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

In practice, the organizer of an unfair advertising lottery may be subject to criminal prosecution under the Consumer Code. Its civil liability may also be incurred, on a tort, contractual or quasi-contractual basis. For more than ten years, most convictions have been based on Article 1371 (now Article 1300) of the Civil Code.
Whatever the basis used  to sanction a lottery, the trial courts assess …

 Reference consumer

In practice, the organizer of an unfair advertising lottery may be subject to criminal prosecution under the Consumer Code. Its civil liability may also be incurred, on a tort, contractual or quasi-contractual basis. For more than ten years, most convictions have been based on Article 1371 (now Article 1300) of the Civil Code.

Whatever the basis used  to sanction a lottery, the trial courts assess the misleading nature of the advertising messages addressed to participants by referring to the average, reasonably well-informed and diligent consumer . The recipient of an advertising lottery, a reasonably well-informed consumer, is not supposed to be distrustful in principle of the artifices used by advertisers, who are required to address their potential customers in terms not likely to create confusion in their minds . Although the judges have sometimes qualified him as “more vulnerable that the prudent man” , the average consumer is still supposed to demonstrate a minimum of attention, without having to be meticulous or show a certain distrust .

In accordance with the requirement of good faith which is imposed on him , the average consumer is supposed to carefully  read all the documents sent to him, even in small, condensed print, without limiting himself only to the enticing formulas . Only illegible, concealed or ambiguous rules cannot be enforced against him. The participant in a lottery is considered to be the author of his own injury, when he could not have been mistaken as to the random nature of the gain if he had taken the trouble to read the documentation received . He also cannot be legitimately misled when the documents are hyperbolic or excessive, and cannot really give rise to any belief in the award of a prize . Finally, a consumer who, in bad faith, has attempted to take advantage of a pseudo-prize to which he knew he was not entitled cannot obtain compensation and risks having the action declared abusive .

Decisions on the extra-contractual liability of the organizer of the lottery are very favorable to the consumer. Indeed, while some trial courts require that the legitimate belief of the quasi-contracting recipient in the reality of his prize be established , the Court of Cassation recalled that it is sufficient that the random aspect is not apparent on the first reading, from the announcement of the prize, to incur the liability of the organizing company, without the consumer being required to carefully read the game and the full rules to remove the misleading ambiguity of the documents . 

 On the basis of Article 121-1 (now Article L. 121-2) of the Consumer Code: Cass. crim., October 12, 1999, LawLex200300002447JBJ; - Article 1382 (now Article 1240) of the Civil Code: CA Nancy, 8 September 2005, LawLex200600001495JBJ; - Article 1371 (now Article 1300) of the Civil Code: CA Angers, 14 September 2005, LawLex200600001295JBJ. See, however, for an in concreto assessment setting aside the good faith of the quasi-contractor recipient of the lottery, CA Riom, 12 October 2011, LawLex201200001259JBJ and CA Paris, 30 January 2015, LawLex201500000112JBJ.

 CA Bordeaux, 13 June 2006, LawLex201200001198JBJ, referring to a "reasonably well-informed consumer, diligent and with average understanding". See also TGI Lille, 8 June 1995, LawLex200300002534JBJ, holding that the misleading nature of a lottery is assessed based on the understanding of a reasonably well-informed reader.

 Cass. ch. mixte, 6 September 2002, LawLex200300002548JBJ, upholding CA Orléans, 9 February 1998, LawLex200300003633JBJ.

 CA Riom, 12 October 2011, LawLex201200001259JBJ, excluding the existence of a legitimate belief of the recipient of an advertising lottery in the reality of gain, since this widespread commercial practice, known to the public, cannot seriously mislead a person born in 1954, who has received several times in a few months announcements of different gains. 

 See, inter alia, Cass. 1re civ., 6 February 2013, LawLex201300000167JBJ.

 CA Aix-en-Provence, 5 January 2000, LawLex200500005817JBJ.

 Bourges, 5 October 1998, LawLex200300002489JBJ; CA Dijon, 8 December 1998, LawLex200300002475JBJ: the average consumer who claims the status of winner of a lottery is required, before claiming the prize, to read all the documents sent to him and in particular the game rules included in this dispatch, easily accessible and written in plain language.

 CA Toulouse, 7 January 1999, LawLex200300004401JBJ.

 CA Aix-en-Provence, 21 October 2004, LawLex200600001492JBJ.

 CA Paris, 7 February 2003, LawLex200400000303JBJ.

 CA Rennes, 17 February 2006, LawLex200600001305JBJ.

 CA Nancy, 8 September 2005, LawLex200600001495JBJ.

 Cass. crim., 12 October 1999, LawLex200300002447JBJ, upholding CA Aix-en-Provence, 18 March 1998, LawLex200300003301JBJ; CA Angers, 14 September 2005, LawLex200600001295JBJ, holding that the recipient of an advertising lottery cannot be truly misled by reading emphatic messages using "overly attractive and ambiguous formulas, according to methods well known to all".

French Consumer Law

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

255. Reference consumer

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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