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French Consumer Law

Under former Article 1116, paragraph 2, of the Civil Code, fraud could not be presumed: the person who invokes the existence of fraudulent maneuvers must provide evidence of it . This principle, although still applicable, was not included in the new provisions specifically governing fraud, as this defect of consent does not derogate from the rules of evidence . Pursuant to the new Article 1358 (fo …

Evidence

Under former Article 1116, paragraph 2, of the Civil Code, fraud could not be presumed: the person who invokes the existence of fraudulent maneuvers must provide evidence of it . This principle, although still applicable, was not included in the new provisions specifically governing fraud, as this defect of consent does not derogate from the rules of evidence . Pursuant to the new Article 1358 (former Article 1315), fraud can be proved by any means, and in particular by presumptions of fact relating to human action  or testimony . However, the verbal agreement given in the course of an out-of-court appraisal by which the seller has admitted, before changing his mind, the principle of a cancellation of the sale with restitution of the price, cannot constitute proof of fraud . Similarly, the mere fact that the victim has incurred excessive expenses in relation to his salary is insufficient to demonstrate the existence of fraudulent maneuvers . Proof of the seller's fraud cannot result solely from the comparison of two technical inspections carried out a week apart, one implemented before the sale and the other after, at the buyer's request, which revealed defects “not sufficient for the validation of a statutory technical inspection”, since the purpose of a technical inspection is to verify that a vehicle is in good working order and in a satisfactory state of repair ”, according to Article R. 323-1 of the Road Traffic Code . However, according to the Court of Appeal of Bastia , a comparison of dates may be sufficient to establish the precipitation of a bank to guarantee itself and to testify to its fraudulent non-disclosure.

The plaintiff in the action must demonstrate both:

-  the material element of the fraud, i.e. the explicit or implicit maneuvers exercised against him by his contractual partner, with a view to provoking a mistake decisive of his consent ; 

-  the moral element of this “tort”, i.e. his contractual partner's intention to deceive .

Although proof is easy when fraud takes the form of a lie , pressure  or an insistent approach accompanied by artifices, falsehoods, lies or deceit , the issue is more complex in the case of fraudulent non-disclosure . The mere failure to comply with the requirements of information on prices laid down in Article L. 112-1 (former Article L. 113-3) of the Consumer Code is not sufficient to characterize dishonest acts or fraudulent maneuvers of the seller of a nature to cause the nullity of the contract . However, the Court of Cassation , carrying out a real reversal of the burden of proof, obliges the professional seller to demonstrate that it has fulfilled the obligation to provide information to its customer . In practice, the professional seller is more or less presumed to know the defects - present or past - of the thing sold. According to the Court of Cassation, the garage which repairs a vehicle that has been in an accident and then resells it without informing the buyer of the accident, is guilty of fraudulent non-disclosure . However, proof of intentional fraudulent non-disclosure by the professional seller of a used vehicle is not constituted, even though he failed to inform the buyer that as a result of an accident the vehicle had been declared “technically repairable” but “economically irreparable”, when the repairs had been carried out in accordance with standard practices . Likewise, the inspection of the vehicle for structural damage does not demonstrate the fraudulent intention of the seller when a hand-written statement of the former owner of the vehicle establishes that the buyer went to his home to inquire about the accident which damaged the vehicle .

 CA  Riom, 28 January 1980, LawLex200500006435JBJ; CA Paris, 19 January 1996, LawLex200500007523JBJ; CA Aix-en-Provence, 24 October 2024, LawLex202400008297JBJ: the purchaser of a building divided into three residences, the subdivision of which had not been authorized by the relevant authorities, failed to demonstrate the existence of fraudulent maneuvers on the part of the sellers, insofar as that information was communicated to him at the time of the notarial act, or was accessible from the relevant authorities, and as the absence of authorization can be rectified in the circumstances and does not prevent the use of the property for rental purposes.

 See in this regard the new Article 1105 which provides that “Contracts, whether or not they have a specific name, are subject to general rules, which are the subject of this sub-heading. Rules specific to certain contracts are set out in the specific provisions of each contract. The general rules shall apply subject to these specific rules.”

