Given that according to the decision under attack (Paris, 31 January 2000) the SFRM company, part of the Alusuisse group and insured by Albingia under a building damage policy, was having the roof of its factory replaced and its structure strengthened by Heper Ltd., its main contractor, insured by GFA, now AM Prudence; that Heper subcontracted the replacement of the roof and the strengthening of the structure to Normacadre, insured by SMABTP, and that Normacadre obtained the steel girders from Les Forges d’Haironville (now Haironville Ltd.) which manufactured them; that when holes and corrosion developed in the girders, the damage was made good by Albingia which now, exercising by subrogation the rights of the site-owner SFRM, claimed reimbursement for the sums it had spent on those repairs;

Given that Haironville criticises the judgment below for holding it jointly and severally liable along with the main contractor, the subcontractor and their insurers for the sums claimed by Albingia, on the grounds (1) that since the claim of the site-owner against the manufacturer of the steel girders was contractual in nature, its insurer, subrogated to that claim, cannot sue the manufacturer in tort, and that the court of appeal which held to the contrary made an erroneous application of article 2270-1 Code civil; (2) that the corrosion and condensation which led to the perforation of the steel girders was due to a vice caché, so that in failing to inquire whether the claim against the manufacturer was brought within a short period, the court of appeal gave no legal basis for its decision; and (3) that the duty to inform and advise about the qualities of the product, here the metal roofing material, is owed by the manufacturer only to lay customers, whereas here the site-owner was a specialist in the refining of aluminium and formed part of a group which itself produced roofing materials in aluminium, so that in failing to inquire whether the customer was not fully aware not only of the corrosion and condensation generated by its industrial operations but also of the different technical qualities of the various metallic roofing materials the court of appeal failed to give any legal basis for its decision under articles 1135 and 1147 Code civil;

But given, first, that having correctly stated that the liability of Normacadre, the sub-contractor, towards the site-owner was delictal in nature, the court below was right to hold that Haironville’s liability to the site-owner, as supplier to the subcontractor, was also delictal;

And given, secondly, that having held that Haironville was in breach of its obligation to give advice and information about the steel components of the roofing which it was supplying, in that the questionnaire which the customer received and completed should have caused it to issue cautions about using steel roofing material, given its susceptibility to corrosion, or at least to do further and more detailed research into the constraining features of the factory site, the court of appeal, which made the inquiries allegedly omitted and did not base its decision on vice caché, was within its powers to hold that it was not shown that the site-owner was known to be knowledgeable about the construction of industrial buildings or had involved itself in the execution of the work, and so gave a legal basis for its decision on this point;

On the other ground of the application for review:

Given that the court below held, as was within its powers, that Heper Ltd. had explicitly stated in writing that it was essential that the load-bearing features designed to make the building stable should carry a ten-year guarantee, that the order form expressly stated that the work on the roof should be subject to the ten-year limitation period, that the site-owner never clearly expressed any intention of releasing those doing the work from the prescriptive period laid down by articles 1792 ff. Code civil, that it was clear from the documents submitted that both the site-owner and the main contractor regarded the principal purpose of the work as being to counter the serious risk presented by the age and poor condition of the joints and metal roofing, and that it was implausible to allege that the site-owner would have opted for a cheap and risky solution when the remedy proposed was not much more expensive, or that it would deliberately have chosen a short-term remedy when it was mindful of the criminal liability of managers in the event the building collapsed, was keen to reactivate its productive business and ready to invest heavily in the machinery which was to be placed under the metal roofing;

From which it follows that the ground of complaint is baseless;

For these reasons DISMISSES the applications for review.

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

Civ 3, 28 November 2001: case law maintained. Cf Civ 3 April 2002 (pourvoi no 00-20.748): "the liability of the sub-contractor vis-à-vis the site owner is necessarily delictual in nature", which is the classical solution since the judgment of the assemblée pléniére of the 12 July 1991, affirming the absence of a contractual relationship between the sub-contractor and the site owner. Although the court has not expressed itself since on the nature of the liability of the sub-contractor's supplier towards the site owner, a change nevertheless seems unlikely, since the delictual nature of the sub-contractor's liability towards the site owner is clearly affirmed here. This is so even though a judgment by the Paris court of appeal of the 10 January 2002 seemed to recognise (in similar circumstances, although implicitly) the contractual character of the liability towards the site owner of the supplier of a product to a sub-contractor.

Translation by Raymond Youngs

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