Seller Warranties and Liability in France: the Four Warranties a Seller Owes

An overview of the seller's warranties and liability in France

Under French law a seller has two great obligations: to deliver the thing sold and to warrant it. The duty to deliver is a single obligation of performance, but the duty to warrant is not one warranty at all — it is a bundle of distinct legal regimes, each with its own trigger, its own remedies and its own time limit. For a foreign business selling into or buying from France, the practical difficulty is rarely the existence of a seller warranty; it is identifying which of the several French sales warranties applies to the problem in front of you and, once identified, acting on it before the relevant deadline expires.

Four regimes matter in a sale of goods. First, conformity of delivery: the seller must place at the buyer's disposal exactly the thing that was agreed, in the right identity, quantity and quality. Second, the warranty against hidden defects (the garantie des vices cachés) under Article 1641 of the Civil Code, which allocates to the seller the risk of latent flaws that make the thing unfit for use. Third, the warranty against eviction (the garantie d'éviction) under Article 1626 of the Civil Code, which guarantees the buyer undisturbed possession. Fourth, where the buyer is a consumer, the guarantee of conformity under Article L217-3 of the Consumer Code, a protective remedy that overlays the general law.

Standing beside these contractual warranties is a separate liability regime — liability for defective products under Article 1245 of the Civil Code — which is not a warranty of the sale at all but a strict, tort-based liability for products that are unsafe and cause harm to persons or to other property. These regimes are not mutually exclusive. The same defective machine can, on the same facts, engage more than one of them, and part of the art of a claim is choosing the most advantageous route while respecting the boundaries French case law has drawn between them.

For a foreign business, three features of this landscape are worth internalising before any dispute arises. The warranties operate by default, whether or not the contract mentions them, so silence does not mean absence of exposure. They carry very different limitation periods, so the same complaint can be timely under one heading and barred under another. And the extent to which they can be softened by contract depends on who the buyer is — a clause that is robust in one supply chain may be worthless in the next. A seller that treats seller warranty in France as a single, uniform risk will consistently mis-price its liability; a buyer that does the same will let good claims lapse.

Conformity of delivery: delivering exactly what was agreed

The first strand of seller warranty in France is conformity of delivery. The seller's essential obligation is to make the thing available to the buyer, and the thing delivered must be the thing sold. Conformity here is measured against the contract: the item must match the agreed identity, type, technical characteristics, quantity and any particular specifications the parties recorded. If a buyer ordered a grey vehicle and receives a black one, or contracted for a stated surface area and receives less, the delivery is non-conforming even though the item may be perfectly usable in the abstract.

It is essential to distinguish conforming delivery from the warranty against hidden defects, because the two are often confused and the boundary between them is narrow. If there is a mismatch between the thing delivered and the thing described in the contract, the question is one of conformity. If, instead, the thing corresponds to the contract but a latent flaw makes it unfit for its normal use, the question belongs to the law of hidden defects. The Cour de cassation, after a period of divergence, has settled on this strict separation: a purely functional shortfall against the buyer's expectations is a matter of warranty, while a departure from what the contract stipulated is a matter of delivery.

The distinction has real consequences, because the two regimes carry different time limits and different remedies. A claim founded on defective delivery is governed by the general law of contractual non-performance: the buyer may seek forced delivery, termination for a sufficiently serious breach, a proportional price reduction, or damages, and the action is subject to the ordinary five-year limitation running from the day the buyer knew or should have known the facts. Because that window is more generous than the short deadline attaching to hidden defects, buyers frequently prefer to frame a complaint as non-conformity where the facts allow it — but French courts police the frontier and will requalify a claim that is truly about fitness for use.

The warranty against hidden defects (Article 1641 of the Civil Code)

The warranty against hidden defects is the most litigated of the French sales warranties. Under Article 1641 of the Civil Code the seller must warrant the thing against latent defects that render it unfit for its intended use, or that so diminish that use that the buyer would not have bought it, or would have paid less, had the defect been known. Unlike conformity of delivery, this is not a duty of performance but a mechanism for allocating the risk of the thing: the seller carries that risk even when it neither caused nor knew of the flaw.

To engage the warranty, a defect must satisfy three conditions developed by the courts. It must be inherent in the thing itself — a shortcoming caused by the buyer's misuse or by external factors does not qualify. It must be hidden, meaning not apparent and not known to the buyer; a defect the buyer could detect on an elementary inspection is treated as accepted on receipt, though the standard is stricter for a professional buyer, who is presumed able to detect flaws within its field. And it must pre-date the sale, at least in germ, even if its effects only surface later. The buyer bears the burden of proving anteriority, but courts accept circumstantial indications, such as the defect appearing shortly after delivery.

Where the warranty applies, Article 1641 gives the buyer a choice between two classic actions: returning the thing and recovering the price (the action rédhibitoire) or keeping it and recovering part of the price (the action estimatoire). Damages are available in addition where the seller knew of the defect — and a professional seller is presumed, irrebuttably, to have known of defects in things within its speciality, so a business seller cannot escape liability by pleading ignorance against a buyer outside that speciality. Crucially, the action must be brought within two years of discovery of the defect, subject to a twenty-year long-stop running from the sale.

The warranty against eviction (Article 1626 of the Civil Code)

The warranty against eviction, governed by Article 1626 of the Civil Code, protects a different interest: not the physical quality of the thing but the buyer's peaceful legal possession of it. It is the natural continuation of delivery — having handed the thing over, the seller must not, and must protect the buyer against others who would, disturb the buyer's enjoyment of it. The warranty has two branches, one aimed at the seller's own conduct and one aimed at third parties, and they operate very differently.

The warranty against the seller's own act (garantie du fait personnel) is broad and is a matter of public policy: the seller may not disturb the buyer's possession either in law or in fact, and any clause purporting to exclude this branch is ineffective. In law, the seller cannot resell the thing, claim ownership of it, or assert a right it did not reserve. In fact, the seller must abstain from any conduct that undermines the buyer's enjoyment — the classic case being the seller of a business who then diverts its former customers. This branch is imprescriptible: the seller and its heirs are never released from it, even beyond the ordinary long-stop.

The warranty against third-party acts (garantie du fait des tiers) is narrower. It covers only legal disturbances — a third party asserting a real right, an intellectual-property right, a servitude or a similar prerogative whose source pre-dates the sale — and not mere factual interference. The buyer must not have known of the risk when buying, failing which it will be taken to have bought at its own risk. Remedies range from the seller being required to defend the buyer, to restitution of the price and damages on total eviction, or termination or an indemnity on partial eviction. This branch is not of public policy and may in principle be excluded, but even an exclusion clause cannot deprive the buyer of restitution of the price unless the buyer knowingly accepted the risk.

The consumer guarantee of conformity (Article L217-3 of the Consumer Code)

Where the buyer is a consumer, a fourth regime overlays the general law: the legal guarantee of conformity under Article L217-3 of the Consumer Code. Transposing successive EU directives, it applies to sales of tangible movable goods — new or second-hand — between a professional seller and a consumer or a non-professional buyer. It does not replace the general-law warranties; the consumer may choose to sue on delivery, on hidden defects or on the guarantee of conformity, whichever is most advantageous.

The guarantee's great advantage for the consumer is its breadth and its reversed burden of proof. Conformity is assessed generously: the good must match the contractual description, type, quantity and quality, be fit for any special use made known to the seller, come with the necessary accessories and, where relevant, receive agreed updates. In the absence of a special stipulation, the good must be fit for the use ordinarily expected of such a good. And a defect that appears within a set period after delivery is presumed to have existed at delivery — a presumption running for twenty-four months for new goods and twelve months for second-hand goods — so the consumer need not prove anteriority within that window.