 CA Paris, 15 February 2007, LawLex200700000764JBJ, having characterized the fraudulent maneuvers of the seller due to the misleading indication he placed on the purchase order and invoice of the vehicle sold, according to which it was new, although the seller actually had it in stock for two years.

 CA Rennes, 18 February 1987, LawLex200700000922JBJ.

 Cass. com., 2 June 1981, LawLex200500006157JBJ, having held that in the absence of an unfair attitude of the seller, the buyer's frequent attempts to convince his future contractual partner to sell him his business cannot justify the annulment of the contract of sale, the mere insistence thus manifested not constituting a fraudulent maneuver.

 Cass. 3e civ., 15 February 2000, LawLex200500004992JBJ: the Court of Cassation thus recalled that the buyer of a property is only entitled to request the annulment of the contract of sale for fraud if he proves that the possibility of extending the property was a decisive element for his consent, and that the real estate project concerning the neighboring plot of land whose existence he was unaware of, was known to the seller, who knowingly failed to inform him.

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

  Cass. 1re civ., 15 May 2002, LawLex200500005850JBJ. The solution of the 1st Civil Chamber is not in contradiction with that of the Commercial Chamber of 26 June 2005, LawLex200600002444JBJ, which merely recalls the necessity to prove all the constituent elements of the fraud without, however, calling into question the distribution of the burden of proof.

 Cass. 1re civ., 30 April 2009, LawLex201200001268JBJ: to set aside the fraudulent non-disclosure of the seller of swimming pool covers, a court of appeal cannot merely state that the fact that the configuration of the buyer's pool makes it difficult, or even impossible, to install a cover, does not make it possible to infer that the seller voluntarily refrained from delivering to its customers the information relating to the adequacy between the cover and the pool itself. On the other hand, in the case of the non-professional seller, the buyer must prove that he was aware of the elements having determined his consent and that he knowingly failed to indicate them. For an application, see CA Aix-en Provence, 19 September 2006, LawLex200700000770JBJ: the mention “mileage non-guaranteed” on the invoice of the vehicle sold does not allow the sub-purchaser to establish knowledge of the erroneous nature of the mileage indicated on the vehicle's odometer by the intermediary seller who, as a reasonably well-informed individual, had no reason to suspect that the odometer had been tampered with, which was only apparent to the expert after much research.

  Cass. 1re civ., 3 December 2002, LawLex200700000789JBJ, overturning CA Versailles, 22 October 1999, LawLex200700000856JBJ, which held that it was not established that the commercial service of the garage which had sold the vehicle at issue had been informed of the accident, which had occurred four years earlier, and had intentionally failed to inform him to incite him to contract, even if the repairs had been carried out by this garage.

Cass. civ. 1re, 30 November 2016, LawLex201600002043JBJ.

 CA Montpellier, 20 March 2012, LawLex201300000636JBJ.

 CA Rennes, 18 February 1987, LawLex200700000922JBJ, having held that the combination of circumstances, i.e. the pressure exerted by the buyer on the seller, elderly and kept isolated at the time of signing the deed, constituted a set of serious, precise and concordant presumptions, such as to establish the existence of fraudulent maneuvers.

  CA Toulouse, 24 October 2012, LawLex201400000448JBJ.

 CA  Montpellier, 20 March 2012, LawLex201300000636JBJ.

 CA Paris, 4 February 2010, LawLex201200001272JBJ.

CA Montpellier, 12 September 2024, LawLex202400006447JBJ.

 CA Bastia, 18 June 1996, LawLex200700001066JBJ.

CA Versailles, 17 September 2024, LawLex202400006675JBJ: buyers of a photovoltaic installation have not provided any evidence of the alleged fraudulent tactics on the part of the selling company and of the profitability and self-financing of the installation, since an examination of the order form, the only document with contractual value, does not show that they had made the economic profitability of this installation a deciding factor in their consent.

 Cass. com., 28 June 2005, LawLex200600002444JBJ, recalling in particular the need to characterize the intentional element, in case of fraudulent non-disclosure.

French Consumer Law

379. Evidence

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379. Evidence

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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