Business Contracts

The duty to advise is the most restrictive obligation for professional salespeople . 
Initially developed in disputes involving professional advisors or members of the medical profession, it quickly spread to the sale of products involving a certain level of technicality, such as the supply of computer products. Thus, according to the courts, the professional seller of computer equipment is bound  …

Duty to advise

The duty to advise is the most restrictive obligation for professional salespeople . 

Initially developed in disputes involving professional advisors or members of the medical profession, it quickly spread to the sale of products involving a certain level of technicality, such as the supply of computer products. Thus, according to the courts, the professional seller of computer equipment is bound by an obligation to inform and advise the purchaser, who has no expertise in the field, and must therefore recommend the most appropriate solution. The duty to advise applies to all computer service providers with regard to their lay customers .

As the courts have emphasized, the duty to advise involves encouraging, recommending, guiding and even recommending the solution that seems best suited to the expectations expressed by the customer . It obliges the seller, particularly when he is the installer of the item purchased, to draw the buyer's attention to the very desirability of contracting and to actively guide his choice, even if it means advising him against buying the product he has chosen, in order to recommend a more suitable one . A seller who installs the equipment himself is in breach of his duty to advise by failing to inform the customer of the ineffectiveness of the goods sold with regard to the objective pursued . The same applies to an industrial foundry engineering company which supplied two polishing machines with insufficient brushing action to an undertaking manufacturing machine tools, even though it has not been established that the purchaser would have been in a position to assess, on the basis of his own skills, the suitability of the machines for the service he expected . According to the Court of Cassation, the seller of materials must draw the attention of the lay purchaser to the disadvantages inherent in the quality of the material chosen, as well as the precautions to be taken when using it, given its intended use . Even though the seller must provide the buyer with sufficient information on his product, he is not obliged to give advice on competing solutions .

In practice, before concluding a contract, the seller must “ascertain the buyer's needs and inform him both of the technical constraints relating to the equipment sold, and of its suitability for the intended purpose” , since to satisfy both the obligation to provide information and advice and the obligation to deliver - the former often being seen as an accessory to the latter  - the professional seller must ensure that the product ordered corresponds to the buyer's actual needs, and guarantee normal use . Thus, a professional seller who installs a cover that requires either awkward handling or manipulation of the cover, without first warning pool users, is in breach of his obligation to deliver in conformity . In order to be able to advise his buyer, the seller is obliged to find out how his co-contractor intends to use the product, in order to adapt it  or fine-tune it  if necessary. An undertaking specializing in the supply of security systems, which failed to offer its customer, a clothing retailer, an alarm adapted to the risk of intrusion at height which it should have identified, failed in its duty to advise . A professional seller fails in his duty to advise, for the performance of which it is incumbent on him to seek out the buyer's needs, by selling him a high-powered speed boat when the latter was seeking a boat capable of navigating canals . The supply of a product unsuited to the buyer's needs, when it results from an erroneous estimate of those needs, constitutes a breach by the seller of his obligation to inform , except when the incorrect estimate of the buyer's needs is solely attributable to the latter . Thus, the seller cannot be blamed for failing to advise the buyer of equipment suitable for conditions of use which were not foreseen by the parties, and which changed after the date of conclusion of the contract, due to the significant and rapid increase in the buyer's sales . Similarly, the supplier of a complex IT product cannot be held wholly responsible for the partial non-performance of his obligation to deliver when the actual development of the software package sold has not been implemented due in particular to the purchaser's failure to clearly express his specific needs. In effect, while the purchaser, as a professional, has an obligation to advise on the choice of the IT solution to be used, it is also the purchaser's responsibility, as part of his own obligation to cooperate, to provide him with information on the specific operating requirements of his business .

For a time, the courts required sellers, as part of their duty to advise, to provide legal information, for example, informing the buyer of the need to obtain administrative authorization before installing the item sold   or of the legal consequences of the purchase . However, the Court of Cassation has reversed this position, ruling that the seller's duty to advise the buyer is limited to his area of technical competence . 

Lastly, the professional purchaser, who bears the burden of proving that he has personally discharged his duty to provide advice, may not exempt himself by requiring the purchaser to seek advice from other professionals  : the duty to provide advice applies even if the purchaser is accompanied by an installer at the time of purchase . The professional purchaser's duty to advise the lay purchaser remains, even if the sales contract contains a clause limiting liability. Similarly, when a contract of sale is concluded between two professionals working in different fields, the seller cannot successfully plead the warranty disclaimer contained in the general terms and conditions of sale to avoid liability for a breach of his obligation to advise .

Non-professional sellers have no duty to advise purchasers, which is only conceivable if there is an imbalance between the parties' competences.

