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, as defined in Article 1137 (former Article 1116) of the Civil Code, presupposes “maneuvers” which are decisive in obtaining the consent of the other contracting party. When the purpose of a behavior is to fraudulently obtain the consent of the other party, is this sufficient to constitute fraud? According to the Court of Cassation, fraud necessarily implies the existence of tricks, lies or  …

Pressure, trickery, lies

Fraud, as defined in Article 1137 (former Article 1116) of the Civil Code, presupposes “maneuvers” which are decisive in obtaining the consent of the other contracting party. When the purpose of a behavior is to fraudulently obtain the consent of the other party, is this sufficient to constitute fraud? According to the Court of Cassation, fraud necessarily implies the existence of tricks, lies or deceit, but cannot arise solely from the insistence by one party to convince the other . Pressure and psychological violence also do not characterize fraud absent of any maneuvers intended to induce into error of such a nature as to vitiate the consent of the other party . However, the Court of Cassation has considered that “intellectual maneuvers” intended to deceive the contractual partner consisting in falsely claiming to have a high level of expertise constitute fraud .

Fraud can be equated with, or even overlap with embezzlement , forgery , abuse of weakness  or misleading commercial practice . The telemonitoring company, which, by certain confusing or misleading artifices, maintains the belief of its contractual partner in the unicity and possible offset between the contracts he has entered into, when this is not the case, is guilty of fraudulent maneuvers . Similarly, lack of clarity  on the conditions for renewing a long-term lease contract for a printer and the confusion between this contract and the maintenance contract, which led an association to purchase a lease contract in the legitimate belief that the lease would be definitive with no other cost than the payment of the maintenance service and its commitment to promote the brand of the printer in question, characterizes fraudulent maneuvers justifying the cancellation of the sale. . This is also the case when a company, in its proposal for a contract, claims to charge per copy, in order to offer lower rates than its competitors, whereas its maintenance contracts only mention a billing “per scan”, without defining this term  or when the installer of an automated window display has the lessee sign two contracts for the same equipment without informing the latter thereof . The unjustified claim by an undertaking to ties with a renowned telephone operator and falsely announcing a cost saving of 30% to a future customer when compared to its previous provider, without clearly informing the customer of the particularly long duration of its binding commitment, constitute fraudulent maneuvers . On the other hand, the fact that a representative goes to the home of the victims of a fire, while firefighters and gendarmes are still present and the fire has not been fully contained, to have them sign a contract for the assessment of damage resulting from the fire does not characterize fraud per se, in the absence of trickery, fraud, lies or deception . Likewise, there is no fraudulent maneuver merely on the grounds of a change of brand of equipment on the day of delivery, as the company had accepted and expressly approved that modification by the signing of a new purchase order, whereas it had the option of refusing the changes made .

However, the most common form of fraud is lying. In a case in which it was held that fraud cannot be presumed based solely on the indications in the contract, since it assumes the existence of fraudulent maneuvers by one of the contracting parties against the other, concomitantly to the formation of a contract, the Court of Cassation laid down the principle that a lie, even if not supported by external acts, may constitute fraud . Fraud can therefore be deduced from a counter-truth included in the deed of sale , in a notice , documentation , sale advertisement , invoice or purchase order . Thus, the seller who, at the time of the transaction, establishes a receipt for the advance payment received in the name of a Polish company, which is in fact non-existent, while claiming that the vehicle was put into circulation in 1989 instead of 1985, commits fraud liable to cause the cancellation of the sale . Likewise, the lawyer who had erroneously led his customer, a foreigner residing in Saudi Arabia and therefore likely to be unaware of the extent of his prerogatives and powers, to believe that he was empowered to make investments on the stock exchange and to manage them for his account whereas his role as legal advisor prohibits such acts, is guilty of fraud thus justifiying the voiding of the financial investment agreement . However, simple vagueness cannot constitute fraud. The inaccuracy of the reference attributing the work to an inheritance, although it belonged to the seller, does not characterize a lie about the origin of the object, constituting fraud, in the absence of the deliberate intention to deceive . Similarly, it cannot be deduced, from the expression “2nd generation equipment”, corresponding in the spirit of the seller to reconditioned equipment, but which can equally mean that the equipment is new, but of an earlier generation, the existence of a characterized maneuver deliberately intended to deceive the buyer on the nature of the equipment and encourage him to contract . The fact that the seller was convicted of misleading advertising, due to a false indication in the advert published concerning the surface area of an apartment, also does not suffice to justify the annulment of the contract for fraud, since the maneuvers or lies must have been decisive for the buyer's consent  and this offense is punished, whether it was committed in good faith or bad faith. The supplier's exaggeration as to the qualities of the thing sold when it does not go beyond what is customary in commercial practices and does not relate to an essential characteristic of the thing, does not justify the cancellation of the sale . In this case, court practice applies the classic distinction between the “dolus malus”, a defect of consent sanctioned under Article 1137 of the Civil Code, and the “dolus bonus” which corresponds to an exaggeration on the qualities or value of the thing sold, committed by the seller for commercial purposes. This distinction is based on the absence of intent to deceive of the perpetrator of the dolus bonus who may be punished on the grounds of misleading advertising : unlike fraud, it does not require bad faith or violation by the seller of his duty to inform and advise .

