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Liability for ProductsEnglish Law, French Law, and European Harmonization$
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Simon Whittaker

Print publication date: 2005

Print ISBN-13: 9780198256137

Published to Oxford Scholarship Online: March 2012

DOI: 10.1093/acprof:oso/9780198256137.001.0001

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Droit Privé: The Law of Sale

Droit Privé: The Law of Sale

Chapter:
(p.63) 4 Droit Privé: The Law of Sale
Source:
Liability for Products
Author(s):

SIMON WHITTAKER

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198256137.003.0004

Even before implementation of the Consumer Guarantees Directive, French law possessed six distinct conceptual bases for finding a seller liable to his buyer in respect of failures of safety, quality, or usefulness in the property sold, four of which are contractual, one delictual, and one either contractual or delictual depending on its context. Each of the conceptual bases has a different or somewhat different focus: the quality of the consent of the buyer; the wrongful conduct of the seller; the defectiveness of the property or its implications for safety. Each of them possesses its own conditions of application and effects which make them sometimes more, sometimes less attractive to a buyer, but over the last 40 years or so French courts have been torn between allowing their development and relationship to become a function of these practical features (with particular emphasis on differences in the periods within which claims must be brought) and following juristic views of the conceptual correctness of one or other position. This is why much of the jurisprudence in this area has long looked unsettled, if not actually contradictory: judges apply the law, which yields the outcome that they consider ‘right’ for reasons which do not appear on the face of the legal reasoning which they use. While the position became somewhat more settled after 1993 when the Cour de cassation ruled that latent defects which render property unfit for its normal purpose give rise only to liability under the garantie légale, it became controversial again in the French debates on how properly to implement the Consumer Guarantees Directive. This chapter looks first at the obligations d’information and then at the garantie légale and its rivals.

Keywords:   French law, Consumer Guarantees, product liability, obligations d’information, garantie légale, sellers, buyer, delictual, liability law

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