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

As pointed out by the Court of Cassation , fraud by action or omission requires a moral element, which is essential for its characterization: the intention to deceive by the perpetrator of the fraud. Fraudulent behavior is reprehensible from a moral point of view, as it assumes the bad faith  of its perpetrator. Deception may consist in either causing the mistake having vitiated consent , or simpl …

Intent to deceive

As pointed out by the Court of Cassation , fraud by action or omission requires a moral element, which is essential for its characterization: the intention to deceive by the perpetrator of the fraud. Fraudulent behavior is reprehensible from a moral point of view, as it assumes the bad faith  of its perpetrator. Deception may consist in either causing the mistake having vitiated consent , or simply in taking advantage of it . However, the intention to deceive should not be confused with the intention to harm, which assumes the will to injure .

When fraud takes the form of a set of explicit maneuvers, including falsifications, deceit or lies, the intentional fault can be easily characterized. The seller's intent to mislead on the falsified mileage on the odometer of the vehicle sold may be deduced from his deliberate intent not to provide the buyer with the necessary documents for the registration of the vehicle, in particular the sales certificate, and his reluctance to provide the identity of its previous owner . Similarly, a professional seller of cranes commits fraud by presenting one of these machines for sale as a 1983 model, although its construction dates back to 1980, when the rating of the engine and its previous purchase at the price of a 1980 model corroborate his knowledge of the vehicle being put into service that year . However, 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, in the absence of the deliberate intention to deceive .

An omission by carelessness or negligence cannot in principle constitute fraudulent non-disclosure. In other words, mere silence cannot be assimilated to fraud . Furthermore, due to the impossibility of proving the intention to deceive in case of fraudulent non-disclosure, the judges tend to base their decision on the information obligation, as the disregard of this obligation results in a virtually systematic conviction for fraudulent non-disclosure without really characterizing the intentional element , although fraud cannot be presumed (former Article 1116, paragraph 2) . To put an end to this deviation, the Court of Cassation first stated that the mere breach of the information requirements relating to prices laid down in Article L. 112-1 (former Article L. 113-3) of the Consumer Code is insufficient to reveal the existence of dishonest actions or fraudulent maneuvers on the part of the seller , and then firmly stated that the breach of a pre-contractual information obligation, assuming it is established, is not sufficient to characterize fraudulent non-disclosure, if not accompanied by the finding of the intentional nature of this breach and a decisive mistake caused by it . The solution is to be welcomed, because it puts an end to the extensive interpretation of fraudulent non-disclosure, which tends to hold it as established in the absence of any intentional element. A controversial judgment of the third Civil Chamber of the Court of Cassation had, in fact, established the principle that “fraudulent non-disclosure always makes the mistake provoked excusable” .

Difficult to establish, the intention to deceive implies, in the case of fraudulent non-disclosure, knowledge  by the perpetrator of the facts he is criticized for failing to disclose and of their decisive nature in the contractual partner's decision to consent .  It is therefore for the court to ascertain whether the seller's non-disclosure of the accident in which the vehicle was involved is intended to deliberately mislead the purchasers and persuade them to conclude the sale, irrespective of the existence of apparent defects which are visible from the outside of the vehicle . The non-disclosure of the seller who knowingly conceals elements that he knows are essential to the buyer can only constitute fraud on the condition that he can know the value the buyer attaches to these elements . A contrario, fraudulent non-disclosure is ruled out in the absence of such knowledge . Therefore, a company cannot be criticized for not having informed the buyer, at the time of his purchase of pepper plants, of the fact that its manager was carrying out experiments on a pathogenic fungus specific to basil, when no risk of transmission of this fungus to pepper plants had ever been detected . The seller's intention to deceive can also be ruled out when the buyer has been sufficiently informed by the documents appended to the promise to sell .

  Cass. com., 28 June 2005, LawLex200600002444JBJ.

