Page 422 - Latent Defect or Excessive Price?Exploring Early Modern Legal Approach to Remedying Defects in Goods Exchanged for Money - Bruijn

CHAPTER EIGHT
A result of this revision was that the differences in limitation between remedies for eviction, non-performance, and defects in the thing sold were significantly reduced. Be there a third-party claim, non- or malperformance the buyer is in all cases denied a remedy, if five years have lapsed since the moment the facts which gave ground to a remedy have become known to him. In the event of a defect in an object, a buyer has two years counted from the discovery of the defect. Before 2008, the remedies for non- performance and eviction lingered on for another 25 years, whereas the remedies for defects expired after two. Hence, in terms of legal certainty the adopted changes of the Avant-projet may seem an improvement.
However, this only partly holds true. First, the French lawgiver chose to leave the two-year limitation of the remedies for latent defect in article 1648 Cc unaltered. Consequently, the problems of concurrence with the longer-lasting remedies for non- performance, error and delict, comparable to those observed in the sections on the reforms of the Dutch and German civil codes will most likely remain. Can a buyer bring still bring remedies for non-performance, error or delict after the remedies for defects have expired? Indeed, it seems that the Cour de Casssation keeps answering the same kind of questions as those that had been posed before the reform and which the reform was supposed to solve.88
Secondly, the French Consumer Code, which was created as the implementation of Directive 1999/44/EC, seems not to have been taken into account in the reform of the Code civil based on the Avant-projet. Since the entering into force of the Consumer Code in 2005, a consumer who buys a defective movable thing can sue for non-conformity. However, this remedy's limitation begins to run with the delivery of the item, whereas the period of limitation of the remedy for defects in the Code civil is calculated from the defect's discovery.89 The different approach to limitation which these remedies imply are likely to cause difficulties in practice. As the Consumer Code does not exclude consumers from pursuing their rights by means of the remedies available in the Code civil, consumers can bring either the Consumer code's remedy for non-conformity or the Code civil's remedy for latent defects.90 For example, it is possible that a defect in a car appears later
'Prescription', p. 811.
88 In 2010 the Cour de Cassation again argued that judges have to explore whether a claim for non-
performance lies. That duty flows forth from article 12 of the Code de procédure civile. See Cass. 1re civ., 25 November 2010, 09-67495 (unpublished): 'qu’en ne recherchant pas si les défauts qu’elle a relevés, à défaut de constituer des vices cachés, ne caractérisaient pas un manquement du vendeur à son obligation de délivrance, la Cour d’appel a privé sa décision de base légale au regard de l’article 1604 du Code civil, ensemble de l’article 12 du Code de procédure civile'; again in Cass. chambre comm., 17 May 2017, 15-23079 (unpublished); in a 2007 case, the Cour de Cassation affirmed that a remedy based on art. 1648 Cc brought as a subsidiary to the remedy for non-performance takes the latter's period of limitation. See Cass. 3re civ., 10 October 2007, 06-18130, Bulletin 2007, III, no. 174.
89 Art. L211-12 Code de la consommation (2005) = art. L217-12 Code de la consommation (2016): L'action résultant du défaut de conformité se prescrit par deux ans à compter de la délivrance du bien; Art. 1648 Cc (2005): ... à compter de la découverte du vice...
90 Art. L211-13 Code de la consommation (2005) = art. L217-13 Code de la consommation (2016): Les dispositions de la présente section ne privent pas l'acheteur du droit d'exercer l'action résultant des vices rédhibitoires telle qu'elle résulte des articles 1641 à 1649 du code civil ou toute autre action de nature
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