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

Contractual liability assumes the existence of a contractual relationship between the parties. In the case of advertising lotteries, it lies in the existence of a unilateral commitment taken by the lottery organizer to deliver the promised gain . In the absence of game rules or any other element likely to establish the randomness of the gain, the promotional documents characterize the offer. The acceptance of the offer by the consumer results from the claim of the prize under the conditions of form and duration provided for in the documents transmitted . The meeting of the wills of the participant and the lottery organizer obliges the latter to issue the promised prize free of charge . Failure to fulfill the obligation of delivery may give rise to performance in kind, i.e. the award of the promised object or sum, or an equivalent execution in damages , to which damages for late performance may be added.

However, the lottery organizer must demonstrate a genuine desire to commit. Pursuant to the general principles of contract formation, the offer of delivery of the promised prize must be certain, firm and definitive . The advertising material which presents the advertising lottery must be sufficiently detailed to constitute a precise and complete offer likely to give rise to the acceptance of the consumer . The lottery organizer is thus contractually obliged to pay its customer the promised sum, once it has indicated in an affirmative and unambiguous manner that the customer has won the promised sum or goods . For a long time, the confusion deliberately maintained in the minds of consumers by the lottery organizer to persuade them that they had won a prize, led the judges to admit the existence of a contract. The Court of Cassation, however, hesitated. In three judgments dated October 19, 1999 , it found that the ambiguous nature of the advertising documents sent to the consumer demonstrated the absence of the unilateral will of the lottery organizer to deliver the prize in question. The Court then upheld the contractual liability of the organizer of an advertising lottery on the grounds that the deliberate obscurity of the wording of the advertising documents demonstrated its commitment to pay the promised amounts .

For the consumer, the contractual basis appears particularly favorable: not only does he not have to establish the existence of the damage, but its amount is equal to the value of the expected goods. Proof of the lottery organizer's breach of its contractual obligations is also easy to provide. The fault of the lottery organizer systematically results from the non-fulfillment of the obligation and the failure to obtain the result  and is interpreted as a breach of the duty to execute agreements in good faith laid down in Article 1104 (former Article 1134, paragraph 3) of the Civil Code . The participant is thus assured of automatically obtaining full compensation. 

Despite its protective nature for the consumer and deterrent nature for the professional, the use of the contractual basis is criticized from a legal point of view, because it results in a genuine “forcing” of the contract. The formation of a contract implies a prior agreement of wills. However, it may be difficult to believe that the lottery organizer, most often a mail-order professional, can issue the “prize” to all recipients of the advertising documents. In addition, automatic compensation is used by bad faith consumers who claim the award of their prize on the basis of Article 1231-1 (former Article 1147) of the Civil Code, despite the crudeness of the advertising trick. Some commentators have thus suggested the use of the theory of appearance . In accordance with this doctrine, the consumer, who has legitimately believed in the reality of the gain due to a misleading presentation of the promotional documents, can avail himself of the appearance of a contract to claim the prize, with acceptance by return of the entry form forming the contract.

The Court of Cassation finally ruled out the theory of appearance, favoring instead the quasi-contractual liability of the lottery organizer on the basis of Article 1371 (now Article 1300) of the Civil Code  and thus enshrined a new quasi-contract.

 See CA Douai, 10 February 1993, LawLex200300002471JBJ; Cass. 1re civ., March 28, 1995, LawLex200300002406JBJ. See Case C-96/00 Gabriel, Judgment of 11 July 2002, LawLex200900001213JBJ: application of the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters to an action in contractual liability brought by a consumer against a mail-order company domiciled in another Member State in a case where the promise of a gain is related to an order of goods; Case C-27/02 Engler, Judgment of 20 January 2005, LawLex200900001364JBJ, which retains the jurisdiction of the court in the place where the obligation on which the request is based has been or will be performed. In so doing, the European Court retains a broad interpretation of the concept of "contractual matter" referred to in Article 5 of the Convention since the identification of a legal obligation voluntarily granted by a person is sufficient to characterize a contractual action, the final qualification of the commitment lying with the national court.

 Cass. 2e civ., 11 February 1998, LawLex200300002425JBJ, upholding the reasoning of the appeal judges who substituted the tort basis retained by the first instance judges for a contractual basis. See also CA Toulouse, 14 February 1996, LawLex200300002526JBJ: the organizer of an advertising lottery is contractually obliged to pay the promised amount to its client insofar as it operates according to a clearly deliberate and conscious commercial strategy and cannot misunderstand the scope of its commitment clearly displayed and reiterated; CA Pau, 17 June 1998, LawLex200300003602JBJ: identification of the conclusion of a contract by the return of the entry form.

 See CA Paris, 29 October 1998, LawLex200300002461JBJ: in this case, the customer had received a letter by which a sales company undertook to deliver him a prize consisting of a car, on the condition that the participant discovered "3 suns" by scratching a specific place of the document. The customer, by returning the entry form, turned this offer into a contract. "Whereas contracts must be executed in good faith. The parties must act fairly towards one another, without fraud or malice" [...]. Whereas it is thus established that the SA Movitex was not a loyal contractor, since it did not clearly and accurately inform Ms. Van Den Abeele of her minimal chances of winning the first prize in the "Prestige" category, despite her pre-selection, but also that its actions constituted misleading advertising; in so doing, the SA Movitex incurred its liability [...]".

 Qualified by some as quasi-contract, and in particular by BÉNABENT, Droit civil, Droit des obligations, Montchrestien, 13th ed., 2012.

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

 CA Rouen, 23 May 2001, LawLex200400001189JBJ.

 Cass. com., 26 November 1991, LawLex200300002405JBJ, upholding CA Aix-en-Provence, 8 March 1990, LawLex200300002462JBJ; Dijon, 12 May 1995, LawLex200300002473JBJ; Caen, 24 March 1998, LawLex200300002490JBJ, dismissing any contractual basis for the action on the grounds that "The appellant's pleas, based on the final nature of the contracts given his acceptance of a specific and complete offer, are [...] inoperative when even assuming that the document received could be analyzed as an offer, it certainly does not relate to the certain award of the main prizes".

 CA Caen, 24 March 1998, LawLex200300002490JBJ, dismissing any contractual basis for the action on the grounds that "The appellant's pleas, based on the final nature of the contracts given his acceptance of a specific and complete offer, are [...] inoperative when even assuming that the document received could be analyzed as an offer, it certainly does not relate to the certain award of the main prizes".

 CA Grenoble, 28 October 1996, LawLex200300002476JBJ: the absence of rules of an advertising lottery and other elements making it possible to detect the hypothetical nature of the gain characterizes a firm offer to deliver the prize promised, the expression, by the recipient of the game, of his acceptance, in writing and within the allotted time, validating the conclusion of the contract.

 Cass. 2e civ., 11 February 1998, LawLex200300002425JBJ, noting that the lottery organizer operates according to a clearly deliberate and conscious commercial strategy.

 Cass. 1re civ., 19 October 1999, LawLex200300002413JBJ; 19 October 1999, LawLex200300002410JBJ and LawLex200300002409JBJ. 

 Cass. 1re civ., 12 June 2001, LawLex200300003373JBJ.

 Cass. 2e civ., 11 February 1998, LawLex200300002425JBJ.

266. Contractual liability