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 principle, only an excusable mistake, the assessment of which lies with the trial courts , justifies the annulment of the contract. New Article 1132 of the Civil Code, which recognizes mistakes of law or of fact concerning the essential qualities of the service or of the contracting party, while stipulating that only the inexcusable mistake can prevent the nullity of the contract, enshrines thi …

Inexcusable mistake

In principle, only an excusable mistake, the assessment of which lies with the trial courts , justifies the annulment of the contract. New Article 1132 of the Civil Code, which recognizes mistakes of law or of fact concerning the essential qualities of the service or of the contracting party, while stipulating that only the inexcusable mistake can prevent the nullity of the contract, enshrines this principle. In practice, the inexcusable or gross mistake is intended to punish the negligent behavior of the mistaken party (bound, in principle, by an obligation to inquire about the thing sold and to draw the consequences) and, as a corollary, to preserve the contracting party acting in good faith from the unfair consequences of an annulment. In other words, the negligent mistaken party only has himself to blame . Thus, the buyer of a car whose technical inspection certificate, delivered at the time of its purchase, mentions “cold heading on the chassis: inspection impossible”, cannot subsequently invoke an mistake as to the administrative status of the vehicle . Similarly, the buyer's mistake as the actual mileage of the vehicle is not excusable when, on two occasions prior to the sale, he was put in a position to realize that the meter showed miles and not kilometers .

According to the adage “l'aléa chasse la lésion” ("uncertainty excludes injury"), the acceptance, at the time of formation of the contract, of an uncertainty as to essential quality of the thing sold, excludes any subsequent allegation of mistake even in case of dissipation of the common uncertainty. Thus, when an uncertainty on the authenticity of the work has been accepted on both sides and has entered the contractual field, neither party - including the seller and its successors - can claim a mistake in case of certain authentication . The purchaser of a horse intended for steeplechase races, a quality which falls within the contractual scope, is also is precluded from relying on an excusable mistake on the substance of the horse, which has become unfit for the sporting activity, when he was not unaware, at the time of the purchase, of the risk, even minor, of lameness, as evidenced by the veterinary in his report, and he accordingly accepted an uncertainty on the animal's state of health . In the same vein, a person who buys a property in order to carry out work subject to obtaining a building permit, without making the confirmation of the sale contingent on obtaining such a permit, notwithstanding the even greater risk that the property is located in a flood risk prevention zone, which was annexed to the preliminary sales agreement, has accepted the risk of becoming the owner of a property that he could not convert into a residential dwelling, which excludes mistake relating to that quality . In short, the doubt that has entered into the contractual field makes any mistake inexcusable. This solution is set out in Article 1133, in fine, of the Civil Code, which states that “the acceptance of an uncertainty on a quality of the benefit excludes the mistake relating to that quality”.

The excusable nature is assessed in concreto by the court taking into account the capabilities of the mistaken party , who, at the time of contracting, must have shown a minimum degree of diligence. The Paris Court of Appeal thus classifies the buyer's mistake on the condition of the equipment supplied (which he believed to be new) as gross and inexcusable, in view of the clarity of the contractual documents, relating to its reconditioned nature, which he signed . Similarly, the buyer who, among the invoices for small amounts transmitted by the seller at the time of the sale, did not detect the only one which concerns the replacement of certain engine parts, in the amount of EUR 2,396.90, of a nature to draw his attention to the actual wear of the engine, cannot claim to have committed an excusable mistake on the state of the engine of the purchased vehicle .

The breach by the professional seller of its obligation to provide information may be the cause of an mistake on the essential qualities by the buyer and make it excusable . In particular, the buyer who obtained medical equipment finally considered unsaleable in the absence of certification, committed an essential and excusable error of law justifying the nullity of the contract, when the presentation brochure of the device mentions “CE Conformity” and, in the absence of any elements that could have led him to doubt the relevance of this information, he did not have to verify its accuracy . Similarly, the non-professional purchaser of an apartment with a surface area of 13.49 square meters, rented to a third party, which, following the visit of the municipal health and safety department, turned out to be of a surface area of less than 9 square meters, which in application of a departmental sanitary regulation excludes any possibility of letting it out, committed an excusable mistake concerning the habitable nature of the accommodation, since the fact of being a purchaser implies having full ownership of the property, which includes the possibility of renting it out - an essential quality of the thing sold which falls within the scope of the contract and is a decisive factor in the purchaser's acceptance of the contract - and since, lastly, the provisions of the disputed regulation are applicable, which are admittedly earlier and more stringent than those of the decree of 30 January 2002 on the characteristics of decent housing, but are not incompatible with the decree insofar as it does not abrogate them .

The trial courts generally excuse the mistake of the lay purchaser more readily , especially when he contracts with a professional seller . However, the excusable mistake of the professional buyer is accepted but only when the circumstances justify it . Thus, according to the Court of Cassation, the inexcusable nature of the buyer's mistake cannot arise from his expertise in works of art, since he never intervened in the certification of the painting at issue . In a case where a sale of agricultural machinery between traders was cancelled as a result of the buyer's mistake on the compatibility of the equipment acquired, the Court of Cassation stated that it was for the seller to provide its customer, even a professional buyer, with essential prior information on the lack of compatibility of the two items of equipment acquired, when this information relates to a decisive element of the thing sold .

Finally, the courts also take into account the impact of information that is certified or issued by well-informed professionals  being third parties to the sale, which is likely to deceive the mistaken party who is therefore dispensed from inquiring for himself . According to the Court of Cassation, when the mistake is caused by the fraud of a third party to the agreement, it can only result in the nullity of the contract if it relates to an essential quality of the performance .

