Contractor Recourse After a Decennale Claim: What Time Limit?

This article describes French construction insurance law. When a contractor is sued by the project owner following a claim under the garantie décennale (France's mandatory ten-year structural liability cover for construction professionals), that contractor's own recourse against another contractor or a subcontractor does not follow the ten-year décennale period. It follows the ordinary five-year prescription period set out in article 2224 of the Code civil, running from the day the contractor being sued knew, or should have known, the facts allowing it to act against the party it intends to join to the proceedings. The French Supreme Court (Cour de cassation) has also ruled out any extension based on the claim being "triggered" by someone else's lawsuit.

The essentials

• A contractor's recourse against another contractor or a subcontractor is subject to a five-year prescription period, not the ten-year décennale period (article 2224 of the Code civil; Cour de cassation, 3e chambre civile, 16 January 2020, n° 18-25.915).
• The starting point of this five-year period is the date on which the contractor being sued was itself summoned or implicated by the claimant — not the date the works were accepted (réception des travaux).
• This five-year period runs the same way even when the recourse is "triggered" by another party being implicated by the claimant: the Cour de cassation has ruled out any extension for a contractor joined late to the case (Cour de cassation, 3e chambre civile, 23 November 2023, n° 22-20.490).
• A request for a court-ordered expert report alone does not interrupt this period unless it is accompanied by a claim seeking recognition of a right.
• A recourse claim brought out of time is dismissed as inadmissible: the contractor found liable then bears the entire cost of the claim alone, with no way to share it with other responsible parties.

Why doesn't recourse between contractors follow the ten-year décennale period?

Article 1792-4-3 of the Code civil, which sets the ten-year décennale period running from acceptance of the works, only governs the project owner's action against contractors. It does not apply to the recourse a contractor found liable later brings against another contractor or its subcontractor.

This is what the Cour de cassation clarified in a ruling of 16 January 2020 (3e chambre civile, n° 18-25.915, published in the Bulletin). The facts: works accepted on 23 December 1999 led, ten years later, to the co-owners' association bringing a summary expert-report claim against the architect (17 December 2009), then against the tiler and his insurer (late 2009 and January 2010). The architect in turn joined the tiler to the proceedings in June 2014. The Riom Court of Appeal ruled that recourse claim time-barred, on the ground that it had been brought more than ten years after acceptance of the works — wrongly applying the décennale period to recourse between contractors.

The Cour de cassation overturned that specific point. It held that article 1792-4-3 only governs the project owner's action, and that recourse between contractors, or against a subcontractor, falls under article 2224 of the Code civil: a five-year prescription period running from the day the claimant knew, or should have known, the facts allowing it to act. Practical consequence: recourse between construction professionals can remain admissible well beyond the tenth year following acceptance, provided it was brought within five years of its own starting point.

When does this five-year period start running?

The starting point applied by the Cour de cassation in the 16 January 2020 ruling is the date on which the summary expert-report claim brought by the project owner (or the co-owners' association) implicates the liability of the contractor being sued. It is this implication — not the acceptance of the works, nor the date of the claim itself — that starts the five-year period within which that contractor must itself act against the parties it wishes to join to the case.

In the case at hand, the architect had been served with the summary expert-report claim on 17 December 2009: that is the date, according to the Cour de cassation, from which his own time limit to act against the tiler began to run — not the earlier date of acceptance of the works. His claim against the tiler in June 2014 therefore fell within the five-year period, even though it came almost fifteen years after acceptance.

One point of caution follows from this case law: a request for an expert report on its own, without an accompanying claim seeking recognition of a right, even on a provisional basis, does not interrupt the running prescription period. A contractor that merely seeks an expert report against a co-liable party, without bringing an actual legal claim against it, does not thereby secure its future recourse.

Does a recourse "triggered" by another party's claim get extra time?

No. This is the second contribution of this line of case law, established by a ruling of 23 November 2023 (Cour de cassation, 3e chambre civile, n° 22-20.490, published in the Bulletin): the Cour de cassation expressly rejected the so-called "triggered recourse" theory, which would have given a separate, more favourable time limit to a contractor joined late to a case by another party already being sued by the claimant.