A spoken lie constitutes fraud in the same way as a written lie . A seller therefore commits fraud when he induces the buyer to contract on the sole basis of a lie - that the appliances sold could be plugged into simple electrical sockets - when he is required, both in this capacity and as an installer of electrical equipment, not only to inquire about the buyer's needs, but to adapt the proposed equipment to the intended use . Similarly, a seller who, in order to sell his pasta-making equipment, falsely claims that registration in the Trade Directory is not necessary, nor compliance with specific hygiene standards more restrictive than those to which his contractual partner is already subject as a seller of foodstuffs, is guilty of fraudulent maneuvers .

 Cass. com., 2 June 1981, LawLex200500006157JBJ, having held that in the absence of artifices, fraud, lies or deceit, the buyer's frequent attempts to convince his future contractual partner to sell him its business cannot justify the request for cancellation of the contract of sale, upholding CA Paris, 3 May 1979, LawLex200500009157JBJ. For a similar decision, CA Paris, 17 June 1992, LawLex200500006865JBJ: "relating to fraud, that the mere insistence on the part of a party to convince the other to buy a property does not constitute a significant maneuver, when none of the evidence produced in support of the cancellation sought evokes an artifice, fraud or deception".

 Cass. com., 10 July 1995, LawLex200500005937JBJ: in this case, causing a scandal within a company to obtain a recognition of debt is a matter of violence, and not fraud.

 CA Aix-en-Provence, 30 October 2012, LawLex201400000447JBJ.

CA Paris, 13 January 2017, LawLex201700000279JBJ.

 CA Lyon, 26 April 2018, LawLex201800000642JBJ.

 CA Dijon, 11 January 2018, LawLex201800000126JBJ.

CA Paris, 16 March 2018, LawLex201800000483JBJ.

  Cass. 3e civ., 6 November 1970, LawLex201400000741JBJ: in this case, the Court of Cassation approved the trial judges for having noted "that the alleged common courtyard agreement mentioned, by a manifest counter-truth, the alleged benefit that Mr. and Mrs. X would have, in the future, referring to "the cumulative widths of the two courtyards, this distance being measured from rear façade to rear façade of the buildings", which could not be, as said façades being strictly perpendicular to one another" and for having deduced "that Mrs. X, voluntarily misled on this point, would certainly not have agreed, with no pecuniary compensation, to sign an agreement which, far from being an advantage for the common building, caused her a certain prejudice". Reiterating the principle, Montpellier, 13 February 2004, LawLex201400000402JBJ.

 Cass. 3e civ., 29 April 2000, LawLex200400003634JBJ, upholding CA Paris, 4 June 1998, LawLex200500004217JBJ: the seller of a property who not only fails to disclose the prefectural ban on living in the property sold, but instead states in the deed of sale that there is no legal or contractual restriction to its free disposal, commits fraud.

 CA Amiens, 1 April 2010, LawLex201200001274JBJ: the seller who gives the purchaser a notice falsely stating the compliance of the motor vehicle sold with traffic regulations, gives false information justifying the cancellation of the sale for fraud, when the non-approval of the vehicle by the former Regional Directorate for Industry, Research and the Environment (DRIRE) resulted in a denial of insurance, and therefore the impossibility to circulate on the highway, which is essential for the buyer, an agricultural contractor.

 Cass. com., 24 May 1994, LawLex200500005941JBJ: the fact that the seller's representative delivers documentation presenting the thing sold as having qualities very different from those actually found as well as promising supplementary insurance which the seller is not actually able to assume, constitutes a fraudulent maneuver decisive for the buyer's consent.

 CA Versailles, 10 June 2010, LawLex201200001423JBJ.

