Business Contracts

According to the Court of Cassation, application of the obligation to provide information and advice must be assessed on the basis of the status of the parties to the contract, their respective skills and the relationship between them .  
1) Non-professional purchaser
The protection afforded by case law to the non-professional purchaser is very extensive. According to the courts, the gifts and qua …

Scope

According to the Court of Cassation, application of the obligation to provide information and advice must be assessed on the basis of the status of the parties to the contract, their respective skills and the relationship between them .  

The protection afforded by case law to the non-professional purchaser is very extensive. According to the courts, the gifts and qualities displayed by a painter do not necessarily imply his competence and technical skill when it comes to the composition of the products he uses . If the seller is also a knowledgeable professional, his obligation to inform and advise is further strengthened. Thus, a highly specialized and particularly experienced professional seller has a duty to inform the non-professional purchaser in the field, to whom he or she must provide complete and reliable information on the essential characteristics of the property sold, making all necessary inquiries, if appropriate, from the manufacturer in order to do so, and carrying out all appropriate checks to ensure that they are accurate . Furthermore, the presence of a professional alongside the lay buyer does not release the seller from his obligation to advise . For example, a lay buyer who was unable to detect the damage caused by wood-boring insects on his own did not commit a fault of carelessness or negligence that contributed towards the damage, even though he was accompanied on the visit by a carpenter who was not a structural specialist .

Conversely, the degree of the obligation to inform diminishes when the buyer is a professional in the trade . In addition, where the professional purchaser has signed a disclaimer, he may be deprived of the possibility of taking action against his seller for breach of his duty to inform . According to the Court of Cassation, the manufacturer's/seller's obligation to inform the professional purchaser only exists insofar as the latter's technical expertise does not enable him to determine the exact characteristics of the products purchased , and in particular their technical features  and their suitability for use, or if the purchaser does not have the same specialization . Similarly, the manufacturer of a new product is obliged to provide the purchaser, even if he or she is a professional user of the product, with the information necessary for its use, and to inform him or her, where appropriate, of the risks that may result . The protection extended by the courts disappears if the seller and purchaser possess a comparable level of expertise  or if the seller contracts with a well-informed professional purchaser , who in this case is even obliged to take steps to obtain information from the seller .  Thus, a tourist accommodation company cannot accuse the seller of a product it has purchased to deodorize its carpets of breaching its duty to inform, since the label on the back of the product forbids its use on textiles, and it cannot claim ignorance of the fact that carpets are textiles, particularly in its capacity as a professional responsible for their maintenance  . Furthermore, the professional purchaser must inform the seller of the intended use of the product , the particular specifications he requires  and take the necessary precautions if he intends to use the product in a particular way . According to the Court of Cassation, professional purchasers who choose to use technical-grade hydrochloric acid in their food processes must ensure that the acid in question is compatible with their intended use, by asking the seller for its characteristics and specifications . In addition, even if the manufacturer has a legal responsibility to provide information on the suitability of the goods sold for their intended use, the mere fact that the goods were delivered to the customer's premises during construction work does not mean that the manufacturer was aware of the future use of the runway by large aircraft .

Cass. com., 5 December 2000, LawLex200800001449JBJ.

Cass. civ. 1re, 23 April 1985, LawLex200500005936JBJ.

Cass. com. 27 November 2019, LawLex202000000012JBJ; CA Toulouse, 7 March 2002, LawLex200800001484JBJ.

Cass. com, 16 October 2012, LawLex201300001096JBJ, holding that an undertaking which sold insecticide equipment unsuited to local conditions to a professional reseller did not breach its obligation to inform, since, by marketing the products in a specific geographical area, the reseller was supposed to be aware of the specific conditions of the markets, in particular the characteristics of the power supply, in order to adapt its purchases; Cass. civ. 1re, 10 April 2013, LawLex201300001117JBJ, the liability of the manufacturer selling an unsuitable heat pump cannot be incurred by the reseller when the latter, in view of his expertise, was in a position to understand that the example of performance given by the manufacturer corresponded to optimal theoretical conditions not met in the case in point.

Cass. civ. 1re, 3 June 1998, LawLex200500005852JBJ, stating that the manufacturer/seller is not bound by an obligation to provide information to a professional seller who has the necessary skills to assess the technical characteristics of the products delivered to him, and whose responsibility it is to take all necessary measures to ensure that the public is properly informed.

Cass. civ. 1re, 6 March 1996, LawLex200500006095JBJ; CA Aix-en-Provence, 27 September 2001, LawLex200800001507JBJ, holding that an arborist, with regard to the seller's obligation to advise, must be regarded, at most, as an informed user required to inform himself; CA Grenoble, 16 October 2018, LawLex201800001563JBJ : if the manufacturer is obliged to deliver all the information relating to the product it markets, it is the responsibility of the reseller-installer, a professional in the same speciality, to consult the said notice, and if he has not received it, to obtain it.

Cass. com., 14 June 2016, LawLex201700000490JBJ.

CA Reims, 27 April 2007, LawLex200800001441JBJ; CA Metz, 30 September 2007, LawLex200800001533JBJ.

CA Nouméa, 14 October 2002, LawLex200800001481JBJ.

Cass. civ. 1re, 28 November 2000, LawLex200500006091JBJ. 

Cass. com, 23 November 2022, LawLex202200010639JBJ.

CA Paris, 7 June 2019, LawLex201900000830JBJ.

CA Versailles, 7 March 1996, LawLex200600000738JBJ.

Cass. com, 19 February 2008, LawLex200800001561JBJ, holding that the presence of an IT professional at a customer's side to assist him in his choices does not dispense the designer of a software package from his duty to inform his customer, to enable him to make the appropriate decision for his situation.

CA Dijon, 9 May 2017, LawLex201700000924JBJ.

However, a lay seller who conceals information is in breach of his duty to inform, even towards a professional, see Cass. civ. 1re, 24 November 1976, LawLex200500006108JBJ.

CA Toulouse, 23 January 2008, LawLex200800001438JBJ, noting that the owner of a pizzeria, when equipping himself with a remote surveillance system, cannot invoke a breach by the vendor of his duty to advise, after having signed a clause in the special terms and conditions of the contract stating that he acknowledges having freely and under his sole responsibility determined the choice and quantity of equipment.

Cass. civ. 1re, 21 March 2000, LawLex200500006001JBJ. 

Cass. com, 4 July 2018, LawLex201800001373JBJ: the seller's duty to inform and advise his customer on the suitability of the equipment sold for the use for which it is intended exists with regard to the professional purchaser only insofar as his competence does not give him the opportunity to appreciate the exact scope of the technical characteristics of the device in question; CA Rennes, 19 January 2021, LawLex202100000217JBJ: the seller's duty to advise a professional purchaser is limited to those aspects of which the latter cannot be aware due to their technical nature.

Cass. com. 9 April 2013, LawLex201300001138JBJ: a company specializing in industrial filtration equipment is obliged to draw the attention of its contractor, when he does not have the same specialty, to the risks incurred if the latter does not choose the option proposed to him by the undertaking.

Business Contracts

166. Scope

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

166. Scope

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise