The 3rd Civil Chamber of the French “Cour de Cassation” had the opportunity to remind this principle on September 7th, 2011 within the framework of a dispute setting a real-estate company, which had made build then sold by lots the buildings of a residence, to the co-owners following important problems of waterproofness affecting terraces: The real estate company sought the coverage of his insurer who opposed him an exclusion from coverage provided in the insurance contract which planned besides an endorsement " defect of waterproofness " coming into effect provided " that a control office beforehand established a special report giving evidence of the absence of any disorders during a period of one year of observation susceptible to be prolonged of the additional year if a defect of waterproofness occurred meanwhile ".

The Court of Appeal having condemned this insurer to guarantee the real-estate company because he " did not bring the proof that the conditions of the exclusion are gathered", the Cour de Cassation censored the ruling, blaming the judges of the Court of Appeal for not having verified also that " the insured proved that the conditions planned by the police relative to the intervention of a control office, the absence of disorder during an initial period or a certificate of resumption of these were performed".

So, the judges have to make sure at first that the conditions of implementation of the coverage are gathered to estimate then the defense set by the insurer on the basis of an exclusion from coverage which he has to prove.