Business Contracts

According to the report to the French President on the reform of contract law , the pre-contractual obligation to provide information is established independently of the duty of good faith.
Article 1112-1 of the Civil Code states: "A party who is aware of information whose importance is decisive for the other party's consent must inform the other party if the latter is legitimately unaware of the  …

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According to the report to the French President on the reform of contract law , the pre-contractual obligation to provide information is established independently of the duty of good faith.

Article 1112-1 of the Civil Code states: "A party who is aware of information whose importance is decisive for the other party's consent must inform the other party if the latter is legitimately unaware of the information or has confidence in the other party. 

However, this duty to inform does not apply to the estimation of the value of the service.

The onus is on the party claiming that information was owed to prove that the other party was obliged to provide it, with the onus on the other party to prove that it was provided (...)".

It follows from this text as applied to sales that the creditor of the pre-contractual information obligation - i.e. normally the purchaser - must establish the existence of information determining his consent to the sale, his legitimate ignorance or the bond of trust linking him to his co-contractor, and the debtor's knowledge of such information, in order to be successful in court. This is also the position adopted by the Court of Cassation, which ruled that the two criteria must be interpreted cumulatively: information falls within the scope of the obligation to disclose only if it has both a direct and necessary link and is of decisive importance for the consent of the other party to the contract .

In the case of the debtor of the pre-contractual information obligation, usually the seller, there is an obligation to inform the potential buyer if he or she possesses vital information that could cause the buyer to have doubts to such an extent that he or she would consider abandoning the sale or renegotiating its terms. This information must be legitimately unknown to the person who claims to be harmed, or who trusted the other party. Ignorance is considered legitimate if it is difficult to obtain the information that determines consent. Thus, the purchasers of an apartment on the third floor of a building with a view of the hills, who, after buying it, discovered that work was being undertaken to raise the height of the neighboring building, are not entitled to claim that the vendor failed in his obligation to provide pre-contractual information. This is because the building permit issued by the owner of the neighboring property was clearly and prominently displayed on the public highway with regard to the total height of the building being raised, and the seller was not required to provide additional information about the work in progress . Similarly, the sellers cannot be accused of having failed in their duty to provide pre-contractual information concerning the existence of problems in the building covered by the promissory sale agreement, since the concealment of such information is refuted by the fact that they had authorized the plaintiffs to live in the premises before signing the deed of sale, which was the surest way for them to discover the allegedly concealed issues . Moreover, the information required under Article 1112-1 of the Civil Code concerns a circumstance or a significant fact of which one party is not expected to be aware and therefore about which would not have thought to ask its contracting partner, which is not the case for property tax or for the indication of an incorrect amount thereof, the intentional nature of which has not been demonstrated . Conversely, the fact that a vehicle originates from abroad and that, consequently, an ecological penalty must be paid by the purchaser upon its first registration in France constitutes essential information, within the meaning of Article 1112-1 of the Civil Code, which must be disclosed to the purchaser by the seller .

The courts have held that the decisive nature of information intentionally omitted must be assessed not only in relation to the persons concerned, but also in relation to the circumstances in which consent was given . Thus, the subsidiary of a group which, having acquired a building for commercial use on condition that the lessee, belonging to the selling group, be renewed and that his obligations be guaranteed by another undertaking of the same group, does not demonstrate that it was the victim of an intentional concealment of information crucial to its consent - namely the imminent default of the lessee and the guarantor - by its seller. This is because, on the one hand, she was aware of the fragility of the lessor's guarantee, and simply referred to the impossibility of obtaining any guarantee from the parent company itself, and, on the other hand, it was impossible for the seller to predict that both the guarantor and the lessee undertaking would be subject to insolvency proceedings . On the other hand, a breach of the pre-contractual obligation to provide information was committed when the sellers sold a plot of land as a building site, concealing from the purchasers the existence of a quarry in the subsoil making it not suitable for construction, even though they themselves had filled in the entrance to the quarry before turfing the area .

Report to the President of the Republic on Ordinance No 2016-131 of 10 February 2016 reforming the law of contracts, the general regime and proof of obligations, OJ of 11 February 2016.

Cass. com., 14 May 2025, LawLex202500003875JBJ.

CA Aix-en-Provence, 25 January 2022, LawLex202200008247JBJ.

CA Versailles, 6 January 2022, LawLex202200003403JBJ.

CA Douai, 1 February 2024, LawLex202400000852JBJ.

CA Aix-en-Provence, 1 February 2024, LawLex202400000872JBJ.

CA Aix-en-Provence, 25 January 2022, LawLex202200008247JBJ, above.

CA Paris, 6 October 2021, LawLex202200009740JBJ, specifying that the intentional concealment of the lessee's and guarantor's imminent default by the latter's parent company, as a third party to its subsidiary's sales agreement and unable to be accused of interfering in its management, was not established either, since the latter was under no obligation to provide information.

CA Amiens, 14 December 2021, LawLex202200008245JBJ.

Business Contracts

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