The obligation de délivrance explained: the French seller's core duty to deliver

What the obligation de délivrance means under French law

The obligation de délivrance is the first of the seller's two great obligations in a French sale of goods, alongside the duty to warrant. Article 1604 of the Civil Code describes délivrance, in language inherited from the classical jurist Domat, as the transfer of the thing into the power and possession of the buyer. In practice the modern law reads that formula narrowly: the seller does not have to hand over the thing so much as place it at the buyer's disposal. The seller performs the obligation de délivrance by ceasing to exercise control over the thing and allowing the buyer to come and take it up.

This distinction matters because délivrance is not the same as physical livraison (shipment or hand-over to the buyer or a carrier), and it is not the same as the transfer of ownership. Ownership of a specific thing passes by the mere agreement of the parties, the moment the contract is formed, without any physical act. The obligation de délivrance instead brings the factual situation into line with that legal transfer: the buyer who is already owner must be put in a position to take possession. A seller who keeps the goods locked away has transferred ownership but has not yet performed délivrance.

Because délivrance is an obligation and not a warranty, its breach is treated as a contractual non-performance under the general law of obligations, not under a special protective regime. That has real consequences for foreign sellers and buyers dealing with France: the remedies, the burden of proof and the limitation period all follow the ordinary rules of contract. Understanding the obligation de délivrance is therefore the starting point for anyone assessing what a French seller must do, and what a disappointed buyer can claim. It also underpins the wider set of the seller's delivery and conformity obligations.

How the obligation de délivrance is performed: the modes of delivery

Because délivrance is a placing at the buyer's disposal, the way it is carried out varies with the nature of the thing sold. Saying that délivrance is not the same as handing over does not mean that a hand-over cannot perform it; a physical remittance is simply one method of making the thing available among several. The Civil Code recognises different modes according to whether the thing is a tangible movable, an intangible, or immovable property.

For a tangible movable, the obligation de délivrance may be performed by handing the thing over directly, by placing it in the hands of an agent such as a carrier, or by a symbolic delivery — for instance handing over the keys to the premises where the goods are stored. For an intangible, délivrance is achieved by remitting the relevant title documents or by letting the buyer use the asset; where the title is dematerialised, an account-to-account transfer performs it. For an immovable, délivrance is in principle accomplished by handing over the keys and the title deeds.

For cross-border sales into or out of France, these default modes are almost always overridden by the parties' own arrangements. Commercial contracts routinely fix the point of délivrance through Incoterms or a bespoke delivery clause, which then determines when the seller has done what the obligation de délivrance requires. The default rules of the Civil Code fill the gaps only where the contract is silent, so precise drafting of the delivery mechanism is one of the most valuable protections a seller or buyer can have.

The object of délivrance: the thing and its accessories (Article 1615)

The obligation de délivrance does not stop at the principal thing. Article 1615 of the Civil Code provides that the duty to deliver the thing includes its accessories and everything intended for its continued use. This is a broad rule, and French case law reads accessories in three overlapping senses that a foreign buyer should keep in mind when checking what a French seller owes.

First, there are material accessories: the fruits the thing has produced since ownership passed, and the items needed to use it — a power cable, activation codes, packaging, and, for a vehicle, its registration document. Second, there are legal accessories: real rights attached to the thing (such as a servitude benefiting the land sold), contracts that go with it (for example a lease relating to a building sold), and related rights of action. Third, there are intellectual accessories: the information and instructions that must be passed on with the thing, over and above whatever pre-contractual information was already provided.

The thing must also be delivered in the state it was in at the moment of sale. Where the sale concerns second-hand goods already worn at the time of contracting, the seller need not restore them before delivering — the buyer takes them as they stood. If délivrance does not take place on the day the contract is formed, the seller comes under a duty to preserve the thing in the meantime, and answers for any deterioration caused by its own fault. A seller who neglects an accessory, or lets the thing deteriorate through carelessness while holding it, has not fully performed the obligation de délivrance.

Correct quantity and délivrance conforme

The thing delivered must be the thing sold — this is the idea of délivrance conforme. A shortfall or excess in quantity is a form of non-conformity, because the seller must deliver a thing that matches the contractual stipulations in every respect. Article 1616 of the Civil Code makes the point on quantity: the seller must deliver the measure or contents stated in the contract. Discrepancies arise in movable sales — especially sales by weight or by measure — and in property sales where the actual surface area differs from the area stated.

