French Consumer Law is a comprehensive and comparative overview of French and EU law in this field, covering: advertising, unfair commercial practices, conditions for the validity of contracts, unfair terms, product conformity, latent defects, product safety.

French Consumer Law

Although in both cases, the commitment made must be contrary to the interests of the victim of the abuse of weakness, its characteristics differ according to whether the Consumer or Criminal Code are applied.
1)  Violation of the Consumer Code
Under Article L. 121-8 of the Consumer Code, the abuse of weakness may consist in having commitments made, either in cash or on credit, by a person who is n …

Commitment made

Unlike the offense of abuse of weakness sanctioned by the Criminal Code, which does not restrict its scope according to the mode of solicitation used by the professional , Article L. 121-8 (former Article L 122-8) of the Consumer Code punishes the abuse of a person's weakness or ignorance only when committed “by means of home visits” . Nevertheless, Article L. 121-9 (former Article L. 122-9) of the Consumer Code extends the system to various cases of solicitation of the consumer outside his home. This is the case of solicitation by telephone or fax, commitments made “following a personalized solicitation, without this solicitation necessarily being nominative, to go to a place of sale, made at home and accompanied by the offer of special benefits”, or “during meetings or excursions organized by the offender or for his benefit” , transactions made “in places not intended for the marketing of the good or service offered or within the framework of trade fairs or exhibitions”, or concluded “in an urgent situation having made it impossible for the victim to consult one or more qualified professionals, third parties to the contract”. Although the incrimination is thus superimposed on cases falling within the provisions of the Consumer Code relating to off-premises contracts , it also covers situations expressly excluded by them .

The concept of “home visits” raises no particular difficulties: in spite of the plural form used by the text, a professional may commit an abuse of weakness even though he has only made one visit to the victim's home , although the success of the stratagems used to abuse a vulnerable person often imply repeated visits .

Also comparable to a home visit required to characterize the abuse of weakness is the personal invitation to go to a private sale, allegedly reserved for the privileged , or the solicitation made by a first telephone contact with selected customers, followed by an invitation to a presentation sale in which they are promised a surprise gift . However, the text does not apply to the deposit of a prospectus in the mailboxes of individuals, as this advertising practice does not constitute a door-to-door selling operation, unlike the personalized proposal , or to the offer made physically at the home of the consumer, but received by him by post .

Finally, the abuse of weakness can be committed during an emergency repair, even though it is the victim who solicits the visit of the professional . Thus, a commitment made at night by a consumer with a major leak, when he is unable to consult a qualified professional or to compare market prices, is subject to the regulations on the abuse of weakness .

 Thus, in the absence of solicitation, the offense must be requalified and falls under the Criminal Code: see CA Montpellier, May 20, 2010, LawLex201400001959JBJ.

CA Rouen, 28 October 2010, LawLex201400001958JBJ.

CA Bourges, 10 September 2009, LawLex201400001970JBJ.

CA Paris, 12 December 2005, LawLex201500001406JBJ.

 For an example, see Cass. crim., 1 February 2000, LawLex200500005889JBJ.

 See inter alia. Consumer Code, Article L. 221-1, 2°, b) and c) (former Article L. 121-16, 2°, b) and c)), which define the "off-premises contract" as any contract concluded between a professional and a consumer in the place where the professional carries on his activity permanently or habitually or by means of a remote communication technique, immediately after the consumer has been solicited personally and individually in a place different from the one where the professional carries on his activity permanently or habitually and where the parties were physically and simultaneously present or during an excursion organized by the professional having the purpose or effect of promoting or selling goods or services to the consumer.

 See Consumer Code, Article L. 221-28, 8° (former Article L. 121-21-8, 8°), excluding from the right of withdrawal "maintenance or repair work to be carried out urgently at the consumer's home and expressly requested by him, within the limit of the spare parts and work strictly necessary to respond to the emergency". See also Consumer Code, Article L. 224-59 et seq, which excludes contracts concluded at fairs and exhibitions from the protective mechanism.

