A Comparative Analysis of Liability Regimes for Product Defects

A new car that breaks down, a smartphone battery that explodes, a piece of furniture that falls over in a turnkey apartment… when these defects cause harm, what steps should you take to seek compensation, and which entities are responsible for compensating you?

To take the most appropriate action to obtain the compensation you seek, it is essential to understand the difference between the warranty against hidden defects, the liability for non-conforming delivery, and the liability for defective products.

In Japan, the April 2020 reform of the Civil Code resulted in the renaming of the “warranty against hidden defects” to “liability for failure to deliver in accordance with the contract.” However, in France, the warranty against hidden defects—which is a special statutory warranty—and the obligation to deliver in conformity—which is based on the provisions of general contract law—fall under entirely distinct legal frameworks.

“Specialia generalibus derogant”: Special Laws Take Precedence Over General Laws

Among these three regimes, the warranty against hidden defects (Articles 1641 et seq. of the Civil Code) and liability for defective products (Articles 1245 et seq. of the Civil Code)—which differ in their legal basis and scope of application—may be combined when the non-apparent defect affecting the sold product also constitutes a safety defect.

Conversely, it is not possible to combine a claim under the warranty against latent defects with a claim regarding non-conforming delivery pursuant to the principle of “specialia generalibus derogant.” When the defect for which the plaintiff seeks compensation on the basis of the obligation to deliver conforming goods falls within the scope of the warranty against hidden defects, the claim is then dismissed (Court of Cassation, Civil Division, Third Civil Chamber, January 18, 2023, No. 21-22.543 (concerning a pest infestation that destroyed the main structural elements of the roof and floor joists, posing a risk of building collapse).

These three legal regimes can be summarized as follows:

Consequently, the fact that the item does not conform to the specifications established by the parties constitutes a breach of the obligation to deliver, whereas the item’s unsuitability for its normal use falls under the warranty against hidden defects. Understanding this distinction is particularly important due to the relatively short statute of limitations applicable to the warranty against hidden defects, as opposed to that applicable to contractual non-performance under general law.

1. Warranty Against Hidden Defects

Conditions for Enforcement

To bring a claim under the warranty against hidden defects against the seller, the buyer must prove that the hidden defect is (i) unknown to the buyer at the time of sale, (ii) inherent in the item sold, (iii) serious, (iv) pre-existing at the time of sale, and (v) renders the affected item unfit for its intended purpose.

Statute of Limitations

The claim must be filed within 2 years from the date the buyer discovers the defect, but may not exceed a period of 20 years from the date of sale (Article 1648 of the Civil Code).

It should be noted that, when defects that render the item unfit for its normal purpose constitute defects within the meaning of Article 1641 of the Civil Code, the buyer must bring a claim within two years from the discovery of the defect based exclusively on that provision. After this period has elapsed, the buyer cannot circumvent the statute of limitations by bringing a claim based on nonconforming delivery (Court of Cassation, 1st Civil Chamber, October 27, 1993, Appeal No. 91-21.416 (electric water heater); 3rd Civil Chamber, February 14, 1996, No. 93-21.773 (curb stones)).

Commencement of the Statute of Limitations in the Event of a Judicial Expert Appraisal

In the event that the latent defect involves a particularly technical nature, it is recommended to request a judicial expert appraisal from the President of the competent judicial court, pursuant to Article 145 of the Code of Civil Procedure.
Service of the summons for an interim expert assessment on the seller suspends the two-year statute of limitations.

In a case involving Toyota, the Court of Cassation ruled that the buyer’s discovery of the defect—which marks the starting point of the two-year statute of limitations—is the date the expert report was filed.

In this case (Court of Cassation, 1st Civil Chamber, September 25, 2024, No. 23-11.482), the purchaser of a Toyota vehicle sued Toyota France under the warranty against hidden defects due to malfunctions observed in the vehicle. Prior to filing the suit on the merits, the buyer had requested a court-appointed expert assessment, and the expert determined that the cause of the breakdown was spare parts supplied by Toyota France to the repair shop in February 2011. Toyota France moved to have the action dismissed as time-barred, arguing that the “five-year” statute of limitations expired in February 2016.

The Court of Cassation, like the Court of Appeals, held that the two-year statute of limitations provided for in Article 1648 of the Civil Code began on the date the expert report was filed—November 18, 2016—so that the action filed on December 18, 2017, less than two years after the defect was discovered and less than twenty years after the sale of the spare parts, is admissible.