Conformity is assessed both objectively and subjectively. Objectively, the thing must correspond to the type, brand or technical characteristics of what was sold; subjectively, it must match the particular stipulations the parties agreed. If a buyer ordered a grey car and is delivered a black one, the délivrance is not conforming even though a car was supplied. Where the contract is silent on quality, the thing must meet a reasonable standard — the goods must be sound and merchantable.

It is essential not to confuse délivrance conforme with the warranty against hidden defects. If there is a discrepancy between the thing delivered and the thing sold — the wrong item, the wrong quantity, the wrong stated feature — conformity of delivery is engaged. If instead the thing matches the contract but its actual use falls short of what was expected because of a latent flaw, the rules on hidden defects apply. French courts once blurred this line by treating conformity in a functional sense, but the higher chambers have since returned to a strict distinction between the two remedies. Which route a claimant takes changes the applicable time limits, so the classification is not academic.

Where and when: the place and time of délivrance (Article 1609)

Under Article 1609 of the Civil Code, délivrance must take place, unless otherwise agreed, at the location where the thing was at the time of sale. Because the seller need only make the thing available rather than carry it to the buyer, the debt is quérable and not portable: the place of délivrance is the seller's premises, and it is for the buyer to come and collect. This default rule flows directly from the nature of the obligation de délivrance as a placing at the buyer's disposal.

As to timing, délivrance must occur at the time the parties agreed. In the absence of any contractual term, it is due at the moment the contract is formed. Where payment is to be made in cash against the goods, the ordinary sequence is that the buyer pays first and the seller then delivers. A seller is not bound to deliver the thing if the buyer does not pay the price, unless the seller has granted a period of credit; this allows the seller to raise the defence of non-performance and withhold délivrance until payment is tendered.

For international sales the quérable default is routinely displaced. Delivery terms, Incoterms and carriage arrangements will normally fix a different place — the seller's factory, a named port, or the buyer's premises — and specify when the seller has discharged the obligation de délivrance. Parties selling into France should never rely on the Civil Code default without checking it against their commercial terms, because the two can point to very different outcomes on who must move the goods and bear the associated cost and risk.

Who bears the costs of délivrance (Article 1608)

Article 1608 of the Civil Code allocates the cost of délivrance by default. Unless the parties agree otherwise, the costs of the delivery itself fall on the seller, while the costs of collection and removal fall on the buyer. This mirrors the underlying logic of the obligation de délivrance: the seller prepares and makes the thing available at its location, and the buyer bears the expense of coming to take it away.

The words unless otherwise agreed do a lot of work here. In commercial practice the default split is frequently reversed or refined by the contract, whether through an express clause or through an agreed Incoterm that bundles delivery cost, carriage and insurance into a single allocation. Because the statutory rule is only a fallback, silence in the contract leaves the parties with a division of cost that may not reflect their commercial intentions, particularly where transport over a long distance is involved.

For a foreign buyer or seller, the practical lesson is to state expressly who pays for what. Set out which party bears the cost of preparing and making the goods available, which bears carriage, loading and unloading, and which bears any customs or handling charges. A clear cost clause avoids a later dispute in which one party invokes Article 1608 and the other invokes an Incoterm, and it dovetails with the place-of-delivery term so that cost and location are treated as one coherent package.

Délivrance distinguished from the transfer of property

One of the most common misunderstandings for those used to other legal systems is to equate délivrance with the transfer of ownership. Under French law they are separate. Ownership of a specific thing passes by consent alone, at the moment the parties agree on the thing and the price, even before any délivrance and before any payment. The obligation de délivrance is what comes afterwards: the factual step of putting the buyer, who is already the legal owner, in a position to take the thing.

Keeping the two apart has concrete effects. A buyer may be the owner of goods that are still sitting on the seller's premises awaiting délivrance; the seller in the meantime holds them and owes a duty to preserve them. Conversely, a failure to deliver is a non-performance of an obligation — it does not annul the sale or undo the transfer of ownership, because non-performance and nullity address different things. Nullity sanctions a defect in the formation of the contract; a défaut de délivrance is a failure to perform a validly formed contract.

It is also useful to keep livraison in the picture. Délivrance is the legal duty to place the thing at the buyer's disposal; livraison is the practical act of shipping or handing it over, often to a carrier; and the transfer of property is the intellectual operation by which the right of ownership passes. The three often coincide in a simple over-the-counter sale, but they can fall on different dates in a distance or instalment sale, which is exactly when precise contract drafting earns its keep.

