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Legal News – Liability of sellers and manufacturers – Product suppliers assimilated to builders of work

French Court of Cassation, Third Civil Chamber, 28 February 2018, N°17-15962

In its decision dated 28 February 2018, the Third Civil Chamber of the French Court of Cassation held a simple supplier liable on the basis of builder’s liability under article 1792 et seq. of the French Civil Code.

In the present case, the facts concerned the construction of a slab of an industrial building on a construction site. As cracks begin to appear on the slab, the project owner, also owner of the building, sued the supplier of the concrete. The latter called in guarantee the bricklayer who had made the slab. The judgment showed that the concrete had been ordered directly by the project owner, who was therefore in a direct contractual relationship with the concrete supplier.

The Court considered that the concrete supplier should be assimilated to a builder, as one of its employees was present on the construction site and had given precise instructions and recommendations to the bricklayer, which were the source of the cracks and dispute.

This solution, though rendered under particular circumstances (clearly very important involvement of the supplier in the execution at the worksite and direct contractual relationship between the supplier and the project owner), nevertheless remains innovative.

Usually, the persons who can be considered as builders of a work according to articles 1792 et seq. of the Civil Code are provided by law: These are persons bound to the owner of the work by a contract of hiring of work or a similar contract (Article 1792-1 Civil Code), and possibly, the builder of a work, of a part of a work, or of an element of equipment designed and built to meet precise and predetermined requirements when in working order, who is liable jointly with the hirer of the work. (1792-4 Civil Code).

Simple suppliers of common building materials are usually not considered as builders of a work (although their liability is often based on contractual liability for the breach of an advisory obligation).

The choice of the basis of liability made by the Court in this decision was certainly not without consequences for the supplier of the product. Indeed, it is highly probable that this supplier has not taken out a ten-year liability insurance policy specific to builders’ liability and therefore has not obtained a guarantee from its insurance company.

Under these conditions, suppliers of building materials must remain cautious in the advice they give to their clients in order to avoid being assimilated to builders of a work without benefiting from a corresponding insurance guarantee.

Solène Marais