Cour de cassation

The Court:

In view of article 1165 Code civil:

Given that contracts have effect only between the parties to them;

Given that according to the judgment under attack Alhada, having contracted with Besse to erect a dwelling for him, subcontracted the plumbing work to Protois, and that when the plumbing work proved defective more than ten years after completion of the building, Besse sued both Alhada and Protois for the resulting harm;

Given that the Court of Appeal dismissed the claim against Protois, the plumbing sub-contractor, on the ground that when a contractual debtor retains another to perform his obligation, the creditor’s only action against that other is of a contractual nature and therefore subject to any restriction of the creditor’s rights or limitation of the delegated debtor’s undertaking, so that any defence arising under the contract between Besse and the main contractor, including statutory defences such as the ten-year time-bar, could be raised in Besse’s claim against Protois;

But given that in so deciding when there is no contract between the subcontractor and the site-owner, the Court of Appeal violated the text cited;

For these reasons QUASHES the decision below in so far as it dismissed the suit against Protois….

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

Assemblée plénière 12 July 1991: The solution put forward by this judgment has brought an end to a divergence between different chambers of the Cour de cassation, the Assemblée plénière approving here the third civil chamber which considered, on the basis of Article 1165 of the Code civil, that the liability of the sub-contractor towards the site owner could only be delictual. Numerous judgments - taking all chambers together - have later reaffirmed this principle (Civ 1, 23 June 1992, Bull no 195, 7 July 1992, Bull no 221, Civ 3, 28 November 2001, commented on above, and 3 April 2002 - pourvoi no 00-20.748), which seems to be firmly established today.

Translation by Raymond Youngs

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