Court of Cassation, Commercial Chamber 23 January 1990 Judgement no. 85. Dismissal Application for Review no 88-10.478
23 January 1990
Translated by:
Mr. Trevor Brown and Miss Ann Yazikov.
Professor B. S. Markesinis

THE COURT, constituted as provided in Article L. 131-6, para. 2, of the Code relating to the Organisation of the Courts, at its public hearing of 12 December 1989

Concerning the only ground, with its five limbs:

Given that (1) according to the judgement under attack (Toulouse, 12 November 1987), on 2 January 1986 in the Department of Bas Rhin, the manager of Trans Europe Voyages, a corporation, took possession, “after satisfactory trial”, of a coach sold by Cars, a corporation, pursuant to an order signed on 6 August 1985, and drove it into the Department of Tarn-et-Garonne; (2)the order gave a price of 142,330 francs for “a vehicle repainted white and checked mechanically, sold “as is”, registered, and ready to take the road, without warranty or recourse against the seller”, whereas initially the price asked for was 160 110 francs with a motor of 265 horsepower redone to an agreed standard; ( 3) after the payment of an instalment, three bills of exchange for a total amount of 120,000 francs were to be paid on 25 January, 25 February and 25 March 1986;

Given that (1) Trans Europe Voyages criticises the judgement below for having admitted the principal claim for the payment of the balance of the price after having dismissed its counterclaim for the rescission of the sale and reimbursement of the amount paid on the basis of lack of conformity of the object sold while, according to the application for review, (a) in a contract of sale, clauses excluding warranties are valid only between professionals in the same specialist area; (b) in limiting itself to a finding that the purchaser was a professional in the transport business without making it clear whether he possessed, like the seller, a specialist in the second hand vehicle business, a professional qualification which would allow it to be presumed that he had a real ability to check the soundness of the coach being sold, the court of appeal has not given good reasons for its decision in the light of Articles 1643 and 1645 of the Civil Code; (c) a clause having as its object or result to reduce the right of redress of a non-professional person or consumer is prohibited as abusive in the case of breach by the professional of any of his obligations; (d) in failing to check that the appreciation of the mechanical soundness of a coach could be beyond the professional competence of the transportation businessman, who, from this point of view, was in the same state of ignorance as any other consumer, so that it was clear that this clause excluding warranties and redress was abusive, the court of appeal also failed to give legal reasons for its decision in the light of Article 35 of the Law of 10 January 1978 and Article 32 of the Decree of 24 March 1978; (e) exclusion clauses have no effect where there is gross negligence (“faute lourde”); (f) by failing to enquire, as the purchaser invited it to do, whether the seller had committed gross negligence in delivering in bad faith a vehicle which he knew he had not serviced, the court of appeal here again deprived its decision of any legal basis in the light of Article 1150 of the Civil Code; (g) in a contract of sale, as in a construction contract unconditional acceptance covers only apparent defects; (h) in finding that the purchaser must be presumed to have accepted “as is” the thing being delivered, and, therefore, to have waived his common law action for rescission, without stating clearly that the defect alleged (absence of mechanical servicing) was apparent or easily perceptible upon taking possession of the vehicle, the court of appeal has not given legal basis to its decision in the light of Articles 1604 and 1184 of the Civil Code; (i) an action for rescission for non-conformity is not subject to the short limitation period of an action for hidden defects; (j) in criticising Trans Europe Voyages for having delayed bringing its action, the court of appeal has breached Articles 1147 and 1184 of the Civil Code,

But given, firstly, that there is no indication, either in the judgement or in the pleadings of Trans Europe Voyages that the validity of the exclusion clause had been challenged or gross negligence alleged against Cars;

And given, secondly, that (1) the court of appeal, contrary to the allegation of the application for review, did not place itself only at the time of the taking of possession of the vehicle, but took into account of the period of several months which elapsed and of repairs carried out a month after the delivery without the seller being informed; and (2) after underlining the fact that the purchaser had been a professional of the transport business for several years, the court of appeal found that the allegation of non-conformity was not established and has thus given legal basis to its decision in the part criticised;

From which it follows that the ground, which cannot be heard in its first three limbs because it is new and is a mixture of fact and law, is not well founded as to the rest;

DISMISSES the application for review

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