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French Consumer Law

The burden of proving the mistake lies with the person invoking it, i.e. the mistaken party, whether he is the buyer or the seller. As mistake is a matter of legal fact, evidence of it can be provided by any means.
A number of aspects must be proved: the plaintiff must demonstrate a discrepancy between the belief and the reality  relating to an essential quality agreed between the parties   and de …

Burden of proof and evidentiary requirements

The burden of proving the mistake lies with the person invoking it, i.e. the mistaken party, whether he is the buyer or the seller. As mistake is a matter of legal fact, evidence of it can be provided by any means.

A number of aspects must be proved: the plaintiff must demonstrate a discrepancy between the belief and the reality  relating to an essential quality agreed between the parties   and decisive of the consent . Some courts even require the mistaken party to prove that he has committed an excusable mistake .

The mistake is assessed at the time the contract is formed . Therefore, the action by a mistaken party unable to demonstrate that the wheat made available to him on the scheduled date did not have the qualities specified in the contract  must be dismissed. The Court of Cassation accepts, however, that the applicant for a declaration of nullity may use elements of assessment subsequent to the sale to prove the existence of his mistake at the time of conclusion of the contract . In a case where the jewelry purchased proved to be of lesser value with regard to the quality of the diamonds used, the Court of Cassation upheld the trial court for having based its decision on the certificate established, after the sale, by the seller, which showed that the buyer had contracted in the mistaken belief of a quality of stone color better than subsequently found to be the case. On the other hand, according to the Court of Cassation , “retroactivity does not affect the mistake as to [essential] qualities”. This means that the mistake must be assessed at the time of conclusion of the contract, even if the facts have been modified retroactively by a subsequent administrative decision. Thus, in a dispute relating to a property sale concluded under the condition precedent of obtaining a building permit, subsequently withdrawn by a municipal order following a major flood, the Court of Cassation  overturned the decision of the trial courts who had considered, to grant the applicant's action for nullity against the buyers, that the withdrawal caused the permit to retroactively disappear, and, accordingly, it was deemed never to have existed. In the Court's view, the mistake on the essential quality cannot be attributed to the cancellation of a building permit which took place after the formation of the contract. Such a solution is justified not only by the principle of legal certainty but also by the concern not to penalize the seller acting in good faith, who cannot be blamed for any fault. On the other hand, the Court of Cassation held, in a case concerning the sale of a plot of land, that the withdrawal of the permit, which occurred after the purchase, to take account of the risk linked to the presence of an underground cavity, which existed on the date of the sale, cannot exclude the annulment of the transaction for mistake as to immediate constructibility of the land, a decisive element of the behavior of the buyers .

 Cass. 3e civ., 2 October 2013, admitting the action for nullity, on the grounds that the plaintiff justifies the materiality of his mistake by demonstrating that he concluded the lease in the mistaken belief that it would allow the exercise of his activity without competition in the shopping mall (although this was not the case). 

 CA Amiens, 27 June 2013, LawLex201400000389JBJ: the buyer of a boat 8.52 m long instead of 7.90 m, resulting in a change in the tariff category to be paid to the Port-Camargue marina, cannot obtain the cancellation of the sale on the grounds of mistake, when he does not demonstrate that the annual amount of the charge was, contrary to the berth he had taken, a decisive element of the sale; CA Paris, 19 December 2012, LawLex201300000505JBJ: the buyer cannot invoke a mistake justifying the nullity of the sale and rental contract on the grounds that he thought he was buying new equipment although it proved to be used, when he does not provide evidence that the newness of the equipment supplied was decisive for his consent.

 CA Paris, 8 October 2003, LawLex200600001489JBJ, Spoerri case: the buyer of a painting who challenges its authenticity, must demonstrate that the certainty of the execution of the work by the artist constituted for him a substantial quality of the work of art and that he had entered into the contract in the erroneous and excusable belief that the painting had been done by him.

 CA Versailles, 27 October 2011, LawLex201200000800JBJ; Cass. 3e civ., 13 November 2014, LawLex201500000417JBJ, upholding the trial judges for having dismissed the action of the purchasers for nullity under former Article 1110 of the Civil Code, since the extension of the inconstructibility to the entire surface of the land and the consecutive refusal to issue the building permit were not inevitable on the day of the sale.

 CA Versailles, 27 October 2011, LawLex201200000800JBJ.

 Cass. 1re civ., 11 March 2003, LawLex200500005872JBJ; Cass. 1re civ., 13 December 1983, LawLex200500005878JBJ, Case Poussin II.

  Cass. 3e civ., 23 May 2007, LawLex201200000765JBJ.

 Cass. 3e civ., 12 June 2014, LawLex201500001667JBJ.

French Consumer Law

367. Burden of proof and evidentiary requirements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

367. Burden of proof and evidentiary requirements

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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