 CA Grenoble, 5 November 1991, LawLex200500008599JBJ: the bad faith of sellers is characterized when they delay the disclosure of the accounts of the disputed business, despite the buyer's urgent requests and communicates erroneous figures to him; CA Aix-en-Provence, 16 December 2003, LawLex200600001621JBJ: an owner who takes advantage of the state of health of his tenant to claim from him, in bad faith, amounts he knows are not attributable to him, demonstrates an unfair attitude and commits fraudulent maneuvers; CA Lyon, 15 September 2005, LawLex200600001704JBJ: although the seller, in his capacity as a professional, is supposed to know about the defects of the vehicle sold, his bad faith cannot be established taking into account the numerous transactions the vehicle was the subject of without his knowledge.

 The reference to the fact that fraud is not presumed was not maintained following the reform of contract law on the grounds that it does not derogate from the major principles of the production of evidence.

 Cass. 1re civ., 15 December 1998, LawLex200300002615JBJ.

 Cass. com., 28 June 2005, LawLex200600002444JBJ.

 Cass. 3e civ., 21 February 2001, LawLex200500005940JBJ.

 CA Paris, 25 March 2002, LawLex200700000776JBJ.

 CA Angers, 11 December 2012, LawLex201400000446JBJ: for silence to constitute fraudulent non-disclosure, the victim must prove the intention of the perpetrator to cause an mistake as to a decisive element of his consent.

 Cass. civ. 1re, 25 January 2017, LawLex201700000260JBJ.

 CA Paris, 17 January 2006, LawLex200600001573JBJ; CA Orléans, 2 March 2020, LawLex20200000331JBJ: the mere ignorance by the purchaser of information considered essential cannot suffice to characterize the existence of fraud in the absence of wrongful conduct on the part of the seller, who can only be blamed for a lack of information if he had it in his possession.

 CA Pau, 11 September 1986, LawLex200500005574JBJ, concerning termites whose presence belatedly discovered by an expert, could not be, a fortiori, by the seller who had inherited the property without ever having lived in it and who had only visited it once.

 CA Montpellier, 20 November 2012, LawLex201300000621JBJ.

 CA Aix-en-Provence, 31 October 2006, LawLex200700000762JBJ, having characterized the intention of buyers to mislead the seller, as they had concealed the court-ordered liquidation procedure they were subject to, and implied their solvency by the delivery of a check.

Cass. 3e civ, 13 July 2023, LawLex202300010841JBJ, pointing out that the property's structural inspection indicated to the buyer that the ground in the courtyard was cracked, and that a check to ensure that there was no seepage into the infrastructure should be carried out in the medium term.

 Cass. 1re civ., 15 February 2000, LawLex200700000784JBJ, which deduces the fraudulent non-disclosure of the bank from the fact that, knowing that the debtor's situation is very difficult, it failed to bring this information to the attention of the guarantor, to incite him to commit.

 CA Nîmes, 10 October 2013, LawLex201400000413JBJ.

 CA Basse-Terre, 14 March 1994, LawLex200600001572JBJ.

 CA Versailles, 7 March 1996, LawLex200600000738JBJ.

  Cass. 1re civ., 12 November 1987, LawLex200500006059JBJ, which recalls the need to characterize the intent to deceive, to retain the existence of fraudulent non-disclosure.

 For examples, CA Colmar, 7 December 2006, LawLex200700000758JBJ: the professional seller is guilty of fraudulent non-disclosure when he refrains from fulfilling his duty to inform and advise vis-à-vis the buyer, which requires him to disclose the damage and repairs previously undergone by the vehicle sold, which he necessarily knew of as he carried them out himself; Cass. 1re civ., 12 January 2012, LawLex201200001421JBJ: the professional seller, bound by a duty to inform toward the lay buyer who acknowledges having presented the damaged vehicle on the purchase order as “repaired in accordance with professional standards” and declared, before the sale, that the accident was limited to a dented wing, although he was unaware of the extent of the accident and the nature of the repairs carried out, is guilty of fraud.

French Consumer Law

378. Intent to deceive

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378. Intent to deceive

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Les décisions de justice citées dans ce paragraphe :

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