The remedies are structured as a hierarchy. The consumer must first seek performance in kind — repair or replacement — which the seller must provide within thirty days and at no cost to the buyer, although the seller may decline the option chosen where it is impossible or disproportionately costly. Only if that fails, is refused, is unduly delayed or would cause major inconvenience may the consumer move to the second tier: termination of the contract (unavailable where the defect is minor) or a proportional price reduction, in each case with damages available in addition. The guarantee period is two years, while the limitation period for actually bringing the action is the ordinary five years from the buyer's knowledge of the defect.

Product liability for defective products (Article 1245 of the Civil Code)

Liability for defective products under Article 1245 of the Civil Code stands apart from the warranties above. It is not a warranty of the sale but a strict liability regime, transposing the EU product-liability directive, that engages when a product does not offer the safety one is legitimately entitled to expect and, in consequence, causes harm. The distinction from hidden defects is sharp: the warranty against hidden defects applies where the thing itself is damaged or unfit, whereas product liability applies where the product causes damage to a person or to property other than the product itself.

Because the regime is strict, the victim need not prove fault — only the defect, the damage and the causal link. Liability falls in principle on the producer, on a person who brands the product as its own, and on the importer into the EU; the supplier, including the seller, is liable only as a fallback where the producer cannot be identified. The damage covered is personal injury and damage to property above a statutory threshold, and the producer has a limited set of defences, including the development-risk defence. The action is subject to a three-year period from the victim's knowledge of the damage, the defect and the producer's identity, within an absolute ten-year period running from the product being put into circulation.

For a seller, the practical point is that product liability and the sales warranties can run in parallel on the same facts. The Cour de cassation has confirmed that a producer may be pursued both under product liability, for harm to persons or to other property, and under the warranty against hidden defects, for damage to the sold product itself. A business that puts goods into the French market therefore faces two separate exposures with different claimants, different limitation periods and — importantly — different scope for contractual limitation, since product liability towards a victim cannot be excluded in the way a sales warranty sometimes can.

How the warranties fit together, and which to invoke B2B versus consumer

The regimes overlap, and French law lets the buyer choose among the routes that are open on the facts — but the routes that are open depend heavily on the buyer's status. A consumer or non-professional buyer of movable goods has the widest choice: conformity of delivery, hidden defects and the consumer guarantee of conformity, plus product liability where a defect causes harm. A business buyer, by contrast, is confined to the general-law warranties — conformity of delivery, hidden defects and eviction — and to product liability, with no access to the Consumer Code guarantee.

The buyer's status also shapes how far the seller can shrink its exposure. Against a consumer, clauses that suppress or reduce the buyer's warranty rights are treated as unfair and struck out, and a professional seller is presumed to know of any hidden defect. Between businesses the picture is more permissive: a clause limiting or excluding the hidden-defects warranty is valid only between professionals of the same speciality, and is ineffective where the seller knew of the defect. This is why the same drafting can be enforceable in one supply chain and worthless in another, and why the allocation of warranty risk should be examined clause by clause rather than assumed.

There is also a question of forum and procedure that the choice of warranty affects. A commercial sale between businesses will usually be heard by the commercial court, with the freer rules of evidence that go with commercial matters, whereas consumer claims travel with their own protective procedural regime. The evidential burden differs too: a buyer relying on hidden defects must prove the flaw and its anteriority, while a consumer under the guarantee of conformity benefits from a presumption that the defect existed at delivery. These differences mean the strongest legal basis is not always the one that is easiest to prove, and the analysis should weigh the merits of a claim against the practicalities of establishing it.

Choosing the right claim is therefore a sequence of practical questions rather than a single answer. The steps below set out how we approach the analysis for a buyer deciding what to bring, and — read in reverse — how a seller should stress-test its own exposure before a dispute arises.

Mapping the warranties: remedies, claimants and time limits

The table below maps the four sales warranties and the product-liability regime side by side. It is a starting point, not a substitute for advice: the deadlines in particular depend on when time starts to run, and the availability of an exclusion clause depends on the status of the parties. But it shows at a glance why identifying the right regime early is decisive — the same defect can be live under one heading and time-barred under another.