The same ruling was adopted by the Third Civil Chamber of the Court of Cassation in its decision of January 8, 2026 (No. 24-12.714) concerning defects affecting a residential home.

Effects

The warranty against hidden defects gives the buyer the option to either rescind the sale or seek a price reduction.

Furthermore, the buyer is entitled to claim damages if the seller was aware of the defects affecting the property, in accordance with Article 1645 of the Civil Code. Such knowledge is presumed to have been known to the professional seller (irrefutable presumption), and the seller cannot avoid liability by demonstrating that he was not aware of the defects or by invoking a contractual clause limiting or excluding the warranty. Consequently, the plaintiff may always seek damages in an action for hidden defects against a professional seller.
A claim for damages arising from a latent defect is subject to the same two-year statute of limitations set forth in Article 1648 of the Civil Code (Court of Cassation, Third Civil Chamber, February 19, 2026, No. 23-22.295).

Warranty against hidden defects in the sale of a business

In the sale of a business, the seller’s warranty against hidden defects applies in the event of non-compliance with safety standards for the facilities (Court of Cassation, Commercial Chamber, October 8, 1991, No. 89-17.533) or for the building in which the business is operated (Court of Cassation, Commercial Chamber, February 7, 1995, No. 93-12.940), but not in the event of inaccuracy in the revenue figure stated by the seller in the deed of sale of the business, as this did not affect the use of the business (Court of Cassation, Commercial Chamber, January 11, 2017, No. 15-22.382)

In the event of inaccuracies in the statements contained in the deed of sale, the purchaser of the business must act pursuant to Article L141-3 of the Commercial Code within one year from the date of taking possession (Article L141-4 of the Commercial Code) to request rescission of the sale or a reduction in the price. If the seller acted in bad faith, the purchaser of the business may also seek damages.

2. Liability for Defective Products

Unlike the warranty against hidden defects, which covers defects inherent in the item sold, liability for defective products applies when a product does not provide the safety that can reasonably be expected.

The current framework for liability for defective products (Article 1245 of the Civil Code) stems from the Law of May 19, 1998, which transposed Directive 85/374/EEC of July 25, 1985, on the approximation of the laws of the Member States regarding liability for defective products.

This directive has been replaced by a new Directive 2024/2853 of the European Parliament and of the Council of October 23, 2024, on liability for defective products, which will be transposed into French law by December 9, 2026.

Conditions for Enforcement

To bring a claim for liability for defective products against the producer, the victim must prove (i) damage, (ii) a failure of the product to meet its expected safety standards, and (iii) a causal link between the damage and the defect (Article 1245-8 of the Civil Code).

Similar to the liability of builders provided for in Articles 1792 et seq. of the Civil Code (=> see article), liability for defective products arises automatically once these elements are established, without the victim being required to prove the manufacturer’s fault.

Regarding the concept of the level of safety reasonably expected from the product, Article 1245-3 of the Civil Code provides that “In assessing the level of safety that can reasonably be expected, all circumstances must be taken into account, in particular the product’s presentation, the use that can reasonably be expected of it, and the time it was placed on the market.”

The 2024 Directive expanded the criteria for assessing a safety defect in Article 7 by adding new elements in light of the development of AI, such as the product’s ability to continue learning or to acquire new characteristics after it is placed on the market (i.e., products incorporating an AI solution), or the reasonably foreseeable effect on the product of other products used in conjunction with it, or the applicable cybersecurity requirements.

This directive also broadens the concept of the producer liable for defective products to ensure compensation for victims. Thus, Article 8(3) of the Directive provides that, where the victim is unable to identify the manufacturer or importer of the defective product, the victim may bring a claim against a distributor of the product or an online platform provider selling the defective product.

Relief from the Burden of Proof—Presumptive Evidence

With regard to the burden of proof—which rests with the victim—to demonstrate the defect in the product and the causal link between the defect and the damage suffered, the CJEU established the principle in its June 21, 2017, judgment (C-621/15, N. W. et al. v. Sanofi Pasteur MSD SNC et al.). In this judgment, rendered in response to a preliminary ruling requested by the French Court of Cassation, the CJEU held that the victim may prove the defective nature of a Sanofi hepatitis B vaccine and the causal link to multiple sclerosis through serious, specific, and consistent evidence (in this case, the victim’s previously excellent state of health, the absence of a family history, and the close temporal link between vaccination and the onset of the disease), without the lack of scientific consensus being used against them.