 CA Grenoble, 10 September 2013, LawLex201400000381JBJ; CA Lyon, 23 October 2012, LawLex201400000501JBJ.

 CA Montpellier, 10 May 2012, LawLex201300000506JBJ: the buyer, who was entirely familiar with the horse as he had cared for it and ridden it prior to the sale when he was an employee of the seller, has no grounds to rely on an mistake as to the breed of the animal, especially when he is in possession of the accompanying document for the annual reminders of the horse's vaccinations;  CA Douai, 10 October 2019, LawLex201900001239JBJ:  the professional buyer who, after having acquired bottles of old wines at a public auction only on the basis of the description in the catalog, maintains that the external aspect of these bottles does not correspond to what he expected, claims a mistake as to their substance which is considered as inexcusable, since if he had gone to the exhibition prior to the sale, he would have been able to form his own opinion as to the essential characteristics of the bottles and their general condition and as a wine and spirits merchant, he cannot be unaware of the absence of quantitative normative criteria concerning the level of wine and the necessary subjectivity of the qualitative appraisal of the external aspect of such old bottles, and finally, he had been informed in the general terms and conditions of sale that the information in the catalog remained subject to his personal appraisal.

 CA Metz, 15 December 2011, LawLex201200000750JBJ.

 CA Paris, 25 January 2013, LawLex201300000503JBJ. The solution is explained because the buyer's mistake was caused by a misleading presentation, but according to the adage “no one is supposed to ignore the law”, the error of law is not, in principle, a cause of nullity of the agreement, unless it relates to a substantial quality of the thing.

Cass. 3e civ., 3 May 2018, LawLex201800001374JBJ.

  See CA Paris, 1 February 2007, LawLex200700000638JBJ, emphasizing the non-professional status of the buyer to excuse his mistake in assessing the parking space purchased, actually too narrow to park his vehicle.

 CA Besançon, 11 April 2006, LawLex200700000643JBJ, regarding an mistake deemed excusable on the age of a piece of furniture committed by lay buyers having contracted with a renowned professional.

 CA Colmar, 27 April 2010, LawLex201200000748JBJ, holding that the professional buyer committed an inexcusable mistake on the technical characteristics of the forklift purchased when, regularly using this type of machine within the framework of his professional activity, he was entirely competent to assess whether the articulation of the lifting arm was compatible with the configuration of his warehouse; CA Reims, 20 March 2018, LawLex201800000472JBJ, considering that the professional purchaser who thought he was buying a tempering machine with a cooling function essential for making chocolate, when in fact he was buying a dipping machine without this function, made an excusable mistake when the word tempering appeared on the device, that the advertisement was entitled “chocolate tempering machine” and not “chocolate dipping machine” or “chocolate fountain”, that the photos in the advertisement did not clearly show that the control panel did not have a “cold” button and that there was no explanation for suspecting the absence of the cooling function, even if it was not explicitly indicated.

  Cass. 1re civ., 14 December 2004, LawLex200500005875JBJ, Claudel case. See, for a similar decision, CA Versailles, 23 January 2007, LawLex200700000636JBJ (referring appeal court) having held that although the buyer was specialized in bronzes, carved wood and polychromes, he had no particular expertise in paintings; CA Paris, 19 October 2021, LawLex202100006013JBJ, considering that an art brokerage company which acquired two drawings with their certificates of authenticity is entitled to ask for the cancellation of the sale for mistake as to the essential qualities, independently of its professional capacity, of the assessment of the fault of the auctioneer/seller and without the need to demonstrate the lack of authenticity of the pieces, when documents originating from the foundations of the concerned writers contest the validity of the certificates in question, thus giving rise to a serious doubt as to the authenticity of the works they guarantee. 

 Cass. com., 13 March 2012, LawLex201200000977JBJ, concerning the purchase of two items of agricultural machinery which proved to be incompatible.

CA Paris, 22 August 2024, LawLex202400005780JBJ: the lay purchaser who acquired the disputed drawings, having been convinced that any uncertainty as to their authenticity was excluded and that they were genuine works in view of the guarantees provided by the professional seller and the certificates of authenticity accompanying them, and who cannot be accused of any inexcusable mistake, is entitled to obtain the invalidity of the five sales that took place due to a mistake regarding the material qualities of the item sold, since there is doubt as to the authenticity of the disputed drawings following the statements of two experts who identified the works as forgeries; Cass. 1st civil, 4 December 2024, LawLex202400009781JBJ: the seller's mistake regarding the material qualities of the item sold is a ground for invalidity of the contract only insofar as it is excusable, which is the case if he has provided all the information in his possession to the professional responsible for the sale, relying on his opinion, and the latter has not carried out the research that would have allowed him to avoid the mistake.

 CA Lyon, 18 May 2004, LawLex201400000571JBJ.

 Cass. 1re civ., 3 July 1996, LawLex200700000921JBJ.

  CA Lyon, 23 October 2012, LawLex201400000501JBJ.

 See Cass. 1re civ., 24 March 1987, Fragonard case, LawLex201400000572JBJ.

 CA Douai, 4 February 2013, LawLex201300000556JBJ.

CA Orléans, 7 November 2023, LawLex202300013603JBJ.

 Cass. 3e civ., 21 June 1995, LawLex200500006056JBJ, excluding any wrongful mistake by the buyer, informed of the existence of a public dump on the plot of land purchased, which became inconstructible, when he was not able to know the anomalies contained in the depths of the ground and their consequences as to its constructibility.

 See CA Paris, 19 December 2012, LawLex201300000505JBJ.

  CA Grenoble, 10 September 2013, LawLex201400000381JBJ.

French Consumer Law

363. Inexcusable mistake

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363. Inexcusable mistake

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