 See for example: Cass. crim., 26 October 1999, LawLex200300003652JBJ; March 8, 2016, LawLex201600000643JBJ.

 See for example: CA Grenoble, 2 November 1995, LawLex200500007176JBJ; Cass. crim., 5 August 1997, LawLex200300002662JBJ, upholding CA Paris, 13 May 1996, LawLex200300002571JBJ.

 Cass. crim., 19 February 1997, LawLex200500005895JBJ.

CA Limoges, 19 November 1997, LawLex200400000040JBJ; CA Toulouse, 9 October 1997, LawLex200300002614JBJ.

CA Toulouse, 17 November 2004, LawLex200500005694JBJ.

Solicitation

The sole fact of contracting as a result of solicitation of a person in a situation of vulnerability does not make it possible to characterize the offense of abuse of weakness. Article L. 121-8 (former Article L. 122-8) of the Consumer Code also requires that “the circumstances show that this person was not in a position to assess the scope of the commitments he made or detect the tricks or artifices used to convince him to subscribe or show that he was subjected to coercion”. Reciprocally, the sole fact of using tricks and maneuvers to convince is not sufficient, in the absence of the prior state of weakness of the victim . The maneuvers must be “tricks and artifices” that the vulnerable person, precisely because of this state, is unable to perceive. This is the case when the direct seller announces free loans and uses the successive intervention of several sellers assisted by pseudo-technical presentations to convince a person in a state of weakness to contract . Failure to provide information to prevent victims from measuring the scope of their commitment also falls under Article L. 121-8, as is the failure to deliver the duplicate of a loan contract , a receipt to the subscriber of bearer bonds and an insurance policy , failure to provide a legible indication of the total cost of the operation , or the non-delivery  or provision of a purchase order that is voluntarily inaccurate and incomplete .

The abuse of weakness may also result from the moral or physical coercion to which the victim is subjected by the perpetrator of the abuse of weakness. Repeated visits , insistent behavior accompanied by pressure , or the harassment of a couple in debt to have them sign a commitment  fall under the prohibition. The abuse may also consist in having the victims sign, in a very short period of time, so that they are unable to assess the commitment made , or in performing the work ordered extremely rapidly . The creation of an emergency situation is a frequent maneuver: this is the case of the professional who requires an elderly person to urgently pay for unnecessary and costly services, subject to destruction of the work carried out , or who uses a false argument relating to the presence of asbestos in the victim's house and stresses the urgency and the potential danger for his family, to force him to sign an estimate for work that is neither necessary nor urgent . Similarly, it is an abusive practice to coerce a vulnerable person in order to prevent him from cancelling the sale , or the false pretension of the delivery of a parcel, in order to enter the room of an elderly person and unpack the goods on his bed . However, it was held, on the basis of Article 223-15-2 of the Criminal Code, that while it is not debatable that due to the circumstances of the AZF disaster and the imperative need to carry out urgent work on walls and roofs, consumers may have found themselves psychologically weakened vis-à-vis persons offering them the fast execution of work, they had not, however, been placed in a state of psychological subjection .

 The offense implies that the state of weakness is prior to and not a result of the maneuvers: see Cass. crim., 19 February 1997, LawLex200500005895JBJ, overturning CA Bordeaux, 11 April 1995, LawLex200600001108JBJ and Cass. crim., 18 May  1999, LawLex200300003936JBJ, overturning CA Toulouse, 9 October 1997, LawLex200300002614JBJ. See also CA Poitiers, 22 January 1998, LawLex200400000155JBJ: the sole maneuvers, consisting of coercive sales processes, cannot constitute the offense of abuse of weakness in the absence of elements capable of establishing the particular vulnerability of the customers targeted.

CA Cass. crim., 17 September 2002, LawLex200300001028JBJ.

CA Limoges, 19 November 1997, LawLex200400000040JBJ.

CA Caen, 3 July 2009, LawLex201200001264JBJ.

CA Paris, 2 February 1998, LawLex200400001066JBJ.

