Business Contracts

Failure to comply with the obligation to inform gives rise to various penalties, depending on whether the obligation is of a pre-contractual nature, when the information provided or withheld has been decisive in shaping the buyer's consent, or of a contractual nature, when its purpose is to enable the buyer to enjoy the purchased good in optimum conditions.
At the pre-contractual stage, if the buy …

Sanctions

Failure to comply with the obligation to inform gives rise to various penalties, depending on whether the obligation is of a pre-contractual nature, when the information provided or withheld has been decisive in shaping the buyer's consent, or of a contractual nature, when its purpose is to enable the buyer to enjoy the purchased good in optimum conditions.

At the pre-contractual stage, if the buyer's consent is vitiated by the seller's  or manufacturer's  failure to comply with its obligation to provide information, the penalty is the cancellation of the contract of sale, if this failure on the part of the seller is the exclusive cause of the buyer's mistake  or constitutes fraud , in which case intent to deceive is mandatory, including in the case of fraudulent non-disclosure . An action for invalidity based on a defect of consent on the part of the buyer does not preclude an award of damages .

Where it relates to the performance of the contract, the seller's breach of his obligation to provide information may result in the rescission of the sales contract if it is sufficiently serious . Such seriousness is established in particular when the delivered item is unfit for its intended purpose , becomes unusable for legal reasons  or when the breach results from a material modification of the terms of the contract envisaged by the buyer . The seller's breach of the obligation to provide information, while not serious enough to justify rescission of the sale, may nevertheless give rise to a right to compensation, provided that it has deprived the buyer of the means to make proper use of the thing sold . Thus, the professional seller of a swimming pool who does not justify having informed the purchasers, laymen in the field, of the operating instructions for the PVC coating intended to guarantee the impermeability of the pool, has deprived them of the means to make correct use of the pool, in conformity with its intended purpose, so that he must be held responsible for the blistering and discoloration of the PVC coating, and ordered to compensate for the consequences of his failure to comply with his obligation to deliver in conformity .

In effect, breach of the information obligation usually gives rise to an action for damages, brought under Article 1231-1 of the Civil Code, under which the debtor is ordered to pay damages for non-performance of his or her obligation. A failure to inform the purchaser of the causes of the delay in delivery of the property may thus give rise to a claim for damages . In the event of harm  which often results from a loss of opportunity , the buyer may be entitled to compensation from his direct co-contractor, the seller, but also from the manufacturer , depending on each party's share of liability . As an accessory to the item sold, the obligation to provide information and advice is passed on to successive purchasers of the item, so that the sub-purchaser has a direct contractual claim against the manufacturer .

To avoid liability, the seller of the good, the supplier of the service or the manufacturer may claim careless or improper use of the product by the purchaser . At best, however, the seller is deemed jointly liable , but almost never fully exonerated . On the other hand, in order to escape liability, the seller cannot argue that the confusion is legitimate if he has given incorrect information to the purchaser , or that the manufacturer omitted to inform the purchaser since he is obliged to seek information from the manufacturer , unless he himself has been deceived by his own seller . Moreover, the seller cannot invoke the existence of a warranty disclaimer even with regard to another professional, if the latter is contracting in a field outside his area of competence .

CA Aix-en-Provence, 26 October 2006, LawLex200700000761JBJ, noting that when a seller causes a buyer to enter into a contract solely on the basis of a lie - that the appliances sold can be plugged into simple electrical outlets - the seller commits fraud, given that it is his responsibility, both in this capacity and as an electrical equipment installer, to ascertain not only the buyer's needs, but also to adapt the proposed equipment to the intended use.

CA Rennes, 17 May 2013, LawLex201500001506JBJ: justifying the cancellation of the sales contract for fraudulent non-disclosure, where the manufacturer of a new and complex product, required to provide the purchaser, even if he is a professional user of the equipment, with comprehensive and accurate information on the conditions of use of the product, fails to inform the latter that the device did not, in breach of the regulations, have the certification required at the time of sale.

CA Lyon, 26 May 2005, LawLex200800001471JBJ, holding that the seller's failure to provide information on the conditions and precautions of use of the equipment purchased, while not serious enough to justify rescinding the sale, since despite the problems encountered, the buyer continued to use the equipment two years after delivery, must nevertheless give rise to damages, since it deprived him of the means to make proper use of it.

CA Nîmes, 31 January 2019, LawLex201900000167JBJ.

CA Metz, 13 October 2016, LawLex201600001775JBJ.

CA Pau, 3 June 2008, LawLex200800001435JBJ, holding that the seller-installer of an electric motor pump having failed in his duty to advise, which implied informing the buyer of all the essential conditions for the correct operation of the equipment sold for watering purposes, and in particular its electricity supply, owes him compensation for the operating losses suffered and the work involved in rectifying the defects.

CA Aix-en-Provence, 9 October 2008, LawLex201200001426JBJ, holding that the harm suffered by an undertaking resulting from failure to install a protection system covering the risk of intrusion at height can be analyzed as a loss of opportunity to avoid suffering damage due to such an event, equivalent to half the loss suffered, since the presence of a complete protection system would not necessarily have prevented all damage and would only have been likely to limit its extent; CA Nancy, 5 January 2013, LawLex201300001099JBJ, on the buyer's loss of opportunity to use a standard-compliant installation, ruling out any risk of fire through self-ignition; CA Bordeaux, 5 September 2019, LawLex201900001065JBJ, on the buyer's loss of opportunity to negotiate the machine at a lower price than that actually paid to the seller.

Cass. civ. 1re, 23 April 1985, LawLex200500005936JBJ, stating that the obligation to provide information is incumbent on both the manufacturer and the specialized retailer and that the manufacturer therefore incurs liability towards the purchaser of one of its products when it has failed in its obligation and the specialized retailer has not been brought into the case; CA Versailles, 19 September 1997, LawLex200300004469JBJ, ruling that failure to provide information on the dangers of abnormal use of a product engages the civil liability of the manufacturer, who is obliged to make good the harm suffered by a buyer who has purchased from a supermarket.

CA Rouen, 17 April 1982, LawLex200500008761JBJ, noting that even in the absence of a manufacturer's warning of the dangers of using its product, the flammable nature of the glue sold, indicated on the containers, creates a duty for the retailer to inform himself of the risk of ignition and the precautions to be taken, both for the handling of his own stores and for the information of customers, so that liability should be allocated as follows: two-thirds to the manufacturer, one-sixth to the retailer and one-sixth to the purchaser, a gas station operator, who, although aware that a product is flammable as much by the vapors it gives off as by direct contact with a flame, should, in the absence of details of the possible ignition process and given his impaired sense of smell, have been careful not to use this product in confined areas close to a flame.

CA Riom, 14 February 2007, LawLex200800001565JBJ. 

Cass. com, 21 September 2010, LawLex202300007972JBJ, holding that since the manufacturer's obligation to inform the professional purchaser exists only insofar as the latter's competence does not give him the means to assess the full scope of the technical characteristics of the goods delivered to him, it was in the sovereign exercise of their power to assess this competence that the trial courts held that the undertaking purchasing the goods, which, by using a new product without taking the trouble to provide its technical data, had demonstrated a blatant carelessness that was reprehensible, should be held partly liable for its damage; CA Lyon, 8 February 2007, LawLex200800001567JBJ, holding that a buyer who sues the seller for damages on the grounds of breach of his duty to advise, is equally liable for his accident when he used the products sold without ensuring any protection against the risk of the products falling or bending. Cf. Cass. civ. 1re, 13 May 1986, LawLex200500006103JBJ, holding the manufacturer fully liable, despite the commission of a minor mistake by the purchaser.

Cass. civ. 1re, 30 June 1993, LawLex200500006097JBJ, noting that liability must be shared between the non-professional purchaser who, by confusing the effects of an all-speed regulator with those of an electronic gearbox lock, committed a fault that contributed to his damage, and the professional purchaser who, by failing to draw the latter's attention to the respective performances of each of the two systems, was at the origin of the fault; CA Versailles, 19 September 1997, LawLex200300004469JBJ, holding that liability should be shared between the manufacturer, when it has failed in its duty to inform about the dangers of abnormal use of its product, and the non-professional purchaser, who by his negligence has contributed to his own damage; CA Montpellier, 25 March 2003, LawLex200800001459JBJ, holding that liability for damage must be shared between the buyer and the seller, when the former has used the equipment sold in conditions contrary to the latter's recommendations, even if the seller did not properly inform the buyer of the maintenance conditions; CA Rennes, 19 January 2007, LawLex200800001566JBJ, ruling that even if the professional paint seller has failed in his duty to advise by not asking for clarification of the color actually desired, in the event of a contradiction between the reference number and the color indicated, he is only liable for half of the harm suffered by his customer, who made the initial mistake.

Cass. civ. 1re, 3 April 2002, LawLex200800001451JBJ; Cass. com.., 13 March 2012, LawLex201200000977JBJ, noting that a professional purchaser who makes a single purchase of two agricultural machines which turn out to be incompatible, without having been informed of this incompatibility by the seller, is entitled to obtain a declaration of invalidity of the sale on the grounds of mistake, since, for him, given the circumstances of the case, the essential quality of one was its adaptability to the other.

Cass. civ. 1re, 11 October 1983, LawLex200500006107JBJ, holding that the buyer's carelessness, while leading to a sharing of liability, cannot constitute a cause of total exoneration for the manufacturer, insofar as he failed in his obligation to provide information. See however Cass. com, 11 March 2020, LawLex202000001662JBJ, overruling a court of appeal that had held the seller and designer of a dust and wood chip extraction and treatment system liable, even though they had duly fulfilled their duty to advise, the professional purchaser, even if they had duly fulfilled their duty to advise, the professional purchaser - who was required to install a vacuum system in order to comply with current legislation - should in any case have adapted his pre-existing electrical installation, so that the harm claimed in respect of the cost of modifying the electrical installation had no causal link with the breach of the duty to advise.

CA Versailles, 7 March 1996, LawLex200600000738JBJ, holding that a professional seller cannot avoid liability by alleging the date of first registration on the vehicle registration document, in an attempt to justify his failure to inform his co-contractor correctly at the time of sale, whereas at the time of the preliminary discussions, he had relied on a complete expert report on the vehicle, which he had himself realized.

Cass. civ. 1re, 27 February 1985, LawLex200500005932JBJ, stating that the professional purchaser of a given material is bound by an obligation of information and advice towards the lay purchaser, from which he cannot exempt himself on the grounds that he received insufficient information from the manufacturer of the offending product; CA Toulouse, 7 March 2002, LawLex200800001484JBJ, noting that failure by the manufacturer of a new or recently marketed product to meet its obligation to provide information and advice does not relieve the distributor of its obligation to take the necessary steps to ensure that its customers are in possession of all the information and advice they need to use the product correctly.

Cass. civ. 1re, 24 November 1976, LawLex200500006108JBJ, holding that an intermediary seller whose liability has been incurred for breach of his obligation to inform the purchaser - having hidden the tampering with the vehicle's odometer - is nevertheless entitled to take action against the original seller, whom he knew to be the source of the tampering, since he himself was deceived into believing that the vehicle had covered 10,000 kilometers, as opposed to the actual 30,000.

Cass. civ. 1re, 15 May 2001, LawLex200500003682JBJ, noting that when a contract of sale is concluded between two professionals of different specialties, the seller cannot validly invoke the warranty disclaimer in the general terms and conditions of sale to avoid liability for a breach of his obligation to advise, even if the contract is directly related to the buyer's business.

CA Aix-en-Provence, 26 October 2006, LawLex200700000761JB.

Cass. com, 28 June 2005, LawLex200600002444JBJ.

CA Colmar, 7 September 2006, LawLex200700000758JBJ, noting that, in addition to the invalidity of the sale, the purchaser, having been the victim of fraud concerning the vehicle purchased, is entitled to receive a sum corresponding to the amount of the repairs carried out, as well as damages for inconvenience and loss of use.

Cass. com, 22 January 2020, LawLex202000000209JBJ : the seller's failure to meet his obligations to provide information and advice may, provided it is sufficiently serious, justify rescission of the sale; 19 December 2006, LawLex200800001445JBJ, ruling that the contract for the sale of a motor-vehicle exhaust gas analyzer must be rescinded to the detriment of the seller, who committed a serious breach of his delivery and information obligations by failing to specify in his documentation that it was essential for the buyer to take out a maintenance contract and purchase data annually to update the system.

CA Versailles, 17 March 2000, LawLex200800001510JBJ, holding that the sale must be rescinded if the car seller, by failing to meet his duty to inform, delivers a vehicle unsuited to the buyer's needs; CA Colmar, 16 October 2003, LawLex200800001473JBJ, pointing out that the professional seller, who owes his customer an obligation to provide information, included in the obligation to deliver to the latter a thing comprising, under the terms of Article 1615 of the Civil Code, what is destined for his perpetual use, breached this obligation by delivering to the buyer a powerful speed boat whereas the latter wished to acquire a boat capable of navigating canals, with the result that the sale must be rescinded; CA Douai, 4 March 2013, LawLex201300001100JBJ, holding that failure to inform the purchasers of a stove that it was not capable of heating their entire dwelling, and that the model recommended could only be used as a complement to a gas boiler, constituted a breach of the seller's obligation to inform of such gravity that it must result in the contract being rescinded; Cass. com., 31 January 2018, LawLex201800000657JBJ, holding that the seller is in breach of his obligations to advise and to deliver in conformity when he delivers a copier which, since it required twenty-one maintenance interventions in less than a year due to a problem of compatibility with the computer network, was manifestly unsuited to the purchaser's needs.

CA Toulouse, 1 March 2000, LawLex200800001509JBJ, ruling that the contract of sale must be rescinded when the professional seller of window blinds, bound by an obligation to provide legal information and advice, fails to draw the buyer's attention to the need to obtain administrative authorization for the installation of blinds in compliance with regulations, thus depriving him of any possibility of using the blinds ordered.

CA Grenoble, 10 December 2007, LawLex200800001277JBJ, holding that the approach taken by the professional vendor, which resulted in identifying the buyer's needs, but only informing him of the technical constraints once the contract had been signed by significantly amending the contractual terms and conditions, constituted a breach of his contractual obligations to provide information and to deliver in conformity, thereby justifying rescission of the contract.

Business Contracts

167. Sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

167. Sanctions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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