Updates on latent defects

French Supreme Court, 21 July 2023

The Court of Cassation has ruled on the nature of the sliding 2-year action period from the discovery of the latent defect and has given important clarifications on the single time limit that must be accumulated in civil and commercial sales.

On 21 July 2023, the French Supreme Court (Cour de cassation) set out a groundbreaking ruling through four different cases (cases no. 20-10.763, 21-15.809, 21-17.789, 21-19.936). The court sought to strike a balance between protecting the rights of consumers, who must not lose their right to take legal action when they belatedly discover a latent defect in a sale, and the imperatives of economic life, which implies that a seller's or manufacturer's warranty cannot be sought after indefinitely.

In these cases, the Supreme Court had to establish a timeframe to bring a claim based on the warranty for latent defects (action en garantie de vices cachés), and the relationship between the different timeframes which had been established before the ruling.

The supreme judges issued a unanimous opinion, which sparked a particular interest. The opinion clarified that the timeframe set out in article 1648 § 1 of the French Civil Code is a prescription period (délai de prescription) which can be interrupted or suspended (in particular when a judicial expertise has been ordered). Additionally, they considered that only one limitation period (délai butoir) for civil and commercial claims had to be applied, set out in article 2232 of the French Civil Code, which lasts for twenty years starting on the date of the commercial or the civil sale. This limitation period applies for warranty claims brought by a buyer or a contractor against a supplier and/or a manufacturer. The court therefore explained that the claim must be filed within 2 years from discovery of the latent defects and cannot be brought twenty years beyond the date of the initial sale.

These rulings were included in our latest real estate and construction legal watch (in French). If you would like to receive this legal watch, click on this link.