In French law, the rule of principle is full compensation for loss, all loss and nothing but loss.
Jean Carbonnier sublimated this principle with his poetic phrase: “we must repair the harm, make it seem as if it had only been a dream”.
Nevertheless, the nature of this reparation is still open to question and varies greatly from one body of law to another. It depends on the specific issues at stake in each case.
In a ruling handed down on 16 January 2025, the French Court of Cassation reiterated that the client cannot be forced to make reparation in kind, after also pointing out that the unfit-for-purpose nature of the work must be assessed according to the contractual use for which it was intended (3e Civ., 16 January 2025, appeal no. 23-17.265, published in the bulletin).
→ With regard to the assessment of the ten-year nature of the defects, the Court of Appeal noted that the condensation caused by the absence of a screen under the roof did not in itself render the building unfit for its intended use, in accordance with article 1792 of the Civil Code.
Reversing this provision of the judgment, the Court of Cassation reaffirmed that “the unsuitability of the work for its intended purpose is assessed by reference to its intended purpose arising from its use, as it results from the nature of the premises or the agreement between the parties”.
The lower courts must therefore analyse the disorders in concrete terms, taking into account the use of the building in order to assess their ten-year nature. In this case, the building was used for grain storage, and condensation problems therefore presented a significant risk of decay.
→ With regard to the principle of reparation, the Court of Cassation also overturned the Court of Appeal’s ruling, pointing out that the client cannot be forced to make reparation in kind, and retains the right to refuse the builder’s methods of reparation.