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

Under former Article 1109 of the Civil Code (now Article 1130, paragraph 1 ), inspired by the theory of freedom of contract , there was no valid consent, if it had been given in error, extorted by violence or obtained fraudulently .
However, as the intention of the drafters of the Civil Code was to minimize the possibilities of cancellation of the contract to foster legal certainty, former Article …

Concept

Under former Article 1109 of the Civil Code (now Article 1130, paragraph 1 ), inspired by the theory of freedom of contract , there was no valid consent, if it had been given in error, extorted by violence or obtained fraudulently .

However, as the intention of the drafters of the Civil Code was to minimize the possibilities of cancellation of the contract to foster legal certainty, former Article 1110, paragraph 1, provided that “mistake is only the cause of nullity of the agreement when it bears on the very substance of the thing that is its object”. In the same way - still by limitation -, paragraph 2 excluded the nullity of the agreement in case of mistake as to the person, except in contracts concluded in consideration of the person .

Despite the duality of the conceptions - consensualist and formalistic - underlying these provisions, the regime of mistake has developed according to case law  from which it follows that the mistake, a cause of nullity, assumes the meeting of several conditions:

(2)  relating to a substantial quality of the thing that has entered the contractual field ;

(3)  determining the consent of the “errans”;

(4)  and excusable on the part of the latter.

The new Civil Code takes up these conditions in other terms, along with their case law interpretation. However, the legislator has been more expansive, since mistake is now governed by five articles (Articles 1132 to 1136) instead of just one previously.

 "Mistake, fraud and violence vitiate consent when they are of such a nature that, without them, one of the parties would not have contracted or would have contracted on substantially different terms."

 Now enshrined in the new Article 1102 of the Civil Code which provides: "Everyone is free to contract or not to contract, to choose his contractual partner and to determine the content and form of the contract within the limits set by law. Contractual freedom does not allow derogations from the rules of public order".

 Fraud which can be defined as an induced mistake, is not presumed (Article 1116, Civil Code). In practice, mistake sometimes encroaches on the domain of fraudulent non-disclosure, more difficult to prove, or the obligation to inform, more readily sanctioned based on the performance rather than the formation of the contract.

 For an example of mistake on the person having resulted in nullity, see TGI Paris , October 31, 2013, LawLex201400000403JBJ, having held that the managerial delegate of a Parisian municipal public service (held as such to guarantee the neutrality of the public service) who leased the Palais Omnisports of Paris Bercy for a show entitled "Best Of, un spectacle d'humoriste" without knowing that it was actually the show of Dieudonné, declared candidate in the presidential elections, when this mistake as to identity of the artist must be considered as decisive and essential, given the political commitments of the humorist requiring, in the election period, the authorization of the Paris City Hall.

 The preferred terrain of mistake as to the essential qualities being principally that of works of art, we will only mention the major judgments in this area given the subject matter of this book. 

 To lead to annulment, the mistake must relate to an essential quality explicitly or implicitly agreed between the parties, see, for example, CA Paris, 20 February  2004, LawLex201200001466JBJ, concerning the sale of a vintage car. See also CA Douai, 14 February 2013, LawLex201300000556JBJ.

French Consumer Law

358. Concept

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Les notions juridiques connexes

358. Concept

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Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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