Given that according to the decision below (Colmar, 13 July 1978) the Cave cooperative vinicole de Bennwihr (the Cooperative) sought from the Société Metausel a supply of paint to be applied to its new premises, and that the paint of the kind recommended by Metausel fell off the walls in places and became discoloured in others;

…

Given that the decision is [also] criticised for holding Metausel liable for the harm suffered by the Cooperative as a result of the abnormal discoloration of the paint in question whereas, according to the defendant, (1) once the paint had vested in the Cooperative it was the Cooperative that bore the risk of its loss or accidental destruction, (2) in the absence of vice caché or disconformity of the product with the contractual specifications, a seller is only liable for recommending its use if he was mistaken as to its qualities or if it had some intrinsic quality which rendered it unsuitable for the purpose envisaged, but not if it proves unsuitable only by reason of external circumstances which the seller, who is not liable for damage due to improper or abnormal use of the product delivered, could neither foresee nor avoid; and (3) the court having ignored the seller’s argument that the discoloration of the paint was due to the unusual (and therefore unforeseeable or inevitable) composition of the concrete to which the paint was applied by the Cooperative it was not entitled to infer from the mere fact that the product deteriorated that the seller was at fault, for it not only ignored the seller’s explanation which showed that there was no fault on its part, but actually stated that the paint became discoloured by some unknown agency and that there was nothing wrong with its intrinsic qualities;

But given that the Court of Appeal found that Metausel had offered and recommended the use of the paint in question as “specially suited” for the purpose required by the Cooperative, it was entitled to reject the explanation put forward by Metausel that the cause of the deterioration of the paint was the condition of the concrete and that it was not at fault; that accordingly this ground of review must be dismissed;

On the third ground of the application for review:

Given that the decision below is also criticised for holding that Metausel’s liability was contractual in nature and so rejecting its claim for an indemnity under its insurance policy with La Concorde whereas, according to Metausel, (1) the fault of a contractor in giving bad advice which induces the other party to enter into the contract necessarily precedes the formation of the contract and so cannot constitute breach of any obligation arising out of the contract, and that in consequence any liability of the party so at fault cannot but be delictal, and (2) the terms of the policy, cited by the court below, are clear and precise, covering the assured’s liability for damage caused to third parties “as a result of a mistake in the presentation of its products”, so that in denying the insurer’s liability after holding that the liability of the assured was for mistakenly presenting the product as suitable for the purpose envisaged by the buyer the court of appeal has purely and simply refused to apply the contract between the parties, and (3), by way of supplement, even if it were to be held that the terms of the policy were not clear and precise, the court of appeal was bound to interpret them and could not simply say, without more, that the conditions of the insurer’s promise were not met;

But given first of all that the court of appeal was right to hold that the duty to give good advice is contractual in nature, and secondly that the court was entitled to interpret the terms of the policy, which were ambiguous, as covering only such of the assured’s liabilities to third parties as were delictal in nature;

From which it follows that the application for review is baseless.

For these reasons DISMISSES the application for review of the decision of the Court of Appeal of Colmar rendered on 13 July 1978.

Subsequent Developments

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

Com 25 June 1980 : This solution had already been expressed by the Cour de cassation in a judgment of the 31 January 1973 (Civ 1, Bull no 40). Although it does not do it in a systematic manner, the case law tends to assimilate the precontractual obligation (which is a priori delictual: Com, 11 January 1984, Bull no 16) and the contractual obligation of providing information, considering, particularly so far as concerns contracts of sale, that the first kind of obligation, although contemporary with the formation of the contract, is of a contractual nature, thus permitting avoidance of conflicts of classification (cf Civ 1, 18 July 2000, Bull no 214). The classification of the obligation to give information as delictual is not however systematically excluded, as far as concerns immovable property (Civ 1, 18 April 1989, Bull no 150), insurance (Civ 1, 30 January 2001, Bull no 14) or notarial responsibility. The Cour de cassation, in doing this, in fact shows a concern to unify the regimes of indemnification in relation to the obligation to give information and, besides this, to protect the consumer, thus taking the same perspective as for liability for defective products.

Translation by Raymond Youngs

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