Short answer. A buyer who discovers, after the sale, a serious and non-apparent defect in a second-hand yacht (osmosis, structural corrosion, an engine worn beyond the declared hours, water ingress) has the action for latent defects under articles 1641 and following of the French Civil Code: return of the price against return of the vessel, or a reduction in price, plus damages where the seller knew of the defect. The time limit is two years from discovery, and since a mixed-chamber ruling of 21 July 2023 that period is a prescription period, suspended by a court-ordered survey and capped by a twenty-year long-stop from the sale. Against a professional seller, an as is clause gives no protection; against a private seller in good faith, it can close the action.
The second-hand yacht market runs on misplaced trust. The buyer visits, takes a sea trial, sometimes instructs a surveyor for a few hours, and signs. Six months later the hull shows blisters, the engine burns oil, the electronics fail, or a yard finds that the deck was refinished over a tired structure. The question is always the same: against whom, on what basis, and within what time. What follows answers from the buyer’s side, but it serves the seller too, who has every interest in knowing precisely what he is exposed to.
1. What counts as a latent defect, and what does not
Article 1641 of the Civil Code defines the latent defect as a flaw in the thing sold which renders it unfit for its intended use, or so impairs that use that the buyer would not have bought, or would have paid less, had he known. Three conditions follow: the defect predates the sale, it is serious, and it is hidden. On a yacht, anteriority is shown by the nature of the disorder, since osmosis does not appear in six months; seriousness by the survey, where an engine needs rebuilding on a vessel sold as freshly serviced; and the hidden character by comparing what a reasonably diligent buyer could see with what was later found.
Article 1642 excludes apparent defects which the buyer could have discovered for himself. This is where the pre-purchase survey cuts both ways. What the surveyor saw, or ought to have seen, becomes apparent: galvanic corrosion visible on the drives, moisture readings on the deck, engine hours inconsistent with wear on the controls. What the inspection could not reveal without dismantling or an extended lift-out stays hidden: delamination under the gelcoat, a cracked floor timber beneath the sole, an engine whose ECU has been reset. The pre-purchase report is therefore the first document to re-read, because it fixes the boundary between what the buyer accepted and what he may still complain of.
2. Three regimes, depending on who sold to whom
The applicable regime depends first on the parties. Between private individuals, articles 1641 to 1649 of the Civil Code apply and nothing more. Where a professional sells to a consumer, whether a dealer, a yard, a broker selling in his own name or a charter company renewing its fleet, the buyer cumulates the Civil Code warranty against latent defects with the statutory conformity guarantee of the Consumer Code: article L. 217-3 makes the seller liable for lack of conformity existing at delivery and appearing within two years, and article L. 217-7 presumes, for a second-hand good, that defects appearing within twelve months of delivery already existed at that date, unless proved otherwise. That presumption relieves the buyer of proving anteriority, which is in practice half the case.
The professional character is assessed concretely. A company operating a yacht in charter and reselling her is a professional seller of that vessel, even if selling is not its main business. A private individual selling his own boat is not, even if he is a professional seafarer. A broker acting as agent for a private seller is not the seller, but he incurs his own liability if he concealed information or presented the vessel misleadingly.
3. The as is clause and the MYBA contract
Article 1643 of the Civil Code allows a seller to stipulate that he will owe no warranty, even for defects he did not know of. Yacht sale contracts use this systematically: the MYBA form, the market standard, sells the vessel as is, where is, after a sea trial and an inspection the buyer is deemed to have accepted. The clause has two limits. The first is settled case law: a professional seller is presumed to know the defects of what he sells, and that presumption is irrebuttable, so he cannot invoke an exclusion clause. The second rests on good faith: a seller, even a private one, who knew of the defect and kept silent cannot rely on the clause, and article 1645 then makes him liable for all damages.
Between private individuals, by contrast, the exclusion genuinely protects a seller in good faith. A buyer who signed a MYBA contract with a private seller must therefore show that the seller knew: earlier yard invoices mentioning the disorder, correspondence with a previous surveyor, a recent cosmetic repair masking the defect, evidence from the skipper or the yard keeper. That search for proof is often the heart of the case. Where the MYBA contract designates English law, the question shifts: the as is clause there takes full effect, and the buyer is left with misrepresentation, whose conditions are different. The choice of governing law, negotiated at signature, therefore decides in advance the fate of a defect discovered later.
4. Time limits: two years, twenty years, and the effect of a survey
Article 1648 of the Civil Code requires action within two years of discovery of the defect. Discovery is not the mere appearance of a symptom: it is the moment the buyer knows the defect in its extent and its cause, which usually means the date of the survey report. An engine failure in July does not start the clock; the report which, in October, attributes that failure to a defect predating the sale does.
