Hidden defect, fraud or non-conforming delivery: what are the differences?

Three legal grounds, three different logics

The hidden defects warranty (Article 1641 of the French Civil Code) remedies a defect in use: the property delivered matches the contract, but a hidden flaw makes it unfit for its purpose. Fraud (Article 1137 of the French Civil Code) sanctions a defect in consent: schemes, lies or the intentional concealment of decisive information deceived the buyer. The obligation of conforming delivery (Article 1604 of the French Civil Code) requires the seller to deliver a property that matches the contractual terms: what was promised must be delivered.

These three actions follow distinct deadlines and sanctions. The hidden defects claim targets a hidden, pre-existing and serious flaw; it must be brought within two years of discovery (Article 1648), within a twenty-year long-stop, and leads to rescission or a price reduction, plus damages if the seller acted in bad faith; an exclusion clause is effective if the seller is a private individual in good faith. The fraud claim (Articles 1137 and 1130 of the French Civil Code) targets the seller's intentional deception; it must be brought within five years of discovering the fraud (Articles 1144 and 2224) and leads to annulment of the sale plus damages; no clause can cover fraud. The non-conformity claim (Article 1604 of the French Civil Code) targets a property that differs from the contract's terms; it is subject to the five-year period of Article 2224 and leads to specific performance, termination or damages; an exclusion clause has no effect on the obligation to deliver what was promised.

The non-accumulation principle: the hidden defect is an exclusive ground

Under settled case law of the French Court of Cassation, where the flaw invoked makes the thing unfit for its purpose, the hidden defects warranty is the exclusive ground of the claim: the buyer cannot reframe it as a non-conforming delivery in order to escape the two-year period of Article 1648 of the French Civil Code.

By contrast, the action for annulment on the ground of fraud retains its autonomy: it rests on the fairness of consent, not on the condition of the thing, and can therefore be brought even where the flaw would also qualify as a hidden defect.

Which strategy to choose in practice

Fraud is the most protective route when there is proof of intentional concealment: it neutralises the exclusion clause, opens the way to annulment and damages, and benefits from a five-year period running from discovery (Articles 1144 and 2224 of the French Civil Code). Its limit lies in the evidence: the intent to deceive must be demonstrated.

Non-conforming delivery is the right ground when the property delivered differs from what the contract described: an advertised outbuilding that does not exist, a promised fixture that is missing. Floor area in a co-owned building follows its own regime: if the actual area is more than one twentieth smaller than the area stated in the deed, the buyer may claim a price reduction within one year of the notarial deed (Article 46 of French Law no. 65-557 of 10 July 1965, as introduced by the Carrez law no. 96-1107 of 18 December 1996).

Nothing prevents relying on several grounds in a single writ, as principal and alternative claims: this is in fact common practice where the classification is debatable.