The Seller's Delivery and Conformity Obligations in France

The seller's two great obligations: to deliver and to warrant

French sale law places two principal obligations on the seller, and Article 1603 of the Civil Code states them in a single line: the seller must deliver the thing and must warrant the thing it sells. Everything a foreign supplier or buyer needs to understand about performance of a French sale flows from that division. The delivery obligation in France — what practitioners call the obligation de delivrance — is the seller's essential duty, because without delivery the buyer never obtains the practical enjoyment of what it paid for. The warranty side is a cluster of separate guarantees that protect the buyer after delivery has taken place.

These two limbs answer different questions. The delivery obligation asks whether the seller placed the correct thing, in the correct quantity and condition, at the buyer's disposal at the agreed place and time. The warranties ask whether that thing is free of hidden defects, whether the buyer's peaceful possession is secure against the seller and third parties, and — where a consumer buys — whether the goods conform to the statutory guarantee. Because the conditions, remedies and time limits differ sharply between these actions, correctly identifying which obligation has been breached is often the decisive first step in any dispute.

This article is the hub for the delivery and conformity topic. It explains the delivery obligation in France in outline and then signposts the detailed guides: the delivery obligation explained, conforming delivery vs the guarantee of conformity, and the buyer's remedies for non-conforming goods. The separate warranty against hidden defects and the warranty against eviction are treated under the seller's warranties heading, because they rest on a different logic — the allocation of risk rather than the performance of a contractual duty.

The delivery obligation (obligation de delivrance) under Article 1604

Article 1604 of the Civil Code defines delivery as the transfer of the thing sold into the power and possession of the buyer. The wording is old, and it can mislead. Ownership has usually already passed to the buyer by the contract itself, so delivery is not really a transfer of the right. What the seller must do is place the thing at the buyer's disposal — a mise a disposition — by ceasing to exercise control over it and allowing the buyer to come and take it. Delivery is accomplished, the Cour de cassation has held, once nothing on the seller's side prevents the buyer from disposing of the thing.

It follows that delivery (delivrance) is not the same as physical carriage (livraison). The seller does not have to carry the goods to the buyer; the debt is what French lawyers call querable and not portable, meaning that, absent contrary agreement, it is the buyer who must come and collect at the place where the thing is located. The delivery obligation in France can be performed in several ways depending on the nature of the thing: hand-to-hand transfer of a movable, handing the goods to a carrier chosen by the buyer, remittance of the keys to premises where the goods are stored, or, for intangibles, transfer of the relevant title or account entry.

For a fuller treatment of the modes of delivery, symbolic handover and the moment performance is complete, see the delivery obligation explained. One practical point deserves emphasis here: with complex or engineered goods, French courts have held that the delivery obligation is not fully performed until the equipment has been effectively brought into working order, so a seller who installs or commissions the goods may remain on the hook well after the pallet has left its warehouse.

Place, time, cost, state and accessories of delivery

Where the contract is silent, the Civil Code fixes the place of delivery as the place where the thing was located at the time of the sale — in practice, the seller's premises. The time is, in default of a stipulated date, the moment the contract is formed, or a reasonable period thereafter for goods that must be produced. On cost, the general rule is that removal from the agreed point falls on the buyer, while any expense of moving the goods to a different agreed place falls on the seller unless the parties provide otherwise. When the parties adopt an Incoterm, that term settles the place, the cost split and the moment of delivery, overriding the default rules.

The thing must be delivered in the state it was in at the moment of sale. A seller of second-hand goods need not refurbish them; conversely, if delivery is deferred, the seller must preserve the goods and answers for their loss until delivery occurs. Article 1616 of the Civil Code requires the seller to deliver the quantity stated in the contract. Commercial usage tolerates minor variance — a margin of a few per cent is often accepted, and the word environ (approximately) widens it — but a seller cannot use tolerance to shave the quantity at will, and a serious shortfall is treated as a failure to deliver rather than a mere quantity discrepancy.

Article 1615 of the Civil Code extends the delivery obligation to the accessories of the thing and everything intended for its permanent use. Accessories may be material (power cords, activation codes, packaging), legal (rights and contracts attached to the thing) or informational (the instructions and documents the buyer needs to use the goods). French courts take this seriously: failure to hand over a vehicle's registration certificate, or a ship's registration papers, has been held to justify termination of the sale for breach of the delivery obligation. Handing over false documents is treated as no delivery at all.

