The recourse action of the final seller against its supplier in the international context
The French Cour de cassation recently ruled on the application of the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (hereinafter “CISG”) to the recourse action brought by the final seller against the original supplier (Com., February 3, 2021, n°19-13.260).
In this case, an Italian company sold tiles to a French company, which resold them to a French consumer who sued the final seller for a lack of conformity. The final seller brought a recourse action against the original supplier on the ground of the provisions of the Italian Consumer Code, adopted in application of Directive 1999/44/EC of May 25, 1999 on certain aspects of the sale of consumer goods and associated guarantees, which has been deemed admissible by the trial judges. The original supplier appealed to the Cour de cassation, challenging the admissibility of the recourse action and invoking the application of article 39 of the CISG, which provides that the buyer is deprived of the right to invoke a lack of conformity against the original seller if he does not denounce it at the latest within a period of two years from the date on which the goods were actually delivered to him.
On the admissibility of the recourse action, the Cour de cassation applied Directive 1999/44/EC, which provides that when the final seller is liable to the consumer for a lack of conformity resulting from an act or omission of the producer, a previous seller in the same contractual chain or any other intermediary, the final seller has the right to bring a claim against the person or persons liable in the contractual chain. In this respect, the Cour de cassation confirmed that the trial judges have verified that the Italian law applicable in this case allows the final seller to take action against any liable party belonging to the same distribution chain as him.
On the application of the CISG (and in particular article 39) to the recourse action, the Court considered that the right to invoke a lack of conformity was lost in this case because the final seller had denounced the defect to his supplier more than two years after delivery of the goods.
In view of this case law, it is therefore necessary to invoke a lack of conformity of a product within two years of delivery, regardless of the action taken by the consumer against the final seller.