The 2024 Directive enshrined the admissibility of presumptive evidence in Article 10 and, in order to ease the burden of proof on the victim, established a new measure: the judicial order for “disclosure” (Article 9 of the Directive). According to this provision, when the victim establishes facts that make their claim for compensation “plausible,” they may ask the judge to order the defendant to disclose the relevant evidence in their possession. If the request for disclosure of evidence is granted in these proceedings and the defendant fails to comply with the court’s order, the product is presumed to be defective in accordance with Article 10(2)(a) of the Directive.

Statutes of Limitations and Barriers to Action

To hold the producer liable, a claim must be filed within 3 years from the date on which the plaintiff became aware or should have become aware of the damage, the defect, and the identity of the producer (Article 1245-16 of the Civil Code).

Furthermore, the victim may no longer bring a claim against the producer after 10 years from the date the product was placed on the market (Article 1245-15 of the Civil Code).

Once one of these time limits has expired, the victim must bring a claim against the producer based on tort liability under general law (Article 1240 of the Civil Code), by proving the manufacturer’s negligence.
The general statute of limitations for personal injury claims is 10 years from the date the initial or aggravated injury became permanent (Article 2226 of the Civil Code).

Statute of limitations for liability claims arising from defective products that have caused a progressive disease (CJEU, March 26, 2026, Case C-338/24, Sanofi Pasteur SA)

In this regard, the Court of Cassation previously held, in a case concerning damages suffered by individuals who developed progressive conditions (multiple sclerosis), after being vaccinated against hepatitis B, the principle that, in cases of personal injury, the date on which the victim becomes aware of the injury must be interpreted as the date of stabilization, which merely enables the plaintiff to assess the extent of their harm. In the event of a progressive condition that makes it impossible to determine a date of stabilization, the statute of limitations under Article 1245-16 of the Civil Code does not begin to run (Court of Cassation, Civil Division, 1st Civil Chamber, July 5, 2023, No. 22-18.914, Sanofi Pasteur case).

This case law established by the Court of Cassation, which was highly favorable to the victim, was overturned by the CJEU in its judgment of March 26, 2026 (Case C-338/24). In this judgment, issued following a referral by the Rouen Court of Appeals—the court of first instance following cassation in Case No. 22-18.914—of preliminary questions, the CJEU held that the statutes of limitations and preclusion periods stipulated by the Directive of July 25, 1985, must be strictly applied, even in the case of a progressive medical condition. Thus, the three-year statute of limitations begins to run as soon as the victim becomes aware of the certain harm, the defect, and the producer, without waiting for the date on which the harm becomes permanent, even in the case of a progressive medical condition.

The 2024 Directive did not modify the limitation and preclusion periods set forth in the Directive of July 25, 1985, but established a new 25-year preclusion period in cases of slowly developing symptoms caused by a defective product (Article 17).

3. Obligation of Conformity

Finally, the obligation of conformity (Articles 1604 et seq. of the Civil Code) allows the buyer to request replacement of the goods, a price reduction, or rescission of the sale, as well as damages, based on contractual liability under general law.

Conditions for Enforcement and Statute of Limitations

To hold the seller liable, the buyer must establish that the item sold does not conform to the contractual specifications—that is, that there is a discrepancy in the nature, quality, or quantity of the item sold compared to what was stipulated in the contract.

The statute of limitations for a claim based on a failure to deliver is five years from the day the buyer became aware of, or should have become aware of, the facts enabling them to bring the claim (Article 2224 of the Civil Code).

As previously mentioned, when the defect affecting the goods sold constitutes both a lack of conformity and a latent defect, the buyer may only bring a claim under the warranty against latent defects; the buyer cannot circumvent the two-year statute of limitations for the warranty against latent defects by bringing a claim based on non-conforming delivery.

For sales between a professional seller and a non-professional buyer, there is a special statutory warranty of conformity provided for in Articles L217-3 et seq. of the Consumer Code.

To enforce this warranty, the buyer benefits from a presumption that defects existed prior to delivery for a period of 2 years from the date of delivery (or one year if the item is used). This means that the buyer is not required to prove that the defect was present at the time of purchase in order to request that the item be brought into conformity (through repair or replacement) or, where applicable, a price reduction or rescission of the sale.