- Situation
- Variety, rootstock, species, grade or category delivered different from the order
- Who is concerned
- Fruit growers, winegrowers, vegetable growers, nurseries, landscapers; plant and seed producers and distributors
- Time limits under French law
- In principle five years from when the error becomes known, within an overall limit of twenty years; a contract or the latent defect regime may shorten this
In short
Delivering a variety other than the one ordered is a breach of the obligation to deliver conforming goods. The buyer may seek replacement, termination of the sale and damages. In an orchard or vineyard, the loss goes far beyond the price of the plants: lost years of production, grubbing up, replanting, delayed entry into production.
Non-conformity or latent defect?
Under French law, delivering something different from what was ordered is a failure of delivery, subject to longer time limits than a latent defect (two years from discovery). A wrong variety is in principle a non-conformity, but the boundary is sometimes debated: the case must be qualified with care.
Shape and colour of the fruit, flowering and ripening dates, tree habit, leaf shape, rootstock vigour: a variety is recognised by precise characteristics. Describing and documenting them season after season is often the first evidence, even before genetic analysis.
Proving the error
- Keep the order form, invoice, labels, certificates and passports, and a planting plan.
- Have the variety identified: morphological examination by an expert and, if necessary, genetic analysis.
- Have the findings made jointly with the other party before any grubbing up.
- Notify the seller in writing as soon as the error is discovered.
Quantifying the loss
- the price of the plants and the cost of grubbing up and replanting;
- lost production during the years needed for new plants to come into bearing;
- the difference in value between the variety ordered and the variety delivered;
- lost marketing contracts.
How the firm can help
- Qualify the case and check the time limits.
- Organise variety identification and joint expert findings.
- Quantify the loss over several seasons and obtain compensation.
- Defend the producer or distributor, tracing the chain back to the origin of the error.
General information on French and EU law, which does not replace an analysis of your situation. Read the French version.