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

Some clauses of the game rules may be deemed unwritten on the grounds of Article L. 212-1 (former Article L. 132-1) of the Consumer Code, which provides that a clause is unfair when it has the purpose or effect of creating, to the detriment of the non-professional or consumer, a significant imbalance between the rights and obligations of the parties to the contract. Conviction on the basis of unfa …

Application of Article L. 212-1 of the Consumer Code

Some clauses of the game rules may be deemed unwritten on the grounds of Article L. 212-1 (former Article L. 132-1) of the Consumer Code, which provides that a clause is unfair when it has the purpose or effect of creating, to the detriment of the non-professional or consumer, a significant imbalance between the rights and obligations of the parties to the contract. Conviction on the basis of unfair terms has the advantage of rendering the disputed clause(s) of the rules unenforceable towards consumers as a whole.

The action for the removal of unfair clauses can be initiated either by an injured consumer, or by a consumer association. Article L. 621-8 (former Article L. 421-6, paragraph 2 of the Consumer Code authorizes approved consumer associations to apply to the civil courts for the removal of an illegal or unfair clause in any contract or type of contract proposed or intended for the consumer, without the need to establish any individual damage or injury to the collective interest of consumers. Prosecution on the basis of unfair terms, rather than under the regulations on unfair lotteries, allows consumer associations to act preventively without waiting for a consumer to take legal action .

The requirement of a contractual relationship between the professional and the consumer to take action for the removal of unfair terms no longer poses any difficulty since the Court of Cassation considered as a quasi contract announcing a prize to a named person without mentioning the existence of chance . According to the Paris Court of Appeal, the stipulation of the game rules of an advertising lottery that “the mere fact of participation implies outright acceptance of the rules and instructions contained in the documents” constitutes an unfair clause within the meaning of Article L. 212-1 of the Consumer Code, since its presentation in the form of a compact block of fifteen articles in small print, barely legible, can only discourage the reasonably well-informed consumer from reading the rules, even if the lottery organizer has taken the precaution of warning the consumer of the need to do so . This analysis is in line with case law which traditionally considers that illegible rules are unenforceable to the consumer on the grounds that he was not really able to read them .

The clause of the rules of an advertising lottery which qualifies as force majeure the material error made in good faith by a member of its staff or service provider external to the mail order company at the origin of the promotional operation is also unfair , since it extends the concept of force majeure to cases external to it and allows the lottery organizer to release itself at its discretion from all its commitments to the consumer. Similarly, the stipulation that subordinates the delivery of the prize to the acceptance by the winner of the advertising use of his name, address and photograph, must be deemed unwritten to the extent that the clause requires the winner to waive the protection of privacy afforded to him by Article 9 of the Civil Code in exchange for the delivery of his prize .

 On the principle of the exclusively preventive nature of their action, see Cass. 1re civ., 1 February 2005, LawLex200500004133JBJ.

 See Cass. ch. mixte, 6 September 2002, LawLex200300002549JBJ.

 CA Paris, 19December  2003, LawLex200400001105JBJ, upholding TGI Paris, 13 February 2002, LawLex200300002564JBJ, noting that the reasonably diligent consumer with an average capacity of understanding cannot distinguish in colored characters, in large print, the stipulations constituting instructions from those which are only of an informational, or even incentive nature.

 Illegible rules are traditionally regarded as unenforceable toward the consumer on the grounds that he was not really able to read them (see CA Grenoble, 30 January 2006, LawLex200600001352JBJ: concerning rules in very small print with a compact text without any spaces or line breaks). The scope of the regulation is often put into perspective with the presence of numerous advertising documents that are personalized, affirmative, attractive and with different colors and print sizes depending on the nature of the information communicated: see CA Montpellier, 18 October 2005, LawLex200600001342JBJ, opposing against the rules provided in small characters a set of documents, declaring affirmatively and unequivocally, the award of a unique, official and definitive cash prize, intended for the sole nominatively designated winner.

 TGI Paris, 13 February 2002, LawLex200300002564JBJ.

French Consumer Law

263. Application of Article L. 212-1 of the Consumer Code

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263. Application of Article L. 212-1 of the Consumer Code

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