CA Paris, 20 January 2011, LawLex201400002014JBJ, decision based on Article 223-15-2 of the Criminal Code. See also CA Paris, 24 March 2009, LawLex201200001452JBJ.

CA Rennes, 21 June  2001, LawLex200400000149JBJ.

CA Riom, 11 June 2003, LawLex201400001963JBJ.

CA Toulouse, 4 January 2005, LawLex201400002030JBJ.

CA Rennes, 21 June 2001, LawLex200400000149JBJ.

CA Montpellier, 12 May 1998, LawLex200500008845JBJ.

CA Paris, 13 May 1996, LawLex200300002571JBJ.

CA Angers, 8 December 2011, LawLex201400001935JBJ.

Cass. crim., 1 February 2000, LawLex200500005889JBJ; CA Poitiers, 26 June 2008, LawLex201200001338JBJ.

CA Rennes, 21 June 2001, LawLex200400000149JBJ. See also Cass. crim., 19 December 2001, LawLex200500005892JBJ, issued on the basis of Article 223-15-2 of the Criminal Code.

 Maneuvers

Although in both cases, the commitment made must be contrary to the interests of the victim of the abuse of weakness, its characteristics differ according to whether the Consumer or Criminal Code are applied.

Under Article L. 121-8 of the Consumer Code, the abuse of weakness may consist in having commitments made, either in cash or on credit, by a person who is not in a position to appreciate their scope. Article L. 121-10 also prohibits “the act of abusing a person's weakness or ignorance in order to obtain, without actual consideration, sums in cash or by transfer, bank or postal checks, payment orders by payment or credit card or securities, within the meaning of Article 529 of the Civil Code”.

In the first place, the abuse of weakness of the Consumer Code implies that a commitment is made. While the text does not contain such a restriction, case law has interpreted this condition as exclusively concerning a purchase by the consumer and considered that Article L. 121-8 did not apply when the ruses deployed by the direct seller were intended to incite the consumer to sell a good at a price much lower than its real value .

Secondly, case law equates to “circumstances (which) show that (the victim) was not in a position to assess the scope of the commitments he made”, the entering into a detrimental, exorbitant or unnecessary commitment . The abusive nature of the operation is sometimes evident: this is the case when the direct seller sells to a very elderly person an excessive number of household appliances, some of which are identical , or to infirm persons, unemployed and living alone, costly and unnecessary equipment intended to filter and save water , has the victim replace a fire extinguisher sold the previous year and purchase maintenance contracts for a total of nearly EUR 900 over a period of 19 months, when his monthly income is only 450 Euros  or has a vulnerable person unable to appreciate the scope of his commitments to take out unnecessary and superfluous loans .

-  to a 74-year-old person of several alarm systems at an exorbitant cost and of doubtful utility both with regard to the modesty of her lifestyle and the absence of delinquency in the small rural commune in which she lives ,

-  to an alcoholic, at an expressive price, of clothing and carpets, of which he has no need ,

-  to a disabled adult, of moveable property devoid of any utility and at a cost disproportionate to his resources ;

-  to an elderly couple, of kitchen elements they do not use and which, moreover, make their kitchen inaccessible ;

- to a person with hearing and cognitive  problems and who is easily influenced, of a satellite dish, air conditioning, a home cinema, two alarms, two video sets, a second air conditioning system and a second home cinema .

Indeed, direct sellers should not take advantage of the state of weakness of their customers to have them place orders out of proportion with their needs and financial possibilities . Nevertheless, any commitment that does not exactly correspond to the expectations of the customer in a state of weakness should not be considered as prejudicial. In the absence of abusive maneuvers or coercion, a good delivered, which is neither unnecessary nor excessively priced, does not fall under the offense of abuse of weakness .