The principle is as follows: a contractor sued by the claimant must bring its own recourse against other potentially liable contractors within five years of being sued itself — and this rule applies in the same way when that recourse is "triggered" by the action of another liable party already implicated by the claimant. There is no separate, staggered five-year period for each link in the chain of recourse claims.

The ruling also clarifies a useful technical point: submissions seeking a guarantee from a co-liable party, filed by an insurer in ongoing proceedings, can interrupt prescription — but only if filed in the correct capacity (as the insurer of a given company, rather than of its individual director, for instance) and only if not followed by a withdrawal. A withdrawal renders an earlier interruption void under article 2243 of the Code civil, which can bring back a prescription period that appeared to have been avoided.

What does this mean in practice for a construction company?

Taken together, these two rulings have a direct operational consequence for a construction company: a company sued by the project owner, or by its dommages-ouvrage insurer (France's mandatory first-party insurance that pre-finances repairs to the project owner before liability is established), cannot simply wait for the outcome of the main dispute before joining the other contractors or subcontractors it considers liable. Its own five-year period starts running as soon as it is itself sued, regardless of the pace of the main proceedings.

In practice, this means filing recourse claims as soon as possible after being sued, rather than waiting for a final expert report or the outcome of a first set of proceedings. It also means checking the exact capacity in which each party is being joined, and keeping track of any withdrawals that could void an interruption of prescription already obtained.

Where the party identified as liable is a subcontractor, the main contractor should already have checked whether that subcontractor is legally required to hold décennale cover at all and the validity of its décennale certificate — two checks that determine whether the recourse claim is actually worth bringing, independently of the time limit for bringing it.

Action	Time limit	Starting point	Legal basis
Project owner's action against a contractor	10 years (décennale cover)	Acceptance of the works	Article 1792-4-3 of the Code civil
Recourse by a contractor against another contractor or subcontractor	5 years	The contractor being sued is itself implicated by the claimant	Article 2224 of the Code civil
Recourse "triggered" by another party's claim	5 years (no separate period)	The claimant's initial action, with no extension	Cour de cassation, 3e chambre civile, 23 November 2023, n° 22-20.490

Frequently asked questions

Is the time limit for recourse between contractors the same as the décennale period?

No. The décennale cover (article 1792-4-3 of the Code civil) governs the project owner's action against contractors, running for ten years from acceptance of the works. Recourse by a contractor against another contractor or a subcontractor follows a separate five-year prescription period (article 2224 of the Code civil), which can run well beyond the tenth year after acceptance.

When does the time limit to join a subcontractor to a case start running?

From the date on which the contractor being sued was itself summoned or implicated by the claimant (the project owner or the co-owners' association) — not from the date the works were accepted, nor from the date of the claim itself. This starting point was clarified by the Cour de cassation on 16 January 2020.

Does a contractor joined late to a case get extra time?

No. The Cour de cassation rejected the "triggered recourse" theory: even where a contractor is implicated as a result of another liable party already being sued, the five-year period runs from the claimant's initial action, with no separate period or extension for the contractor joined second.

Does requesting an expert report interrupt prescription?

Not on its own. A request for an expert report that is not accompanied by a claim seeking recognition of a right, even provisionally, does not interrupt the running prescription period. A contractor should pair any request for an expert report with an actual recourse claim if it wants to protect its position.

What happens if an interruption of prescription is followed by a withdrawal?

A withdrawal renders the earlier interruption void, under article 2243 of the Code civil. A contractor that withdraws its recourse claim and later wishes to revive it may then find itself out of time, even though an interruption had initially been obtained.

What McLer does

McLer is an insurance brokerage specialised in corporate risk for the road transport and construction sectors. Based in the Paris region, McLer supports French SMEs and mid-sized companies in structuring, negotiating and managing their insurance programmes. The brokerage also helps construction companies check, at the contracting stage, that decennale and professional liability cover is consistent with their subcontractors'.

Facing a recourse question after a decennale claim against another contractor or a subcontractor? Talk to a McLer broker about your decennale and professional liability cover.