Case:
Bull. Civ. I, no. 201, p. 132 Case Houziaux-Verkaemer v. Société Zeebrugge
Date:
11 June 1991
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

Cour de Cassation:Given that Zeebrugge Caravans, a Belgian company, obtained from Aline Industrial, the English manfacturer of mobile homes, the right to sell such homes in Belgium and Northern France and ceded to the French company Mondial Caravaning the exclusive right to sell them in the Departments of Nord and Pas-de-Calais; that on 2 November Mondial Caravaning delivered a mobile home to M. and Mme Houziaux-Verkaemer, that their corpses were discovered two days later therein, that the local doctor diagnosed death by carbon monoxide poisoning and an expert attributed the escape of the gas to the faulty design the propane gas heater and inadequate ventilation; that in the decision under attack Zeebrugge Caravans and Mondial Caravaning were held jointly liable for the harm suffered by the victims, with various sums to be paid to their heirs, whose claim for the rescission of the sale of the caravan it dismissed on the ground that the claim had not been raised in the short period prescribed by article 1648 Code civil; Zeebrugge Caravans appeals and there is a cross-appeal;

On the first limb of the first ground of the appeal by Zeebrugge Caravans:

Given that Zeebrugge Caravans criticises the judgment below which held it contractually liable to the husband and wife whereas, according to the appellant, any action in damages based on a defect in the item sold is subject to the rules relating to latent defects (vices cachés), in that, having held that the action so based must fail because it was not brought within the short period prescribed by article 1548 Code civil, the court nevertheless held Zeebrugge Caravans liable for the harmful consequences of the defect in the thing sold and so failed to draw the proper legal conclusions from its own findings, as regards articles 1645 and 1648 Code civil;

But given that a seller may be held liable for breach of his duty of safety, namely to deliver only products free from fault or defect in manufacturing which could endanger person or property, and that such an action is not subject to the short period within which a claim must be brought under article 1648 Code civil, it was perfectly consistent for the court of appeal to grant the claim by M. and Mme Houziaux-Verkaemer for damages while at the same time dismissing the claim for rescission of the contract of sale, brought under the regime of the seller’s guarantee against latent defects;

From which it follows that this ground of appeal cannot be accepted;

For these reasons:

DISMISSES the appeal and the cross-appeal.

Subsequent Developments

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

Civ 1, 11 June 1991: Two judgments given later confirm this solution: Civ 1, 27 January 1993 (Bull no 44) and 29 May 2001 (pourvoi no 99-18.960), but they are nevertheless criticised by a school of legal writers. In fact this solution marks the liberation of the obligation of safety from the guarantee against hidden defects. This obligation of safety - from now on autonomous - does not obey the rules of the guarantee against hidden defects (and, consequently, the civil liability action is not subject to the short time limit of article 1648 of the Code civil) but to the rules of the droit commun of contractual liability.

Translation by Raymond Youngs