While the Consumer Code does not require, for the offense of abuse of weakness to be constituted, that the commitments made by the victims have caused them serious injury , the offense provided for by the Criminal Code implies the adoption of an act or abstention that is “seriously prejudicial” to the victim. Serious prejudice is established where the victim has taken out, against his will, a life insurance policy which dispossesses him of virtually all his bank assets constituting his immediate cash , has issued a power of attorney over his estate and draws up a will which gives the accused free disposal of his property , has authorized withdrawals from his bank accounts and home savings plan , has handed over to a clairvoyant sums that are disproportionate to his means , has paid his entire savings to the accused , or has been victim of the embezzlement of a significant part of his estate . Pursuant to Article 223-15-2, the act obtained from the victim must only be of a nature to cause him serious harm; it is not necessary for the damage to have been actually incurred . However, the injury must in principle have been suffered by the victim of the abuse of weakness, and not by a third party . Nevertheless, the Court of Cassation considers that the fact that a vulnerable person has designated as beneficiary of his life insurance the person having led him to do so, constitutes a seriously prejudicial act, even if this prejudice seems to have been suffered more by the initial beneficiaries than by the disponor .

CA Agen, 11 March 1996, LawLex200500009026JBJ, and on referral after cassation by the Cass. crim., December 18, 1996, LawLex201500001408JBJ, CA Bordeaux, 13 May 1998, LawLex201400002041JBJ; cf. CA Rouen, 4 September 2013, LawLex201400001986JBJ, sanctioning the direct seller who attempted to buy a property at a clearly undervalued price from a consumer in a state of weakness, but the decision is based on Article 223-15-2 of the Criminal Code.

 CA Paris, 2 February 1998, LawLex200400001066JBJ; CA Angers, 6 November 2007, LawLex201200001228JBJ: for the order placed by people with mental deficiencies of unnecessary work at exorbitant prices.

Cass. crim., 19 November 2019, LawLex201900001421JBJ.

 Cass. crim., 17 September  2002, LawLex200300001028JBJ. See also Amiens, 13 November 2015, LawLex201500001487JBJ.

 CA Toulouse, 17 November 2004, LawLex200500005694JBJ.

 CA Caen, 3 July 2009, LawLex201200001264JBJ.

 Cass. crim., 19 December 2001, LawLex200500005892JBJ.

 Cass. crim., 15 November 2005, LawLex200700001341JBJ; 16 December 2014, LawLex201500001423JBJ.

 Cass. crim., 10 October 2006, LawLex200700001343JBJ.

 CA Montpellier, 20 May 2010, LawLex201400001959JBJ.

 Cass. crim., 27 October 2015, LawLex201500001420JBJ.

 Cass. crim., 8 February 2012, LawLex201200000974JBJ.

 CA Grenoble, 2 November 1995, LawLex200500007176JBJ.

 Cass. crim., 12 January 2000, LawLex200700001344JBJ.

 CA Bordeaux, 13 May 1998, LawLex201400002041JBJ a child had been led to sell, on the stand of a fair, a fountain belonging to his aunt for a derisory sum.

 Cass. crim., 10 November 2015, LawLex201500001488JBJ.

 CA Aix-en-Provence, 7 May 2008, LawLex201200001528JBJ.

 CA Dijon, 10 February 2000, LawLex201400002029JBJ. See also CA Montpellier, 8 March 2001, LawLex201400001961JBJ, sanctioning the accused who had the consumer enter into a superfluous commitment given the one he had charged the consumer for two weeks earlier; CA Paris, 11 January 2005, LawLex201400001962JBJ, Contrats Conc. Consom. 2005, No 195, obs. RAYMOND, for the sale of the same alarm one month previously.

 CA Lyon, 7 May 1999, LawLex200300002757JBJ.

 Cass. crim., 19 April 2005, LawLex201400000652JBJ; CA Rouen, 4 September 2013, LawLex201400001986JBJ.

 CA Angers, 8 December 2011, LawLex201400001935JBJ.

 CA Montpellier, 8 March 2001, LawLex201400001961JBJ. See also CA Colmar, 16 April 2012, LawLex201500001416JBJ: the direct seller who obtains the purchase of a succession of contracts concerning similar work within a very short period of time from the same person, abuses his state of weakness by his aggressive commercial methods.

 See CA Rennes, 21 June 2001, LawLex200400000149JBJ.

French Consumer Law

211. Commitment made

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211. Commitment made

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