  Cass. 1re civ., 25 November 2009, LawLex201000001028JBJ.

 CA Paris, 15 February 2007, LawLex200700000764JBJ; 26 November 1993, LawLex200500006873JBJ: the false indication on the purchase order of a 1990 model year for a vehicle sold on 24 May 1989, reinforced by the postponement of the formality to establish the registration card to a date later than 1 July 1989, characterizes the fraudulent maneuvers of the seller, intended to cause an error on the substantial qualities - the vintage of the vehicle -, which might vitiate the consent of his contractual partner.

CA Douai, 28 October 2013, LawLex201400000411JBJ.

CA Versailles, 17 March 2017, LawLex201700000589JBJ.

 CA Paris, 25 March 2002, LawLex200700000776JBJ.

 CA Montpellier, 19 November 2013, LawLex201400000339JBJ, especially as reconditioned equipment is equipment whose components have been entirely or partially renewed and the performances thus modified, unlike second-hand equipment, sold "as is". 

 CA Paris, 3 July 2001, LawLex200500006517JBJ.

 Cass. com., 13 December 1994, LawLex200500005942JBJ.

  CA Aix-en-Provence, 26 October 2006, LawLex200700000761JBJ.

 CA Paris, 2 December 1997, LawLex200600000721JBJ: on the circumstance, evidenced by testimony, that the seller of a residential property attempted to make future buyers believe that the property could be extended by the purchase of a plot of land from a third party in conditions contrary to reality.

 Cass. 1re civ., 3 May 2000, LawLex200500005938JBJ, Baldus case, having held that the buyer, sued for embezzlement and fraud, was not guilty of fraudulent non-disclosure (nor embezzlement) by refraining from informing the seller of the real value of the photographs sold.

 CA Aix-en-Provence, 26 October 2006, LawLex200700000761JBJ.

 CA Toulouse, 24 October 2012, LawLex201400000448JBJ.

 CA Grenoble, 9 February 2000, LawLex200500006430JBJ: falsification of a vehicle registration document.

 For an example of fraud confined to the abuse of weakness, see CA Rennes, 18 February 1987, LawLex200700000922JBJ: buyer exercising control over the seller, weakened and elderly, by keeping him isolated to induce him to make a disadvantageous sale, which he would not have made without these maneuvers.

 For an example of accumulation of fraud and misleading commercial practices, see CA Riom, 6 March 2008, LawLex201200000981JBJ: direct sellers who, by the delivery of doubtful documents and inaccurate information, make consumers believe that the system they are offering for sale will allow them to receive, free of charge and for an unlimited period, a wide range of television channels, although some of them, encrypted or included in satellite packages, are only offered for a year, are guilty of misleading commercial practices, but also of fraudulent maneuvers, justifying the annulment of the contract for the supply and installation of the satellite equipment in question; CA Lyon, 26 April 2018, LawLex201800000642JBJ: non-compliance with the requirements of Article L. 121-2 of the Consumer Code can be invoked in support of an application for the voiding a contract for fraud, when the particularly long commitment period - not clearly stated on the first page of the contract - is set out only in the special conditions in small print and the actual cost of the service is not provided.

 CA Paris, 7 February 2013, LawLex201400000449JBJ: the manager of a sewing workshop who only purchased the telemonitoring and equipment lease contracts in question from two separate companies because he believed it was a single agreement, the cost of which was offset by advances on commissions promised to him under a contract to act as "professional business provider" with the other traders in the neighborhood, is entitled to apply for the annulment of these two agreements, considered as indivisible, on the grounds of fraud, as he was misled as to their exact nature and scope by the use of artifices, namely an identical amount for the remote monitoring service, the lease of the equipment installed and the business provider's commission (also unusually paid in advance) which led him to believe in a unicity and possible offset between the contracts in question.

A contrario : Cass. com., 29 November 2016, LawLex201600002056JBJ, holding that the implementation, by a provider of investment services, of a financial investment for which it is not established that he knew it was inevitably doomed to failure, cannot be qualified as fraudulent, insofar as the formula for the calculation of the remuneration of this investment set out in a notice authorized by the Securities Exchange Commission, although complex, clearly showed the conditions, and therefore the risks, that could affect the expected performances of the proposed investment.

 CA Versailles, 6 December 2012, LawLex201300000620JBJ.

French Consumer Law

373. Pressure, trickery, lies

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Les décisions de justice citées dans ce paragraphe :

373. Pressure, trickery, lies

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Les décisions de justice citées dans ce paragraphe :

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