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French Consumer Law

According to Article 121-3 of the Criminal Code, “there is no crime or offense without the intention to commit it”. The abuse of weakness, whether sanctioned under the Consumer Code or the Criminal Code, does not escape this rule .
Thus, the professional must not have been unaware of the state of weakness of the victim. The intentional element of the offense is therefore not constituted when it is …

 Knowledge of the state of weakness

According to Article 121-3 of the Criminal Code, “there is no crime or offense without the intention to commit it”. The abuse of weakness, whether sanctioned under the Consumer Code or the Criminal Code, does not escape this rule .

Thus, the professional must not have been unaware of the state of weakness of the victim. The intentional element of the offense is therefore not constituted when it is established that the victim's Alzheimer's was not detectable by a third party, as, according to the statements of the daughter, “you would never guess” . Similarly, the consumer who does not demonstrate that the service provider was aware of his depressed state or fragility cannot invoke an abuse of weakness . The offense of abuse of weakness was also not found to have been constituted in a case where the accused only acknowledged that he was aware that the victim did not understand the deed of proxy that she signed in his favor, as this circumstance was insufficient to demonstrate the apparent nature of the state of weakness and its knowledge by the accused, and therefore to characterize the fraudulent intent .

However, the offense is characterized when the state of weakness of the victim is so obvious that the accused could not fail to be aware of it . It was thus found that the existence of psychiatric disturbances associated with neurological disorders or irreversible alterations of the cognitive functions and the psychic equilibrium of the person marketed are necessarily apparent to the direct seller and cannot be overlooked by him . The physical state of the elderly person, who uses a cane and cannot climb on his roof to verify his alarmist allegations, also cannot be overlooked by the direct seller . Similarly, the direct seller who tries to buy a property at a price that is obviously undervalued from a consumer cannot be unaware of his state of weakness when, having known him for many years, he previously had him place several unnecessary orders . This is especially the case when the alcoholism of the person solicited is obvious and the direct seller offered him a drink at the time of payment of his purchases . The lack of knowledge of the French language of the person solicited is necessarily apparent to the direct seller , as well as the senility of an elderly person to the accused who has had medical training , or the impaired speech and understanding of the person who suffers from a loss of the sense of reality .

The non-delivery of purchase orders or invoices, the absence of a right of withdrawal or the immediate collection of a payment can also establish the criminal intent . However, the sales method implemented in violation of the law on door-to-door selling, in particular a breach of the obligation to conclude a contract signed and dated by the customer himself, does not constitute the offense of abuse of weakness in itself, when it has not been deliberately designed for this purpose . 

Finally, the intentional element is characterized when the manager of a company, alerted by persons solicited of the practices implemented by one of its employees, does not put an end to it .

 See, however, CA Paris, 12 December 2005, LawLex201500001406JBJ, considering that this condition is not required by the Consumer Code.

 CA Paris, 20 January 2011, LawLex201400002014JBJ, judgment on basis of Article 223-15-2 of the Criminal Code. See also CA Toulouse, 8 November 2001, LawLex200500007173JBJ and CA Paris, 31 March 2016, LawLex201600000832JBJ.

 Cass. crim., 7 October 2009, LawLex201500001415JBJ, decision based on the provisions of Article 223-15-2 of the Criminal Code.

 CA Amiens, 13 November 2015, LawLex201500001487JBJ.

 CA Riom, 11 June 2003, LawLex201400001963JBJ.

 CA Paris, 8 September 1998, LawLex200400001228JBJ.

 CA Paris, 12 December 2005, cited above.

 CA Pau, 26 September 2013, LawLex201500001390JBJ. - See also, on the basis of Article 223-15-2 of the Criminal Code, Cass. crim., 27 May 2004, LawLex200400001542JBJ.

 Cass. crim., 6 September 2005, LawLex200700001342JBJ, judgment based on Article 223-15-2 of the Criminal Code.

 CA Montpellier, 8 March 2001, LawLex201400001961JBJ; Cass. crim., 29 April 2003, LawLex201400000653JBJ.

 CA Paris, 20 January 2011, cited above, on basis of  Article 223-15-2 of the Criminal Code.

 CA Paris, 24 March 2009, LawLex201200001452JBJ.

 CA Rouen, 4 September2013, LawLex201400001986JBJ, solution based on Article 223-15-2 of the Criminal Code.

 CA Angers, 8 December 2011, LawLex201400001935JBJ.

 CA Rennes, 21 June 2001, LawLex200400000149JBJ.

French Consumer Law

212. Knowledge of the state of weakness

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212. Knowledge of the state of weakness

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise