The Court of Cassation, through its ruling on November 23, 2023, emphatically reaffirms that the recourse action of a builder, whether a project manager or subcontractor, is subject to a five-year prescription period. This period starts running from the day the builder became aware, or should have been aware, of the facts for exercising this action.
Background and Facts
In the case at hand, an architect, insured by the Mutual of French Architects, was entrusted with the project management of urban development works in a planned development area by the Public Office of Development and Construction. Studies on roads and various networks were subcontracted to the company Artelia, insured by MMA IARD.
Following an order on April 15, 2005, mandating an expertise due to road subsidence, the client initiated legal actions on December 22, 2010, to seek compensation for the damage. Subsequently, AXA, the insurer of the municipality, sued the Mutual of French Architects for various payments on January 29, 2019. In response, the Mutual of French Architects brought in the subcontractor Artelia and its insurer MMA on February 8, 2021.
The appellate judges deemed this recourse extinguished due to the prescription period for the guarantee call, starting, according to them, from the order issued jointly with the expertise operations in 2005. (Court of Appeals, Chambéry, June 28, 2022, No. 21/02332).
The Mutual of French Architects challenges this decision, arguing that the starting point of the prescription cannot be determined with reference to Article 2224 of the Civil Code for a prescription that began before the entry into force of Law No. 2008-561 of June 17, 2008.
The Court of Cassation, through its rejection decision, confirms the lower court’s position. It reaffirms that the builder must initiate recourse actions within five years from the victim’s request for compensation. It emphasizes that the sole demand for expertise cannot trigger the prescription of the builder’s or insurer’s action.
Prescription of Recourse Between Builders
The Court of Cassation maintains the principle that when a builder is solicited by the victim to repair damage, recourse actions against other builders and subcontractors must be initiated within five years from the victim’s request for compensation.
This position is in line with its previous jurisprudence (see notably the rulings Cass. 3e Civ, 29 janvier 1992, n° 90-15.099 and Cass. 3e Civ., 15 février 2018, n° 16-28.143).
The ten-year prescription period stated in Article 1792-4-3 of the Civil Code is once again clearly set aside by the legal judge, who prefers the exclusive application of Article 2224 of the same code. This choice reaffirms the need to distinguish between the recourse guarantee among builders and the liability actions brought by the client against builders (including the architect) or their subcontractors.
In summary, the recourse action is excluded from the realm of special construction law, as it is consistent for recourse between builders to be subject to a common-law action period. The Court of Cassation had already observed that Article 1792-4-3 of the Civil Code was intended to apply exclusively to liability actions brought by the client against builders or their subcontractors. (Cass. Civ. 3e, 16 janvier 2020, n° 18-25.915).
Moreover, establishing the reception date as the starting point for the prescription period for a builder’s action against another builder could potentially deprive the first builder, when summoned by the client at the end of the period, of the right of access to the judge.
Contributions of the Ruling on November 23, 2023
The Court emphasizes that this provoked recourse does not constitute an exception to the five-year prescription period. The Court’s addition regarding the provoked recourse by the recourse action of a co-responsible party challenged by the victim reinforces the coherence of its interpretation.
A notable development lies in considering the moment from which the prescription period starts running. Previously, jurisprudence often considered that the period started when the urgent-expertise summons was issued by the client. This approach was criticized because it encouraged builders to initiate guarantee actions preventively, creating difficulties in the administration of justice.
The ruling on November 23, 2023, marks a change in direction by setting the starting point of the prescription period at the victim’s payment action, in this case, the summons by the client in 2010. This modification aims to avoid preventive recourse and ensure better consistency with common law.
The Court also emphasizes the non-fixed nature of the starting point of the prescription, stressing that the period does not run as long as the creditor is not aware of their right. This approach contributes to a more flexible and equitable interpretation of the prescription.
Finally, the Court confirms the legitimacy of declaring the insurer of the project manager’s action as inadmissible due to the extinction of the appeal period by the second-degree judges. This decision reinforces rigor in applying the prescription period and emphasizes the absence of possible derogation from this principle.
In conclusion, the ruling on November 23, 2023, while maintaining continuity with previous jurisprudence, brings significant adjustments to ensure a more coherent, equitable, and reality-adapted interpretation of recourse actions between builders.
Conclusion
This ruling by the Court of Cassation highlights the rigor in applying prescription deadlines for recourse actions between builders. It reaffirms the need for a builder to initiate recourse actions within five years from the victim’s legal request. The interpretation of Article 2224 of the Civil Code, established by the Court, clarifies the starting point of the period, favoring better administration of justice and avoiding excessive preventive recourse.
In conclusion, this decision strengthens legal stability in the construction field and encourages sector players to respect prescription deadlines to ensure fairness and efficiency in the judicial system. Builders and insurers must remain attentive to the implications of this jurisprudence to avoid time-barred disputes and promote better dispute management in the construction industry.
Commented Ruling: Cass. Civ. 3e, FS-B, n° 22-20.490