The nature of that period long divided the chambers of the Cour de cassation, with considerable practical consequences. By four mixed-chamber rulings of 21 July 2023, notably no. 21-15.809, published in the bulletin, the Court settled it: the two-year period of article 1648 is a prescription period, not a foreclosure period. It can therefore be suspended, in particular by an investigative measure ordered before any proceedings under article 2239 of the Civil Code, so that an application for a court-appointed surveyor stops time running until the report is filed. The Court added that the two-year period is itself capped by the twenty-year long-stop of article 2232, running from the day of the sale, rather than by the five-year commercial prescription. A buyer who discovers a defect seven years after purchase can still act; a seller remains exposed for twenty years.
5. Evidence: repair nothing before the survey
The most common mistake a buyer makes is to have the vessel repaired. The yard replaces the engine, refinishes the hull, and the evidence of the defect leaves with the parts. From the moment the disorder appears, the right conduct is the opposite: keep the vessel as she is, photograph, have a judicial officer record the condition if it is evolving, and call the seller to an adversarial private survey. If the seller does not attend, or the findings are disputed, article 145 of the Code of Civil Procedure allows a court-appointed expert to be obtained in summary proceedings where there is a legitimate reason to preserve or establish, before any trial, evidence of facts on which the outcome of a dispute may depend.
A court expertise has three advantages: it binds the seller, it suspends the two-year period, and it allows the pre-purchase surveyor, the broker and the yard that carried out the last repairs to be joined. The expert will answer the questions that decide the case: did the defect exist before the sale, was it detectable on a normal inspection, what caused it, what does rectification cost, and what is the diminution in the vessel’s value.
6. Remedies: give the vessel back, keep her, or pursue others
Article 1644 of the Civil Code gives the buyer an option: return the vessel and recover the price, or keep her and recover part of the price. The choice is strategic. Rescission suits a defect affecting structure or safety; it presupposes being able to give the vessel back, which is awkward where she has been modified or is held under a lease. A reduction in price suits a repairable defect where the buyer wants to keep the boat, and the figure generally matches the cost of repairs, increased where appropriate by the residual loss in value.
Damages come on top. Article 1645 makes a seller who knew of the defect liable for all damages: survey costs, watching and berthing, loss of use, lost charter revenue, finance costs. The professional seller, presumed to know, is therefore always exposed. A seller in good faith owes only restitution of the price and the costs of the sale (article 1646). And the buyer is not limited to the seller. The pre-purchase surveyor who missed a detectable defect incurs contractual liability. The broker who wrote a misleading listing or concealed an earlier report incurs his. The yard that carried out a repair masking the defect answers for its work. And the buyer, subrogated in his seller’s rights, may pursue an earlier seller or the builder where the defect goes back to construction, since the warranty travels with the thing. A yacht defect case commonly involves four or five parties.
7. Buying abroad: governing law and jurisdiction
A large share of second-hand yachts bought by French residents are bought abroad, or from a foreign seller, or under a foreign flag. The contract then often designates a foreign law and forum, or arbitration in London. Where the contract is silent, the Rome I Regulation points in principle to the law of the seller’s habitual residence, and the Brussels I bis Regulation allows the seller to be sued at his domicile or at the place of delivery.
For a consumer buyer, protective rules may bring the dispute before the French courts and under French law where the professional seller directed his activity towards France. These questions arise before signature, and settling them while there is still room to negotiate is precisely the purpose of pre-purchase due diligence.
Have you found a defect on a yacht bought recently? Repair nothing before the condition has been formally recorded. An initial discussion establishes which time limit is running, which regime applies, and what to do first.
Frequently asked questions
What is the time limit for a latent defect on a second-hand boat?
Two years from discovery of the defect, usually the date of the survey report (article 1648 of the Civil Code). Since the mixed-chamber ruling of 21 July 2023, no. 21-15.809, that period is a prescription period, suspended by a court-ordered survey, and capped by a twenty-year long-stop running from the sale.
Does the MYBA as is clause bar any claim?
Not where the seller is a professional, presumed to know the defects, nor where a private seller knew of the defect. It does, in principle, protect a private seller in good faith under French law. Under English law, often chosen in MYBA contracts, the clause takes full effect and only misrepresentation remains.
What can the buyer obtain?
Return of the price against return of the vessel, or a reduction in price (article 1644 of the Civil Code), and, where the seller knew of the defect, all damages: survey costs, watching and berthing, loss of use, lost charter revenue (article 1645).
Should the vessel be repaired before taking action?
No. Repairing destroys the evidence. Keep the vessel as she is, have the condition recorded, call the seller to an adversarial survey and, failing agreement, apply for a court-appointed expert under article 145 of the Code of Civil Procedure.
Can the pre-purchase surveyor or the broker be pursued?
Yes. A surveyor who missed a detectable defect and a broker who concealed information or wrote a misleading listing both incur liability, and can be joined to the court expertise alongside the seller.
Further reading: the MYBA as is, where is clause, buying a yacht abroad, purchase due diligence.
Written by Hervé Guyader, avocat at the Paris Bar, doctor of law. This content is general information and is no substitute for advice on your own matter.