Given that according to the decision under attack (Versailles, 3 March 1986) Mme Marouze, insured by GAMF, bought from M. Sirejols, who was in the business of selling radios and television sets, a television set which he had purchased from the manufacturer, Téléavia, that the set exploded and caused damage to Mme Marouze’s apartment, and that GAMF claimed an indemnity therefor from Téléavia and also from Radio-Val, successor to M. Sirejols;

Given that the judgment below is criticised for holding that the manufacturer of a television set retains the garde of its structure even seven years after giving up ownership regardless of whether it had any power to monitor or control it, and that it had no basis in law for holding Téléavia jointly and severally liable with M. Sirejols to make a payment to GAMF;

But given that the court of appeal, adopting the reasoning below, held that the item when manufactured was affected with a vice caché and that this by itself justified its decision in relation to article 1641 Code civil, which alone is applicable on these facts;

On the second ground of application for review:

Given that the decision below is criticised for having inferred from the mere fact that the defect was internal to the item that the vice existed before it was sold, without inquiring what particular facts led to this conclusion, the court failed to give a legal basis for its decision under article 1641 Code civil;

But given that the judgment states that according to the expert’s report the accident was due to a vice caché within the television set and that Radio-Val had nothing to do with the set until it caught fire after years of functioning normally;

For these reasons DISMISSES the application for review.

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

Civ 2, 30 November 1988 : Case law, when it has to determine liability in respect of a thing, must make what is often a sensitive choice between the owner and the manufacturer of the thing which has caused harm. The criterion which is generally accepted to make this determination is the reality of control of the thing. In consequence, the custodianship of a television set which has imploded theoretically falls to its owner and not its manufacturer, except if, as in this case, the damage is due to a latent defect (vice cache): consequently the manufacturer is supposed to have retained custodianship of the item, and the purchaser - indeed, as in this case, the sub-purchaser - could not be held to be liable for the damage caused by the imploding of this item "because of the existence of the defect prior to the sale". Although the Cour de cassation has not since had to reach a decision on a similar case, such a solution seems nevertheless to be accepted by legal writers, who see it as a solution which is favourable to the buyer.

Translation by Raymond Youngs

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