Business Contracts

Originally, the drafters of the 1804 Code considered the parties to a contract to be on an equal footing and to inform themselves of the scope of their obligations. However, as sellers are often in a position of strength due to their skills and knowledge, case law has established an obligation to inform, requiring them to spontaneously provide buyers with information likely to be relevant to their decision to conclude a contract. The obligation to provide information is therefore designed to restore the contractual balance, in terms of knowledge and expertise, between the parties to the sales contract, particularly when the contract is between a professional seller and a lay purchaser or consumer. The Consumer Code also imposes a number of information obligations on professional sellers, but we will consider here the seller's obligation to inform only from the point of view of the provisions of the Civil Code .

The seller's duty to inform is pre-contractual in nature, when the provision or withholding of information determines the buyer's consent, and contractual in nature, when it is a condition for the proper performance of the contract formed. Implicit until the reform of contract law, which established a general pre-contractual information obligation in Article 1112-1 of the Civil Code, the scope of which is limited to cases where the formation of the contract gives rise to negotiations , this obligation is rooted in the principle of good faith enshrined in Article 1104 and the defects of consent in Article 1130.

The seller's obligation to inform also derives from provisions specific to the law governing sales, namely Article 1602, which stipulates that the seller must clearly explain to the buyer what he or she is committing to, and that any vague or ambiguous agreement will be interpreted against the seller; Article 1604, relating to delivery; and Article 1615, which states that “the obligation to deliver the thing includes its accessories and everything intended for its perpetual use”. From the combination of these three provisions, the courts have deduced the obligation of the professional vendor to inform himself of the purchaser's needs, and to provide him with all the information required for the use of the item sold. The concept of professional seller covers both manufacturers  and importers. The professional seller is presumed to know the characteristics and conditions of use of the products he offers for sale, unlike the occasional or lay seller, to whom this presumption does not apply, and who can only be held liable if it is established that he possessed information which he did not disclose to the buyer . On the other hand, when it comes to information that does not fall within his sphere of competence, the professional seller must be treated in the same way as a lay seller. Conversely, a seller who is a priori a layman may be characterized as a professional depending on the circumstances of the sale, and in particular his or her experience  .

The trial courts consider that the breach of Article L. 111-1 of the Consumer Code (concerning the provision of pre-contractual information on the essential characteristics of the goods or services sold) constitutes the transposition of the general information obligation placed on all sellers by Article 1602 of the Civil Code - see CA Bordeaux, 6 September 2012, LawLex201400000469JBJ. Furthermore, failure to comply with the seller's obligation to provide information, whether under the Civil Code or the Consumer Code, gives rise to the same civil penalties.

The pre-contractual information obligation can be found in the Civil Code, in the sub-section dedicated to negotiations.

Cass. 1re civ., 29 May 2001, LawLex200800001450JBJ, declaring that the manufacturer, even before its resellers, is presumed to have total mastery of the characteristics and properties of its products.

Cass. 3e civ., 21 July 1993, LawLex200500005856JBJ.

CA Lyon, 19 April 2011, LawLex201200000949JBJ, holding that a seller of a barge whose professional career had taken place on board riverboats remained, despite the total cessation of his activity, a boating professional who was familiar with the regulations applicable to riverboats and could not be unaware of the boat's actual condition.

161. Information obligation