Two features of this map deserve emphasis for cross-border traders. First, the warranty against eviction is the odd one out on timing: its personal-act branch never lapses, so a seller who later competes with or claims against its own buyer can be met by the warranty decades after the sale. Second, the two-year hidden-defects deadline is short and unforgiving, and the temptation to reframe a hidden-defect complaint as non-conformity in order to reach the longer general-law limitation is exactly the manoeuvre French courts scrutinise. Getting the characterisation right at the outset is therefore not a formality but the difference between a live claim and a dead one.

Finally, remember that these regimes can be reshaped by contract within limits. Between businesses of the same speciality, warranty limitation and liability caps are often valid; against consumers and against buyers outside the seller's speciality they are frequently void. Any well-drafted French sales contract should therefore address each warranty deliberately — see limiting or excluding warranties in B2B sales — rather than leaving the default regimes to operate by accident.

Frequently asked questions about seller warranties in France

What warranties does a French seller owe?

A French seller owes conformity of delivery under the general law, the warranty against hidden defects under Article 1641 of the Civil Code, and the warranty against eviction under Article 1626 of the Civil Code. Where the buyer is a consumer, the seller also owes the guarantee of conformity under Article L217-3 of the Consumer Code. Separately, a producer or importer may face strict product liability under Article 1245 of the Civil Code.

What is the difference between conformity and hidden defects?

Conformity of delivery asks whether the thing delivered matches what the contract described — its identity, quantity and specifications. The warranty against hidden defects asks whether a latent flaw makes the thing unfit for its normal use. The boundary is narrow, and French courts will requalify a claim that is truly about fitness for use even if the buyer frames it as non-conformity.

Which warranty applies for a business buyer?

A business buyer may rely on conformity of delivery, the warranty against hidden defects and the warranty against eviction, together with product liability where a defect causes harm. It cannot use the Consumer Code guarantee of conformity, which is reserved to consumers and non-professionals. How far these warranties can be limited depends on whether the buyer shares the seller's speciality.

Is product liability separate from the sales warranties?

Yes. Product liability under Article 1245 of the Civil Code is a strict, tort-based regime that applies where an unsafe product causes harm to a person or to property other than the product itself. It runs in parallel with the sales warranties, can involve different claimants and deadlines, and cannot be excluded towards a victim in the way a sales warranty sometimes can.

Can seller warranties be limited or excluded?

Sometimes. Between professionals of the same speciality, a clause limiting or excluding the hidden-defects warranty can be valid, as can liability caps within limits. Against a consumer, or against a business buyer outside the seller's speciality, such clauses are generally struck out, and the warranty against the seller's own act of eviction cannot be excluded at all.

How long does a buyer have to claim under each warranty?

A hidden-defects claim must be brought within two years of discovering the defect, subject to a twenty-year long-stop from the sale. Claims for non-conforming delivery and under the consumer guarantee follow the ordinary five-year limitation. Product liability carries a three-year period from knowledge within a ten-year long-stop, while the personal-act branch of the eviction warranty never lapses.

Does French seller warranty law apply to a cross-border sale?

It can, depending on the applicable law and, for international sales of goods, on whether the Vienna Convention governs. Where French domestic law applies, these warranties apply by default, and the Consumer Code guarantee will apply to sales to French consumers regardless of contractual attempts to exclude it. The applicable-law analysis should be settled before relying on any particular warranty.

Key takeaways on seller warranties in France

How our French lawyers help with seller warranties and liability

Petroff Avocats advises both sellers and buyers on the full range of French sales warranties. For sellers, we draft and stress-test general terms and warranty clauses so that limitations and liability caps hold up given the parties' status, and we defend hidden-defect, eviction and product-liability claims, including through pre-trial expertise. For buyers, we characterise the problem correctly at the outset, preserve evidence and deadlines — the two-year hidden-defects window is easily lost — and select the most advantageous route among conformity, hidden defects, eviction, the consumer guarantee and product liability, before the wrong choice forecloses a live claim.

This article is for general information only. It does not constitute legal advice and should not be relied upon as such. French warranty law turns on the precise facts, the status of the parties and the applicable time limits. Contact our French lawyers for advice on your situation.