸ In principle this liability arises whether the buyer is a consumer or in (p.85) business,²²⁹ although where a business buyer is in the same ‘speciality’ as a business seller, he may lose his right to damages on the ground that he should have discovered the defect.²³⁰ By contrast in principle liability for ‘non-conforming property’ is imposed on all types of sellers and for the benefit of all types of buyers, as it arises from non-performance of the express or implied stipulations of the contract as to the nature and quality of the goods,²³¹ though in practice French courts have not extended ‘contractual non-conformity’ so as to impose liability on non-business sellers.²³²

I have so far translated vendeurs professionnels as ‘business sellers’, but this key expression needs further explanation, particularly given that it is also used in determining the effectiveness of contract terms attempting to exclude liability under the garantie légale.²³³ While the lower courts are given considerable leeway in applying this expression, the Cour de cassation requires them to justify their decisions²³⁴ and will intervene if it considers they have got it wrong.²³⁵ ‘Vendeur professionne’ was first used to describe those sellers who should be treated as though they knew of a defect because they ought to have known of it,²³⁶ and in the case of goods, therefore, typically a vendeur professionnels someone whose business is selling goods of the same general type as the ones sold,²³⁷ so that manufacturers, distributors and retailers are all included.²³⁸ On the other hand, it is not enough for a seller to be in business and entering the contract for the purposes of the business: so, for example, a road haulier who sold a towing vehicle to the claimant, who was also in the transport business, was held by the Cour de cassation not to be a vendeur professionnel apparently on the basis that, while he had used the vehicle in the course of his business, he was not in the business of selling vehicles.²³⁹

How do French courts assess the damages to be awarded in respect of defects in the property? Here, we find the normal, rather opaque statements generally adopted by French lawyers as regards damages, stating a principle of ‘full compensation’ (réparation intégrale) but then placing the question of the quantification of the buyer’s harm within the ‘sovereign power of assessment’ of the juges du fond.²⁴⁰ It is clear, though, that under the garantie légale or the general law, a buyer may recover damages in respect of personal injury,²⁴¹ damage to other property²⁴² and what a common lawyer (p.86) would term pure economic loss, including any difference in the property’s value as it should have been and in its defective state²⁴³ or the cost of repairs and consequential losses.²⁴⁴ A buyer may also recover an indemnity in respect of any liabilities incurred to a third party, whether under a further contract of sale or as gardien of the goods.²⁴⁵ Moreover, while under the garantie légale a buyer must choose between restitution of the price or its reduction, he may combine either claim with one for damages, although not in a way which grants both damages for loss of its value and a reduction in its price.²⁴⁶ On the other hand, in French law in general a buyer may not himself terminate the contract of sale on the ground of the defectiveness of the goods, buy substitute goods elsewhere and then claim their cost by way of damages as this substitution of performance requires judicial authorisation.²⁴⁷