Practical guidance: securing a conforming obligation de délivrance

Where délivrance is not performed, is late, or is non-conforming, the seller commits a breach and the buyer has the full range of ordinary contractual remedies. The buyer may seek forced performance in kind, which a court can order under a penalty for delay where performance is still possible; may terminate the contract where the non-performance is serious enough, whether through a resolutory clause, by notice, or by court order; may seek a proportional reduction of the price for imperfect délivrance; and may claim damages. In commercial sales the court also has a power to adjust the contract by reducing the price where the breach is not serious enough to justify termination. If délivrance becomes impossible because the thing is lost through an accident, the allocation of risk decides who bears the loss.

Because a délivrance claim is treated as an ordinary contractual non-performance, the action is time-barred after five years running from the day the buyer knew, or ought to have known, the facts allowing the claim, subject to a long-stop of twenty years. Where the goods were simply not delivered or the shortfall was apparent, time runs from when délivrance was due or from receipt; where a non-conformity was not apparent, time runs from its discovery. Parties may also adjust liability by contract, but a clause that would strip out the seller's core duty is deemed unwritten, and limitation clauses, while possible between businesses, are excluded between a professional seller and a consumer. The steps below help both sides manage the obligation de délivrance in practice.

Frequently asked questions about the obligation de délivrance

What does délivrance mean in French law?

The obligation de délivrance is the seller's essential duty under Article 1604 of the Civil Code to place the sold thing, in a state conforming to the contract, at the buyer's disposal. It is a duty to make the thing available rather than necessarily to carry or ship it. It is distinct from the practical act of livraison and from the transfer of ownership.

Does the obligation de délivrance include accessories?

Yes. Article 1615 of the Civil Code provides that the duty to deliver includes the thing's accessories and everything intended for its use. These can be material (cables, codes, documents, fruits), legal (attached real rights and related contracts) or intellectual (necessary information and instructions).

Where must the goods be delivered?

By default, under Article 1609 of the Civil Code, at the place where the thing was at the time of sale — normally the seller's premises. The debt is quérable, so it is for the buyer to come and collect unless the contract says otherwise. In cross-border trade this default is usually overridden by Incoterms or a delivery clause.

Who pays for delivery in a French sale?

Article 1608 of the Civil Code provides that, absent contrary agreement, the costs of delivery fall on the seller and the costs of collection and removal fall on the buyer. This is only a default rule and is frequently varied by contract or by an Incoterm. Stating the cost split expressly avoids later disputes.

Is délivrance the same as the transfer of ownership?

No. Ownership of a specific thing passes by the mere agreement of the parties, before any délivrance or payment. The obligation de délivrance is the later factual step of putting the buyer, already the owner, in a position to take the thing. A buyer can therefore own goods that are still awaiting délivrance at the seller's premises.

What if the goods delivered do not match the contract?

A discrepancy between the thing sold and the thing delivered is a failure of délivrance conforme, and the buyer has the ordinary contractual remedies — forced performance, termination for a serious breach, price reduction or damages. If instead a conforming thing is unfit because of a latent flaw, the warranty against hidden defects applies. The two regimes carry different time limits, so classify the problem correctly.

How long does a buyer have to sue on the obligation de délivrance?

Because a délivrance claim is an ordinary contractual non-performance, it is time-barred after five years from when the buyer knew or should have known the facts founding the claim, subject to a twenty-year long-stop. Where non-delivery or a shortfall was apparent, time runs from when delivery was due; where a non-conformity was hidden, from its discovery.

Key takeaways on the obligation de délivrance

How our French lawyers help with the obligation de délivrance

Petroff Avocats advises both sellers and buyers on the obligation de délivrance in French and cross-border sales. For sellers, we draft delivery, cost and payment-sequence clauses that fix where and when délivrance is performed, align them with Incoterms, and hold the line between conformity of delivery and warranty exposure. For buyers, we assess whether a seller has performed, secure the correct remedy for late or non-conforming délivrance, and act within the applicable time limits. On either side we translate the Civil Code defaults into practical, enforceable contract terms and, where a dispute arises, into a strategy that identifies the right legal basis before the clock runs out.

This article is for general information only. It does not constitute legal advice and cannot replace advice tailored to your circumstances. French sale-of-goods law is applied by the courts to the specific facts of each case. Contact our French lawyers for advice on your situation.