The Warranty Against Eviction (Garantie d'Éviction) in France

What the warranty against eviction guarantees

The garantie d'éviction is one of the two great warranties a French seller owes alongside the warranty against hidden defects. Governed by Article 1626 of the Civil Code and the articles that follow it, its object is to secure the buyer's peaceful possession of the asset bought. Delivery places the buyer in possession; the warranty against eviction makes that possession durable. In practice it answers a simple question that any purchaser of a business, a stock of goods or an intangible asset should ask: once I have paid and taken delivery, can someone lawfully take the asset away from me, or curtail the benefits I expected from it?

Eviction means the loss, total or partial, of the advantages the buyer was entitled to draw from the thing sold. Eviction is total when the buyer is completely deprived of the asset — for example when a true owner recovers it. It is partial when the buyer keeps the asset but loses part of its utility or of the rights attached to it, such as when an undisclosed charge or third-party right surfaces after completion. The warranty against eviction covers both, though the conditions and remedies differ according to who causes the disturbance.

French law splits the warranty into two branches by reference to the source of the disturbance. The seller must answer for eviction by its own act (the garantie du fait personnel) and for eviction by a third party (the garantie du fait des tiers). The two branches are not symmetrical: the first is far wider and cannot be contracted away, while the second is narrower and, in commercial dealings, may be limited. Understanding which branch a given problem falls under is the first step in any eviction dispute.

Eviction by the seller's own act (garantie du fait personnel)

The warranty against the seller's own act is the strongest limb of the garantie d'éviction. It forbids the seller from doing anything that would call into question, or merely disturb, the possession the buyer has acquired. The seller must not create or assert any right — real or personal — over the asset sold, and must not carry out material acts that deprive the buyer of the benefits the asset was meant to provide. The prohibition rests on the principle that a person bound to guarantee cannot turn round and dispossess the very party it warranted.

This branch is unusually broad because it covers two kinds of disturbance. A legal disturbance (trouble de droit) arises where the seller raises a legal claim incompatible with the buyer's right and seeks to enforce it in court — reselling the asset to a third party, claiming to have become owner again by adverse possession, or asserting a lease or usufruct that the contract never reserved. A factual disturbance (trouble de fait) arises where the seller interferes by a purely material act with no legal basis. The classic case is competition: a seller transfers a business (fonds de commerce) and then sets about diverting the customers it just sold. The Cour de cassation has confirmed that the seller of a business must abstain from any act tending to draw away the clientele of the business transferred.

The personal warranty carries three features that make it formidable. It is a matter of public policy: a clause purporting to exclude it is ineffective (the parties may, however, extend it). It binds the seller's heirs, who owe the guarantee on the same footing as their predecessor. And it is imprescriptible when raised as a defence: the exception of warranty is perpetual, so the seller and its heirs are never released from it, even after the twenty-year long-stop. The Cour de cassation has applied exactly this reasoning to refuse a seller who kept possession of land the right to claim it back by adverse possession against the buyer and later sub-buyers.

Eviction by a third party (garantie du fait des tiers)

The seller also warrants the buyer against disturbances coming from third parties, but this branch of the garantie d'éviction is narrower than the personal warranty in two respects. First, the seller answers only for legal disturbances — a third party's factual interference is not covered, because the seller cannot be made to guarantee acts it neither authorised nor could control. Second, the third party's right must have a pre-sale origin. The underlying risk is that the seller never held the right it purported to transfer, or that a third party already held a prerogative over the asset and can now assert it against the buyer.

For the warranty to apply the disturbance must be anterior to the sale, or at least find its source before the sale — for instance a right the seller granted to a third party before completion. In addition, the buyer must not have known of the third party's right, and must not have known of the risk of eviction when it contracted; a buyer who purchased with knowledge of the risk is treated as having bought at its own risk and peril, turning the transaction into a speculative one that excludes the warranty. The buyer benefits from a presumption of ignorance, which yields only where the third party's right was particularly apparent (a visible easement, for example).

The buyer can invoke this warranty in two ways. It may call the seller in as guarantor when the third party sues — the incidental route, under which the seller must step in and conduct the buyer's defence. Alternatively it may act on a principal basis: having lost the case against the third party, the buyer then sues the seller to recover the loss suffered. Where the disturbance is total and the sale in fact bore on the property of another, the buyer even has a choice — it may seek nullity of the sale, but the eviction warranty is often more advantageous because it opens the door to damages on top of the return of the price.