CA Rouen, 21 June 2018, LawLex201900002071JBJ. According to the courts, the seller of a computer product has a duty to inform and advise the buyer, which requires the provision of technical information and up-to-date data (CA Rennes, 13 May 2008, LawLex201200001435JBJ). As part of this obligation, the vendor must inform the customer of the product's compatibility with existing hardware and systems (CA Orléans, 8 March 2012, LawLex201500001508JBJ), and provide clear backup instructions (CA Paris, 18 October 2007, LawLex200800001273JBJ). In addition, if the seller purports to be fully conversant with the constraints of the buyer's business sector, his duty to advise requires him to provide precise information on the limits of his commitments and the technical constraints prior to setting up an operational tool (CA Pau, 6 March 2007, LawLex200800001460JBJ).

CA Bourges, 5 September 2019, LawLex201900001077JBJ, noting that a seller specializing in the trading of industrial inks is obliged to supply the non-specialist professional purchaser with inks suitable for the intended use, to ensure that they are compatible with the process of use, and to provide him, where necessary, with any relevant advice to ensure such compatibility, is in breach of the obligation to deliver as intended when, on his own initiative, he supplies the buyer with a new ink for an the same use, without drawing the buyer's attention to its incompatibility with the use of a certain solvent.

CA Nîmes, 28 March 2019, LawLex201900000456JBJ. See also CA Paris, 8 June 2017, LawLex201700001035JBJ, holding that a seller who fails to mention in his estimate any information or warning that the installation of the roller shutters ordered may damage the paintings and ceilings of the buyer's home, is in breach of his obligations.

Cass. civ. 1re, 7 April 1998, LawLex200500005853JBJ.

Cass. civ. 1re, 25 June 1996, LawLex200500005854JBJ.

CA Aix-en-Provence, 9 October 2008, LawLex201200001426JBJ. - See also Cass. 1re civ, 18 May 1989, LawLex202200000270JBJ, noting that the installer of a remote security system is obliged to advise the customer when the system is installed in the store, especially if the customer is a layman or novice in the field.

CA Colmar, 16 October 2003, LawLex200800001473JBJ.

Cass. com, 15 May 2001, LawLex200500003682JBJ. 

Cass. com. 11 March 2020, LawLex202000001662JBJ, holding that the seller and installer may be exempted from any obligation to advise if the professional purchaser, in view of his carpentry work, can appreciate the exact scope of the technical characteristics of the vacuum system delivered, and hence the unsuitability of his electrical installation for it.

Cass. com. 14 March 1989, LawLex202200000271JBJ.

Cass. com. 20 June 2018, LawLex201900002062JBJ.

CA Nîmes, 13 September 2012, LawLex201300001095JBJ.

CA Toulouse, 1 March 2000, LawLex200800001509JBJ.

Cass. com. 25 May 1993, LawLex200500006099JBJ, the seller-installer specializing in anti-theft systems is obliged, if necessary after having informed himself of the conformity of his equipment to the standards imposed by insurers, to notify his buyer of the consequences of his purchase with regard to coverage for the risk of theft.

Cass. civ. 1re, 25 June 2002, LawLex200500005849JBJ, holding that a seller of a video-surveillance system is not in breach of his obligation to inform when he fails to draw the attention of the undertaking purchasing the system to the incompatibility of its installation with the provisions of the Labor Code.

Cass. 1re civ, 28 June 2012, LawLex202200000773JBJ.

Cass. civ. 1re, 30 May 2006, LawLex200600001457JBJ.

Cass. com, 15 May 2001, LawLex200500003682JBJ.

Cass. com, 11 July 1988, LawLex200500006101JBJ. 

CA Bordeaux, 25 June 2007, LawLex200800001440JBJ.

CA Rennes, 6 November 2018, LawLex201800001693JBJ.

Cass. civ. 1re, 27 February 1985, LawLex200500005932JBJ ; 20 June 1995, LawLex200500005883JBJ, holding, however, that the supplier of a material cannot be blamed for having failed in his obligation to inform the lay buyer, since the latter had not advised him of the uncommon use he intended to make of the disputed tiles as a result of his decision to remove the gutters; CA Caen, 22 March 2022, LawLex202200001822JBJ : even if it cannot be deduced from the “first choice” classification used in the contractual stipulations between the parties that the slates sold were necessarily class A, the seller, obliged as a professional, to inform purchasers of the qualities and technical characteristics of the product to be installed - and in particular of the aesthetic problems that may arise if class B slates are installed, i.e. pyrite stains and drips - failed in his duty to inform and advise, by not informing them of the various applicable standards, which would have enabled them to make an informed choice.

Cass. com. 12 November 1992, LawLex200500006098JBJ.

Cass. com. 1 December 1992, LawLex200500005858JBJ.

Cass. civ. 1re, 25 June 1996, LawLex200500005854JBJ, stating that the obligation to advise, accessory to the obligation to deliver, requires the seller to fine-tune the equipment sold, even if no reservations were expressed by the purchaser at the time of delivery. See also CA Rennes, 6 November 2018, LawLex201800001693JBJ, stating that the obligation to deliver a thing in conformity with that agreed between the parties consists in delivering a thing not only in conformity with the characteristics expressly agreed between the parties, but also which corresponds to the objectives sought by the buyer, provided only that he has clearly stated them to the seller.

Business Contracts

165. Duty to advise

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

165. Duty to advise

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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