Starting point of the five-year prescription applicable to the legal guarantee against latent defects: the pavement in the pond thrown by the Commercial Court of Paris

Actions between traders are subject to the five-year prescription of Article L.110-4 of the Commercial Code, according to which "the obligations arising from their trade between a trader or between a trader and a non-trader are prescribed by five years if they are not subject to shorter special prescriptions .

Despite the reservation relating to "shorter special prescriptions" , it is accepted that the legal guarantee against latent defects is subject to a double prescription: the buyer's action must be brought within two years of the discovery of the latent defect. , according to Article 1648 of the Civil Code, and within the 5-year period of the aforementioned Article L.110-4.

Hence the following question: what is the starting point of this five-year prescription?

Seemingly simple, the question nevertheless receives contradictory answers in doctrine and case law.

For those who consider that in terms of trade speed should be favored, the starting point should be set at the date on which the sales contract becomes perfect, at the risk of depriving the buyer of any guarantee when the latent defect is discovered more than five years later.

For others, the starting point should be delayed until the date on which the guarantee can actually be exercised, for example until the date of first registration when the sale relates to a vehicle.

The question of the starting point of the prescription finds a particular echo in the presence of contracts in which the delivery is "deferred", sometimes for several years, because the thing sold is a "complex" good.

In these hypotheses, it happens that the buyer is not given possession of the thing he has acquired until years after the signing of the contract and that it takes several more for the hidden defect to be revealed.

• If the starting point of the prescription is the date of signature of the sales contract, the buyer risks being deprived of any possibility of acting on the ground of the legal guarantee against latent defects.
• If, on the contrary, the starting point is delayed until the date on which the purchaser was able to actually experience the operation of the thing, this same guarantee may be exercised.

This dilemma was recently submitted to the Paris Commercial Court in a case involving the supply of wind turbines, the blades of which had proved to be defective more than five years after the signing of the supply contracts but less than five years after that of their acceptance and commissioning.

By judgment of March 5, 2021, the consular judges retained "as the start date of the 5-year period provided for in Article L.110-4 of the Commercial Code, the date of receipt" on the grounds that in the presence of a "complex" machine such as a wind turbine "neither the date of signature of the contract, nor the date of delivery on site of the sub-assemblies before assembly on site can be retained" because, otherwise, that "would be tantamount to depriving the purchaser of a significant part of the period during which he can exercise recourse against his supplier since, until the day of receipt, he cannot yet observe the proper functioning of the purchased machine" .

It is now the turn of the Paris Court of Appeal to take up the matter, before, perhaps, the Court of Cassation is itself seized in order to confirm or invalidate the interpretation which comes to be made of article L.110-4 of the commercial code.