Conforming delivery vs the guarantee of conformity vs hidden defects

The delivery obligation in France carries a second, more intellectual dimension: conformity. The thing delivered must be the thing sold. Conformity is assessed against the contract — objectively (type, brand, technical characteristics) and subjectively (the parties' particular stipulations). Deliver a black car where a grey one was ordered, a clientele file that is an empty address book, or equipment that fails to reach a promised capacity, and the delivery is non-conforming even if the buyer suffers no immediate loss. This is conforming delivery (delivrance conforme), and it is a matter of contractual performance.

It must be kept apart from two neighbouring regimes. The warranty against hidden defects addresses a different problem: not a mismatch between the thing delivered and the thing sold, but a latent flaw that makes the thing unfit for its intended use. As a rough guide, French courts distinguish a difference between the thing delivered and the thing agreed (conformity) from a difference between the expected use and the actual use (hidden defects). The border can be thin, and the Cour de cassation moved for years before settling on this strict distinction. The third regime, the consumer guarantee of conformity under the Consumer Code, applies only when a professional sells to a consumer and layers a statutory two-year presumption on top of the general law.

Choosing the right claim matters because the conditions and deadlines diverge. An action for non-conforming delivery runs under the general five-year prescription, whereas a hidden-defects claim must be brought within two years of discovery of the defect. Where the classification is uncertain, the prudent course is to plead both, so the court examines the case under each heading. The choice is developed in conforming delivery vs the guarantee of conformity.

The buyer's remedies for non-delivery, late or defective delivery

When the seller fails to deliver, delivers late or delivers a non-conforming thing, it commits a breach, and the buyer has the full range of remedies of the general law of obligations. First, the buyer may seek forced performance in kind: a court can order delivery, if necessary under a penalty payment (astreinte). The old idea that an obligation to do resolves only in damages does not apply — delivery is susceptible to forced performance. Where performance in kind has become impossible, that remedy is excluded and the buyer falls back on damages.

Second, the buyer may seek termination (resolution). Article 1610 of the Civil Code makes delivery a fundamental obligation and allows the buyer to obtain termination, or to be put in possession, where the seller fails to deliver within the agreed time. Termination may rest on a resolutory clause, or on a sufficiently serious non-performance notified by the buyer, or on a court decision. A mere delay in delivering non-perishable goods may not be serious enough to justify unilateral termination, though it can still support damages. Third, since the 2016 reform of contract law, the buyer faced with an imperfect delivery — incomplete or late — may claim a proportional reduction of the price, and in commercial matters the judge holds a power to reduce the price where the breach is not grave enough to terminate.

Fourth, in commercial sales of generic goods a buyer enjoys a long-standing right of replacement purchase (faculte de remplacement): where a merchant seller will not deliver, the buyer may itself buy equivalent goods from a third party and recover the price difference, provided it first puts the seller on notice and buys at market conditions. This self-help remedy is not available for a specific, individualised machine. Damages may be combined with these remedies to compensate the loss caused by the breach; they can, in practice, be set off against the outstanding price.

The mechanics of each remedy, and how to sequence them, are set out in the buyer's remedies for non-conforming goods and, for timing failures specifically, in late or non-delivery remedies.

Acceptance of the goods and its effect on later claims

The mirror image of the seller's delivery obligation is the buyer's duty to take delivery — to collect and to inspect the goods. This step has a powerful legal consequence. A buyer who accepts the goods without reservation is treated as having considered them conforming as regards apparent defects: it can no longer complain of a mismatch that inspection would have revealed. The Cour de cassation applies this rule firmly, and a professional buyer is expected to detect what its trade allows it to detect.

Acceptance does not, however, extinguish everything. The buyer keeps the right to raise non-apparent defects of conformity, unless its profession put it in a position to know of them, and it retains its rights under the warranty against hidden defects, which by definition concern flaws that inspection would not reveal. The burden of proving non-conformity lies on the buyer, so the way acceptance is documented often decides the case. With perishable goods, the buyer must check state and quality at the moment of delivery.

The process also protects the seller. Where the contract fixes a term for the buyer to remove the goods and makes it a determining condition, the seller can rely on automatic termination if the buyer fails to collect in time, and from the agreed removal date the risk in the goods passes to the buyer. The interplay of inspection, reservations and approval in sales by sample is developed in inspection and acceptance of goods.