Typical third-party rights that trigger eviction

A range of pre-existing rights can expose the buyer to eviction by a third party. The most obvious is a competing claim to ownership: a third party who was the true owner brings an action to recover the asset, revealing that the sale in fact bore on another's property. Short of full ownership, a third party may hold a lesser real right — an undisclosed easement over land, a pledge, a usufruct, or a security interest — that diminishes the buyer's enjoyment of the asset without denying its title. French law attaches a specific guarantee of charges to this situation: a non-apparent, undeclared charge discovered after the sale engages the seller, even where the seller was itself unaware of it.

For businesses buying intangibles or goods that embody intangibles, intellectual property is the sharpest risk. If the asset sold infringes a patent, trademark, design or copyright held by a third party, that right-holder can restrain the buyer's use of the asset, causing a partial or total eviction whose source pre-dates the sale. A buyer of branded stock, of tooling, or of a licence granted by a seller who lacked the power to grant it may find its use curtailed. The warranty against eviction is one of the buyer's routes of recourse against the seller in these scenarios, alongside any contractual IP representations.

Statutory or contractual pre-emption rights form a third category. A third party entitled to be preferred on a sale — a tenant, a co-owner, a public authority — may unwind or override the buyer's acquisition where the pre-emption was not respected, again with a pre-sale origin. In each of these cases the analysis is the same: was the third party's right in existence, or rooted in facts existing, before the sale, and did the buyer legitimately ignore it? If so, the seller owes the garantie d'éviction.

Remedies: restitution of the price and damages

The consequences of eviction turn on whether it is total or partial. Where the eviction is total, the sale is undone and the seller must return the price. Article 1630 of the Civil Code adds that the seller may owe several further sums to the buyer: the value of any fruits the buyer must hand over to the evicting owner (such as an occupation indemnity the buyer had to pay the third party); the costs of every kind occasioned by the sale and by the warranty claim; and damages to repair the loss the buyer has suffered, including expenditure made on the asset during the period of enjoyment. The buyer is therefore placed, so far as money can, in the position it would have occupied had the eviction never happened.

Where the eviction is partial, or where the buyer relies on the guarantee of charges, the buyer has a choice between two outcomes. It may seek résolution (unwinding) of the sale, but only if it can show that the eviction or the charge is so significant that, had it known, it would not have bought at all. Failing that — or where the buyer prefers to keep the asset — it may claim an indemnity. Article 1638 governs the guarantee of charges, applying the same regime as for partial eviction. The indemnity for partial eviction is not a proportional fraction of the price; it is measured by the value of the part of which the buyer has been evicted, assessed at the time of the eviction.

The route by which the buyer proceeds matters for its exposure. If it defends the third party's claim itself and loses, it can then pursue the seller for the price and damages. If it calls the seller in as guarantor from the outset, the seller must conduct the defence and bear its consequences. Either way, the effect of the seller's own personal warranty is more radical still: because it is perpetual as a defence, a buyer sued by the very seller who warranted it can always oppose the exception of warranty and defeat the claim, whatever time has passed.

Excluding or limiting the warranty against eviction

How far the garantie d'éviction can be cut down depends on which branch is in play. The warranty against the seller's own act is a matter of public policy and cannot be excluded: any clause purporting to release the seller from its personal warranty is ineffective, under the reasoning of Article 1626 and Article 1628 of the Civil Code. The parties may only reinforce or extend it. A seller cannot, therefore, sell a business, insert a clause disclaiming the eviction warranty, and then compete for the same clientele; the clause is worthless against its own conduct.

The warranty against third-party acts, by contrast, is not of public policy and may in principle be set aside by agreement. Two important limits apply. A clause excluding it is treated as unwritten in a sale between a professional seller and a consumer buyer, where it is deemed abusive. And even a valid exclusion clause does not do all the work a seller might hope: a clause cannot deprive the buyer of the right to recover the price, and it is disregarded altogether where the seller deliberately concealed the risk of eviction from the buyer.

The only way an exclusion clause can also defeat the buyer's claim to restitution of the price is where the contract combines an exoneration clause with the buyer's declared knowledge of the risk — in other words, where the buyer has expressly acknowledged the danger and bought at its own risk and peril. That converts the transaction into a speculative one and removes the warranty. Absent such a declaration, an exclusion clause reduces the seller's exposure to damages but leaves the core obligation to return the price intact.

