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French Consumer Law

Ordinance No 2016-131 of 10 February 10, 2016, reforming contract law, the general regime and proof of obligations  introduced a general duty of information, of public policy , in Article 1112-1 of the Civil Code.
According to the report made to the President of the Republic , the enshrinement of this pre-contractual duty of information, already widely accepted in case law and provided for, in par …

Pre-contractual information obligation

Ordinance No 2016-131 of 10 February 10, 2016, reforming contract law, the general regime and proof of obligations  introduced a general duty of information, of public policy , in Article 1112-1 of the Civil Code.

According to the report made to the President of the Republic , the enshrinement of this pre-contractual duty of information, already widely accepted in case law and provided for, in particular, in the Consumer Code, intervenes independently of the good faith obligation. According to the new Article 1112-1, “whichever party is aware of information which is of decisive importance for the consent of the other party, must inform it when, legitimately, he is unaware of this information or trusts his contractual partner” (paragraph 1), it being specified that “information which has a direct and necessary link with the content of the contract or the status of the parties” is considered decisive (paragraph 3) and the duty to inform cannot relate to the estimation of the value of the service  (paragraph 2). Paragraph 4 imposes on “the person who claims that information was due to him to prove that the other party owed it to him, with the other party being responsible for proving that it provided it”. Therefore, to establish that the debtor of the pre-contractual information obligation has not fulfilled it, it is necessary to demonstrate cumulatively the existence of decisive information for his consent (1), his legitimate ignorance or relationship of trust with his contractual partner (2) and the knowledge of such information by the debtor (3). In practice, proof of the meeting of these relatively subjective conditions may prove complex for the creditor.

Article 1112-1 specifies that “in addition to the person on whom it is incumbent, the breach of the pre-contractual duty of information may result in the annulment of the contract under the conditions laid down in Articles 1130 et seq.”. In other words, failure to comply with the duty of information may result in the debtor's liability being incurred - the contractual or non-contractual basis of which is not specified - and the nullity of the contract for defect of consent. However, failure to comply with Article 1112-1 can only form the basis of a right to compensation if it does not cause a mistake or fraud within the meaning of Articles 1130 et seq. This will be the case, in particular, according to the report to the President of the Republic, when a party who has negotiated for several months later discovers information that his contracting partner should have provided him with and refuses to conclude the contract. The report adds that while Article 1112-1 refers, like Article 1137, paragraph 2, enshrining fraudulent non-disclosure, to information decisive for the consent of the other party, the breach of such an obligation, in the absence of an intention to deceive, only leads in principle to the award of damages. Indeed, in accordance with the case law of the Court of Cassation , fraudulent non-disclosure only results in the nullity of the contract if it is intentional.

Although, on the surface, the boundary between the information required under Article 1112-1 and that resulting from the application of Article 1137 seems to be defined by intent, distinguishing between the knowledge of information whose importance is decisive for the consent of the other party within the meaning of Article 1112-1, and the concealment by a contracting party of information he knows to be decisive for the other party, within the meaning of Article 1137, will in practice no doubt raise serious difficulties. In addition, non-compliance with these provisions may incur the same sanction: Article 1137 may also lead, in case of fraud going to the root of the contract ("dol principal"), to the cumulation of the nullity of the contract and liability, or, when the fraud is incidental, only result in damages, However, Article 1112-1 seems to have a far narrower scope than Article 1137. First, its field of application remains limited to contracts preceded by a phase of negotiation. Then, its conditions of implementation are much more limited: the ignorance of the information by the creditor of the information obligation must be legitimate, whereas it is always excusable within the framework of fraud (Article 1139, 1st sentence); decisive information within the meaning of Article 1112-1 can only relate to the content or parties to the contract, although there is no limitation within the framework of fraud and it may relate to the value of the benefit or a simple motivation of the contract (Article 1139, 2nd sentence).

According to the case law, the existence of an additional tax to the tax on vehicle registration certificates, aimed at luxury vehicles with more than 36 HP, the introduction of which was only a few weeks old at the date of the contract of sale, but which had been planned for longer, and which does not constitute an essential characteristic of the good, within the meaning of Article L. 111-1 of the Consumer Code, is a fiscal measure and information of a general, public and accessible nature, which the potential purchaser of a vehicle cannot legitimately ignore, nor can it be used to request the cancellation of the sale on the basis of Article 1112-1 of the Civil Code . The information required by Article 1112-1 of the Civil Code relates to a circumstance, an important fact, of which a party is not expected to be aware, and about which he cannot be reasonably expected to question his co-contractor, so that neither the property tax nor the mention of an erroneous amount of the latter falls within the scope of this provision . On the other hand, the fact that a vehicle is of foreign origin, and that the purchaser must therefore pay an environmental penalty when it is first registered in France, constitutes essential information within the meaning of Article 1112-1 of the Civil Code, which must be brought to the purchaser's attention by the seller . Similarly, the obligation to create two parking spaces as a result of a change in the destination of the property initiated by the seller may constitute information whose importance is decisive for the consent of the other party, within the meaning of Article 1112-1 of the Civil Code, if the seller is aware of this .

  Civil Code, Article 1112-1, paragraph 5: “The parties can neither limit nor exclude this duty”.

 Report to the President of the Republic on Ordinance No 2016-131 of 10 February 2016 on the reform of contract law, the general regime and proof of obligations, OJ of 11 February 2016.

 This paragraph incorporates the principle according to which the mistake as to the value is irrelevant.

  Cass. com., 28 June 2005, LawLex200600002444JBJ: “the breach of a pre-contractual information obligation, assuming it is established, is not sufficient to characterize fraudulent non-disclosure, if there is no finding of the intentional nature of this breach and a decisive mistake caused by it”. The Court of Cassation issued this judgment to put an end to a certain deviation of the trial judges who regularly sanctioned the non-performance of an obligation to provide information under fraudulent non-disclosure, sometimes even in the absence of any intention to deceive (see not., Cass. 1re civ., 3 December 2002, LawLex200700000789JBJ).

CA Douai, 12 January 2023, LawLex202300001069JBJ.

CA Douai, 1 February 2024, LawLex202400000852JBJ.

CA Aix-en-Provence, 1 February 2024, LawLex202400000872JBJ.

French Consumer Law

384. Pre-contractual information obligation

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384. Pre-contractual information obligation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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