How delivery interacts with the transfer of ownership and risk

Three ideas that beginners often merge must be kept distinct: the transfer of ownership, the delivery of the thing, and the passing of risk. Under French law ownership of a specific thing usually passes by the mere agreement of the parties, before any delivery or payment. Delivery is the later, factual act of placing that thing at the buyer's disposal. Risk, as a default, follows ownership — res perit domino, the loss falls on the owner — so a buyer who is already owner may bear the accidental loss of goods that are still in the seller's hands awaiting collection.

Until delivery, the seller is not free of duty. It must preserve the thing with care and answers for loss caused by its own fault; a seller who has taken goods back for repair and not returned them can face termination of the sale. Where the seller acts as loader or dispatcher and mishandles the goods, it can incur liability even under an ex-works arrangement. Conversely, a formal notice to the buyer to take delivery can shift the risk of accidental loss back onto a buyer who is late in collecting.

For most cross-border supplies the practical answer is to decouple risk from the default rule by contract, tying it to a defined delivery event and confirming it through an Incoterm. That keeps the passing of risk in step with the physical movement of the goods and avoids the classic trap of goods destroyed after the sale but before the buyer collects them.

Putting it together: a delivery and conformity checklist

Whether you sell into France or buy from a French supplier, most delivery disputes are avoided by disciplined drafting and disciplined receiving. The delivery obligation in France is largely default law: the parties are free to reshape the place, time, cost and moment of delivery, to allocate risk, and to set out how conformity will be checked. The steps below turn the rules in this guide into a working process for a single sale.

Each step maps onto a detailed guide in this series. Start with the delivery obligation explained for the mechanics of handover, then read across to conformity, remedies and acceptance as your situation requires.

Frequently asked questions about the delivery obligation in France

What must a French seller deliver?

Under Article 1604 of the Civil Code the seller must place the thing sold at the buyer's disposal, in the agreed identity, quantity and quality. Article 1615 adds the accessories and everything intended for the thing's permanent use, including the documents and information needed to use it. Delivering the wrong thing, the wrong quantity or without its papers is a breach of the delivery obligation.

When and where must the goods be delivered?

Absent a contrary clause, delivery takes place where the goods were located at the time of the sale — usually the seller's premises — and at the time the contract fixes, or the moment of formation in default. The debt is querable, so the buyer normally collects rather than expecting door-to-door carriage. An Incoterm, if adopted, overrides these defaults.

What if the goods do not match the contract?

That is a question of conforming delivery. The thing delivered must be identical to the thing sold, judged against the contract. A mismatch entitles the buyer to forced performance, termination, a price reduction or damages. Keep it distinct from a hidden defect, which concerns a latent flaw affecting the thing's use rather than a departure from the specification.

Who pays the cost of delivery?

By default the buyer bears the cost of removing the goods from the agreed point, while the seller bears any cost of moving them to a different agreed place. The parties are free to reallocate these costs, and in international trade an Incoterm settles the split. Unless agreed otherwise, transport costs fall on the buyer once it has become owner.

Does accepting the goods waive my claims?

Accepting without reservation is treated as accepting the goods as conforming for apparent defects, so those claims are usually lost. It does not waive claims for non-apparent defects of conformity, nor your rights under the warranty against hidden defects. Always record precise written reservations on receipt to protect your position.

Is delivery the same as the transfer of ownership?

No. Ownership of a specific thing generally passes by agreement alone, often before delivery. Delivery is the separate factual act of placing the thing at the buyer's disposal. Risk of accidental loss follows ownership by default, so the two can come apart — which is why cross-border contracts tie risk to a defined delivery event, usually through an Incoterm.

What can the buyer do if the seller delivers late?

Article 1610 of the Civil Code lets the buyer seek termination or be put in possession where the seller misses the delivery time, and damages are available on top. In a commercial sale of generic goods the buyer may also make a replacement purchase and recover the price difference. Most of these remedies require a prior formal notice to perform.

Key takeaways on the delivery obligation in France

How our French lawyers help with delivery and conformity

Petroff Avocats advises both sellers and buyers on the delivery obligation in France. For suppliers, we draft delivery, conformity-check, risk-transfer and Incoterm clauses that make performance certain and limit exposure to conformity claims. For buyers, we build receiving and reservation protocols, assess whether a problem is a conformity issue or a hidden defect, and pursue forced performance, termination, price reduction, damages or a replacement purchase — sending the mise en demeure and observing the time limits that so often decide these disputes. On cross-border trade we advise on the CISG, applicable law and jurisdiction so that your delivery terms hold up wherever the dispute is heard.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. French sale law turns on the precise wording of your contract and the facts of your transaction. Contact our French lawyers for advice on your situation.