In view of article 1643 Code civil;

Given that according to the decision under attack (Toulouse, 1 June 1995) M. Rolland, who runs a garage, sold Val Agri Ltd. a used car whose gear-box was in such poor condition that it broke down, and that when Val Agri claimed damages from M. Rolland, he sought an indemnity from his own seller, M. Brincat, likewise a garagiste, who invoked a clause in his contract of sale which excluded any guarantee;

Given that in order to sidestep this exclusion and render M. Brincat liable to indemnify M. Rolland for the damages for which he had been held liable, the judgment below founded on the fact that M. Brincat was well aware of the defects in the vehicle since he himself had repaired it;
Given that in so holding after finding that both M. Brincat and M. Rolland were in the same kind of business, the court below violated the text cited above;

For these reasons QUASHES and ANNULS the decision below, but only in so far as it held M. Brincat liable to indemnify M. Rolland in respect of his liability towards Val Agri, and remands the matter to the Court of Appeal of Agen.

This note on subsequent developments reflects the legal situation as of October 2004.

Com, 3 February 1998 : Case law confirmed by a judgment of the 15 May (Cass com 15 May 2001, pourvoi no 98-18.603), approving a judgment which had removed a guarantee exclusion clause in a sale concluded between professionals, but with different specialisms, and explaining that it did not matter that the contract in question had a direct relationship with the activity carried on by the purchaser.

Translation by Raymond Youngs

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