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

Fraud (dol) is sometimes defined as an “induced error” . It is similar to mistake, except that, in the case of fraud, it is not necessary  for the mistake to relate to an essential quality of the thing sold to lead to the nullity of the contract. The scope of application of fraud is in fact broader than that of mistake, to the extent that it makes it possible to sanction any type of mistake (including mistake as to value  or as to motivation , see new Article 1139) provided that it was decisive for the consent of the victim. Fraud is a “tort” (délit civil), consisting of a material element - the tactics used - and a moral element, and like a criminal offense, is similar to another type of vitiated consent, namely duress , insofar as it is morally reprehensible.

Since the reform of contract law, Articles 1137 to 1139 of the Civil Code govern fraud and reiterate, in other terms, the mechanism of Article 1116 and its case law interpretation. Article 1116, paragraph 1 of the Civil Code defines fraud as “a cause of nullity of the agreement when the maneuvers carried out by one of the parties are such that it is obvious that without these maneuvers, the other party would not have entered into the contract”. Under the new Article 1137, fraud is “the fact for a contractor to obtain the consent of the other by maneuvers or lies” or concealing “information which he knows to be decisive for the other party” . Under Article 1137, fraud is therefore necessarily carried out by the contractual partner . An intentional mistake committed by a third party to the contract will remain unpunished under civil law, if the third party is found criminally liable for the offense of fraud, deceit, or misleading commercial practice. An individual cannot therefore argue that his consent to the joint purchase of a property was vitiated by the reticence and deception of his partner as to the reality of his assets and seek the nullity of the preliminary sales agreement, since fraud is a ground for nullity of the agreement only if it emanates from the party with whom the undertaking is entered into, in this case the sellers . The Court of Cassation considers, however, that the trial courts cannot merely dismiss the action of the victim who is misled by the fraudulent maneuvers of a third party to the contract, without examining whether the “induced error” relates to the essential qualities of the thing, in which case it would result in the nullity of the contract . Although, in principle, fraud is punishable only if it is committed by a party to the contract, there are two exceptions to the rule: the fraudulent acts of a third party may be punished if he is the accomplice or the legal representative of the contractual partner . In this case, the fraudulent maneuvers of the agent are enforceable against the principal . Article 1138, which states that “fraud is also constituted if it is carried out by the representative, business manager, agent or guarantor of the contractual partner” or “third-party accomplice”, enshrines these case law derogations. When the third party victim has not sought redress on the ground of nullity, but on the ground of tort liability, the Court of Cassation, meeting in a mixed chamber, recently specified that while the principal is contractually liable for any harm suffered as a result of the non-performance of the undertakings entered into by his agent within the limits of the mandate conferred, fraud on the part of the agent in the exercise of his mandate only engages the extra-contractual liability of the principal if he has personally committed a fault, which it is for the victim to demonstrate .

 See in this sense the new Article 1139 of the Civil Code, which provides that “the mistake resulting from fraud is always excusable”.

 However, in practice, fraud by commission or omission often relates to a substantial quality of the thing sold.

 Cass. com., 6 September 2016, LawLex201600001485JBJ.

Cass. mixte, 29 October 2021, LawLex202100006463JBJ.

  However, the mistake as to the value remains irrelevant, when it is the result of fraudulent non-disclosure, see Cass. com., 3 May 2000, LawLex200500005938JBJ: the buyer's fraudulent non-disclosure cannot justify the nullity of a contract of sale, as he is not bound by any obligation to inform on the real value of the goods purchased.

  Fraud may be based on the contracting party's motive: in this case, he lies to the victim concerning the motivation that will be decisive for his commitment. This is the case when a deed of sale is presented as the grant of a simple right of preference, a bond as an unimportant formality or of the sale of works of art at a price disproportionate to their real value by making the buyer believe that he can resell them at an “attractive price”.

 Articles 1140 to 1143 (former Articles 1111 and 1112) of the Civil Code.

 This provision can be likened to the pre-contractual duty of information established by the new Article 1112-1 of the Civil Code.

  Cass. 1re civ., 30 September 2010, LawLex201200001273JBJ.

CA Montpelier, 7 November 2019, LawLex201900001394JBJ.

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

 CA  Dijon, 8 September 1993, LawLex200500008848JBJ.

372. Fraud