Why the warranty matters for businesses, IP and branded goods

The warranty against eviction is easy to overlook in ordinary sales of goods, where title problems are rare, yet it becomes central in three recurring commercial situations. The first is the sale of a business. Here the personal warranty operates as a built-in non-compete: the seller who diverts the transferred clientele, whether by soliciting former customers or by re-establishing a rival activity, disturbs the buyer's possession of the goodwill and breaches the garantie d'éviction. Because the warranty is public policy, this protection exists even where the contract is silent.

The second is the transfer of intellectual property, or of goods that embody it. A buyer of a trademark, a patent, a design or a stock of branded products relies on the seller having the power to transfer clean rights. If a third party's prior IP right restricts the buyer's use, the seller's warranty against third-party eviction is a route to recover the price and damages, provided the right pre-dated the sale and the buyer did not know of it. This overlaps with, but is distinct from, any express IP warranties negotiated in the contract.

The third is the purchase of an asset burdened by hidden charges or competing real rights — an undeclared easement, a security interest, a lease. The guarantee of charges lets the buyer claim even where the seller was itself unaware, subject to the requirement that the charge was non-apparent and undeclared. For foreign purchasers in particular, who may lack visibility over the French land, IP and security registers, the warranty against eviction is a meaningful protection — but it works best when paired with due diligence and precise representations at the drafting stage.

A practical checklist for the warranty against eviction

Whether you are buying or selling, a short, disciplined process reduces eviction disputes and clarifies your position if one arises. The steps below track the way a French court will analyse a garantie d'éviction claim — the source of the disturbance, its timing, the buyer's knowledge, and the remedy.

Frequently asked questions about the warranty against eviction

What is the warranty against eviction in France?

The garantie d'éviction, founded on Article 1626 of the Civil Code, is the seller's guarantee of the buyer's peaceful possession of what was sold. It protects against both the seller's own attempts to disturb that possession and against third parties who assert a prior right over the asset.

Can the seller compete with the buyer after the sale?

Not where competition disturbs the buyer's possession of what was sold. The warranty against the seller's own act treats such competition — for example diverting the clientele of a business sold — as a form of eviction. This operates as a non-compete even without an express clause, and it cannot be excluded.

What if a third party claims the goods or asset?

The seller must warrant the buyer against legal disturbances by third parties whose right pre-dates the sale, provided the buyer did not know of the risk. The buyer can call the seller in to defend the claim, or sue the seller afterwards to recover the price and damages.

Can the warranty against eviction be excluded?

The warranty against the seller's own act cannot be excluded — it is a matter of public policy. The warranty against third-party eviction can be limited by contract, but not against a consumer, not where the seller concealed the risk, and never so as to bar the return of the price unless the buyer expressly bought at its own risk.

Does the warranty cover intellectual property claims?

Yes, where a third party's prior IP right — a patent, trademark, design or copyright — restricts the buyer's use of the asset sold. If the right pre-dated the sale and the buyer did not know of it, the warranty against eviction is a route to recover the price and damages, alongside any contractual IP representations.

Is the seller's warranty time-barred?

The warranty against the seller's own act is perpetual when raised as a defence: a buyer sued by the seller who warranted it can always oppose the exception of warranty, even after the twenty-year long-stop. The warranty against third-party eviction follows ordinary prescription rules for claims brought by the buyer.

What is the difference between a trouble de droit and a trouble de fait?

A trouble de droit is a legal disturbance — someone asserts a right over the asset and seeks to enforce it. A trouble de fait is a purely material interference with no legal basis, such as competition. The seller warrants both when they come from itself, but only legal disturbances when they come from a third party.

Key takeaways on the warranty against eviction

How our French lawyers help with the warranty against eviction

Petroff Avocats advises both buyers and sellers on the warranty against eviction in French sales, business transfers and IP deals. For buyers, we assess title, charges, pre-emption and IP exposure before completion, negotiate protective representations, and enforce the warranty — calling the seller in as guarantor or pursuing restitution of the price and damages where eviction strikes. For sellers, we calibrate the contract to manage exposure lawfully, explain the limits of any exclusion clause, and structure non-compete and disclosure terms so that the public-policy personal warranty does not produce unexpected liability years after the deal.

This article is for general information only. It does not constitute legal advice and cannot replace advice tailored to the facts of a specific transaction or dispute. The law and its interpretation evolve, and cross-border sales raise additional issues. Contact our French lawyers for advice on your situation.