Country:
France
Court:
Cour de cassation, 1re civ., 27 January 1993, pourvoi n° 90-19.777; Bull. civ. I, nº 44, p. 29
Topics:
Contractual liability
Liability of a professional seller
Reasonable time
Articles:
Art. 3 s. 3, 10 & 13, Directive 85/374
Facts:
The claimant, Mr. Charles Albesby, was injured when his hunting rifle exploded during use. An expert witness concluded that the explosion was due to a defective cartridge, which had been given to him by his brother. His brother had purchased the cartridges from Mr. Debregeas, a professional seller, who had purchased them from Nobel Co, the producer and supply company. Mr. Albesby and his insurer brought an action against Nobel and Mr. Debregeas alleging that the professional seller Mr. Debregeas was responsible in his quality of producer, seller and gardien of the cartridge.
Legal question:
Was the Court of Appeal right in rejecting the claim against Mr. Debregas, the professional seller, on the basis that his claim was brought under a latent defect warranty provision, thus requiring the action to be brought within a short time period?
Decision:
No. The claimants action was not based on the latent defect warranty but on contractual liability (obligation de sécurité). Thus it did not need to be brought within the short limitation period of article 1684 CC. Under this contractual liability the professional seller was under an obligation to deliver products that are exempt of any defect creating danger for individuals or property.
Comments:
Despite the French judicial liberalism, and the extension by the courts of the 'latent defect warranty' to all buyers and sub-buyers in the distribution there are several weakness in basing an action on this basis. The primary problem has been the short limitation period. Indeed Article 1648 CC provides that these actions 'must be brought by the buyer within a short time, depending on the nature of the material defects and the custom of the place where the sale was made.'
The Cour de Cassation has however avoided this limitation problem by developing the notion that 'professional sellers' undertake a contractual obligation to deliver a safe product over and above the 'latent defect warranty'. This is known as the obligation de sécurité.
