Note on Cass. com., 8 July 2026, no. 25-11.256, F-B
A professional seller owes a demanding duty to inform and advise. It will be recalled that, in 2022, the Cour de cassation held that the professional seller of a motorhome could not confine itself to reminding its customer of what might have seemed self-evident: « Mind the weight. Every additional accessory reduces the payload ».
For the Cour de cassation, « a professional seller owes, before the sale, a duty to advise which requires it to enquire into the buyer’s needs so as to be in a position to inform him whether the goods offered are suited to the intended use »1. In other words, our professional seller should have enquired into the buyer’s specific needs (here, a family road trip across the American continent) in order to advise him for or against buying the motorhome.
That solution, handed down under the former law of contract, would no doubt bear clarification under the new law, since article 1112-1 of the French Civil Code deals only with information (as opposed to advice) and, above all, draws no distinction according to whether the seller is a professional. Besides, the duty to inform under article 1112-1 is pre-contractual and mandatory. It is not attached to any statutory obligation specific to the contract (unlike former article 1147) or to sale (articles 1602 et seq. of the Civil Code).
By a judgment of 8 July 2026, the Commercial Chamber of the Cour de cassation, presided over by Vincent Vigneau, rules – applying the former law – on the limits of the duty to inform and advise borne by the professional seller.
The facts
In 2014, a company called Le Béton mobile Janky (BMJ) bought a new Liebherr tracked excavator from a company called Soreloc.
The machine failed to perform, the judgment giving no further detail.
BMJ sued Soreloc, its seller, and Liebherr France, the manufacturer, seeking termination of the sale and damages: repayment of the price (EUR 527,600), the cost of repairs (EUR 97,065) and compensation for loss of use. The Commercial Court of Pointe-à-Pitre dismissed its claims on 17 March 2023.
BMJ’s claims were dismissed by the Basse-Terre Court of Appeal on 5 December 2024.
The appellate judgment2 sheds light on the facts of the case. It reveals that the excavator had been acquired as part of a tax-driven investment scheme and, above all, that its breakdowns were caused not by the machine but by the way it was used: BMJ drove it. The manufacturer’s data showed that travelling accounted for 20.7% of operating time, three times the standard for the category, and up to sixteen kilometres covered in three weeks. The court-appointed expert concluded that the excavator was « not suited to operating in the environment for which its owner intended it ». A tracked excavator is built to dig, not to drive.
Should the seller have warned the buyer? The Court of Appeal held that it should not, since the buyer had never expressed any such need: « in the absence of any evidence of a specific request to that effect from BMJ, Soreloc was under no obligation to draw its customer’s attention to the existing limitations as regards travelling, a point which is by its very nature quite secondary ». The contrast with the 2022 judgment is striking: where the seller had to enquire into the needs of a lay buyer, it is here for the professional buyer to state its own.
The Court of Appeal had, moreover, set aside the specialisation test, holding that « BMJ is […] wrong to submit that this exclusion of the duty to inform and advise is confined to the case where seller and buyer share the ‘same specialisation’ ».
The cassation appeal
The buyer therefore appealed to the Cour de cassation on a single ground comprising seven limbs. Six were dismissed without specific reasons, pursuant to article 1014, paragraph 2, of the Code of Civil Procedure3.
The first deserved closer attention. The appeal argued that « a professional seller is released from its duty to inform and advise vis-à-vis a professional buyer only where the latter carries on the same specialisation ».
Now, the appeal contended, seller and buyer were not of the same specialisation: the latter operated a quarry, whereas the former merely sold equipment. It followed, according to the buyer, that the professional seller owed it a duty to inform and advise.
The Basse-Terre Court of Appeal was therefore criticised for having ruled as follows: « by confining the seller’s duty to inform and advise vis-à-vis a professional buyer to the case where the latter’s competence does not give it the means to appreciate the exact scope of the technical characteristics of the equipment purchased, by relying on BMJ’s competence alone and by refusing to take account of the fact that its specialisation differed from that of Soreloc »4.
In other words, the appeal adopted one test, that of the same specialisation, and rejected another, that of competence.
Which was to prevail?
The decision
Dismissing the appeal, the Cour de cassation restates a classic formula, already laid down in judgments handed down in 2014 concerning a forestry harvester5 and in 2017 concerning a construction loader6: « the seller’s duty to inform and advise its customer as to whether the equipment sold is suited to the use for which it is intended exists vis-à-vis a professional buyer only in so far as the latter’s competence does not give it the means to appreciate the exact scope of the technical characteristics of the equipment in question ».
Nihil novi sub sole.
Here, however, lies the novelty: the Commercial Chamber decouples competence from specialisation. Until now, case law had generously extended the benefit of the duty to inform and advise to the « professional of a different specialisation » (see O. Barret and Ph. Brun, Rép. civ. Dalloz, s.v. « Vente : effets », February 2026, no. 732).
In the judgment under review, that position appears to shift, competence alone being enshrined at the expense of specialisation.
For the Court, it matters not that the two contracting parties are of different specialisations. For specialisation is no more than an indication of competence, and it is competence that determines whether the duty to inform and advise serves any purpose.
Now, in the case at hand, the buyer had been operating a quarry for fourteen years and already owned a hydraulic excavator, a Komatsu PC490 assigned to that same quarry. Better still: the seller had framed its offer by comparing the two machines, and had pointed out that the Liebherr was six tonnes heavier.
Accordingly, our buyer was competent, in that it had the « means to appreciate the exact scope of the technical characteristics of the equipment in question », from which it follows that there was no point in the seller providing information and advice about the equipment being bought. Competence is assessed by reference to the technical characteristics of the equipment in question, not in the abstract. Had the thing sold been a printer or a management software package, the outcome would probably have been different.
The Commercial Chamber, faithful to its pragmatic approach, concludes that the Court of Appeal « was not required to enquire whether [the seller’s] specialisation differed from that of Soreloc ».
Thus, as the headnote published on the Cour de cassation’s website puts it, the duty to inform and advise « is not owed to a professional buyer possessing the competence to appreciate the exact scope of the technical characteristics of the equipment, without any need to enquire whether its specialisation is the same as or different from that of the seller ».
Competence 1 – Specialisation 0.
Significance
The Court thus prefers a practical, concrete assessment of actual competence over a more theoretical approach based on identity of specialisation, doubtless more predictable but potentially less just.
The movement is reminiscent of the one begun in relation to the pre-contractual duty to inform under article 1112-1 of the Civil Code, which the Commercial Chamber7, followed by the Third Civil Chamber8, has confined to what is strictly necessary. Information is owed only where it is of use.
Does this sound the death knell for the specialisation test?
Not necessarily. First, as noted above, the judgment concerns only the duty to inform and advise in contracts concluded before the 2016 reform came into force.
Second, the same-specialisation test continues to be applied to the warranty against latent defects. Building on article 1643 of the Civil Code, which says nothing of the buyer’s specialisation, case law holds that « a clause limiting or excluding the warranty against latent defects may be relied upon against a professional buyer of the same specialisation as the party selling the thing to it »9.
There is nothing, however, to prevent one from imagining that the movement will be completed on the ground of the special law of sale, and that the validity of clauses excluding or limiting the statutory warranty against latent defects will come to be assessed by reference to the buyer’s competence rather than its specialisation.
Takeaways
- The seller’s duty to inform and advise as to whether equipment is suited to its intended use is owed to a professional buyer only where the latter’s competence does not enable it to appreciate the exact scope of the equipment’s technical characteristics.
- Whether seller and buyer share the same specialisation is irrelevant; what matters is competence.
- The solution applies to the duty to advise. It does not extend to the enforceability of clauses limiting or excluding the warranty against latent defects, where the same-specialisation test remains, for the time being.
Notes
- Cass. civ. 1re, 11 May 2022, no. 20-22.210; L. Thibierge, « Surcharge pondérale et obligation de conseil : quand le road trip fait long feu », RDC 2022, no. 3, p. 38. ↑
- CA Basse-Terre, 2nd Civil Chamber, 5 December 2024, no. 23/00420. ↑
- Article 1014, paragraph 2, of the Code of Civil Procedure: « Any formation may also decide not to give specific reasons in answer to one or more grounds that are inadmissible or manifestly not of a nature to lead to quashing ». ↑
- Emphasis added. ↑
- Cass. com., 14 January 2014, no. 12-26.109. ↑
- Cass. com., 22 March 2017, no. 15-16.315. ↑
- Cass. com., 14 May 2025, no. 23-17.948. ↑
- Cass. civ. 3e, 27 November 2025, no. 23-18.439. ↑
- Cass. civ. 3e, 4 March 2021, no. 20-10.657. ↑
