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French Consumer Law

Information on delivery times is covered by two sets of provisions within the Consumer Code, Article L. 111-1, paragraph 3, and Articles L. 216-1 et seq. (former Articles L. 138-1 et seq.), resulting from the transposition into national law of Article 18 of Directive No 2011/83 , and Directives No 2019/770 and 2019/771 of 20 May 2019 by Ordinance No 2021-1247 of 29 September 2021. 
1)  Pre-contrac …

Information on delivery times

Information on delivery times is covered by two sets of provisions within the Consumer Code, Article L. 111-1, paragraph 3, and Articles L. 216-1 et seq. (former Articles L. 138-1 et seq.), resulting from the transposition into national law of Article 18 of Directive No 2011/83 , and Directives No 2019/770 and 2019/771 of 20 May 2019 by Ordinance No 2021-1247 of 29 September 2021. 

1)  Pre-contractual information obligation

Former Article L. 114-1 of the Consumer Code, in its version prior to the Hamon Law , imposed on the professional an obligation to inform the consumer of the deadline by which it undertook to deliver the product or to perform the service. Under Article R. 114-1 of the Consumer Code, only contracts with an agreed price exceeding EUR 500 were subject to Article L. 114-1. Since the Hamon Law, this obligation is now laid down in Article L. 111-1, paragraph 3, on pre-contractual information, which requires that “before the consumer is bound by a contract for the sale of goods or provision of services, the professional must communicate to the consumer, in a legible and comprehensible manner, the following information: […] in the absence of immediate execution of the contract, the date on which or the period within which the professional undertakes to deliver the goods or to perform the service”. In addition, there is no longer an agreed minimum price.

The obligation to inform the contractual partner on the delivery times of Article L. 111-1, paragraph 3, applies to all contracts for consideration binding on consumers, but does not concern relations between professionals  or the delivery of the goods or the immediate provision of a service. The professional is obliged to inform the consumer of the deadline by which it undertakes to deliver the goods or to perform the service, in whatever form, none being specified by the text. It is therefore for the court to decide on its lawfulness, which it does on a case-by-case basis.

Ordinance No 2021-1247 amended the “Delivery and Transfer of Risk” chapter of the Consumer Code to rename it “ Delivery, Supply and Transfer of Risk.”  According to Article L. 216-1, the professional delivers the goods or provides the service on the date or within the period indicated to the consumer, in accordance with Article L. 111 -1, 3°, unless otherwise agreed in the contract. In the absence of an indication or agreement as to the date of delivery or performance, the professional must deliver the goods or perform the service without undue delay and no later than thirty days after the conclusion of the contract . The law defines the delivery as the “transfer to the consumer of the physical possession or control of the good”. Since the adoption of Ordinance No 2021-1247, it has been clarified that “in the case of property with digital elements, delivery also includes the provision of those elements within the meaning of Section L. 224-25-4”. Therefore, the delivery obligation is only satisfied once the consumer is in possession of the good. Previously, where the texts were silent on this point, the concept of delivery was understood to mean the thing being made available, with the consumer having to be informed of the possibility for him to take possession of it . The seller also had to prove that the thing had indeed been made available to the buyer within the agreed time-limit . Amended Article L. 216-4 provides that the delivery or activation of the good is accompanied by the handing over of the instructions for use and the installation instructions as well as, if necessary, the commercial guarantee contract (warranty). According to amended Article L. 216-5, if necessary, the professional must indicate in writing to the consumer at the time of the purchase, the cost of delivery and installation of the good. A written document is left with the consumer when taking possession of the goods, specifying the possibility for the consumer to express reservations, in particular in the event of a defect in the goods or failure to provide the instructions for use or installation instructions, it being understood that “the absence of reservations expressed by the consumer when receiving the goods does not exempt the professional from the guarantee of conformity of the goods that the consumer is owed”.   

If the professional fails to fulfill its obligations on the date or at the end of the time-limit provided for in Article L. 216-1, paragraph 1, or, failing that, no later than thirty days after the conclusion of the contract, the consumer may, according to amended Article L. 216-6 (formerly L. 216-2) of the Consumer Code, the consumer may either notify the professional of the suspension of the payment of all or part of the price until the professional performs, under the terms of Articles 1219 and 1220 of the Civil Code, or rescind the contract if, after having given the professional formal notice to deliver or provide the service within a reasonable additional time-limit, the latter has not performed within that period, it being understood that “the contract is deemed to be terminated on receipt by the professional of the letter or document informing him of such termination, unless the professional has performed in the meantime” . The termination may nevertheless be immediate, in the event of refusal of delivery or provision of service or “where it is plainly obvious” that he will not deliver the goods or provide the service or that he has not performed his obligation to deliver within the time-limit, where the date or time-limit is an essential term of the contract for the consumer.According to Article L. 216-6, “this essential condition arises from the circumstances surrounding the conclusion of the contract or from an express request from the consumer before the conclusion of the contract”. Further, the application of Article L. 216-6 is without prejudice to the granting of damages. On the other hand, the fact that a consumer waives the termination of the contract of sale when he has been informed of the delay in delivery and unreservedly confirms the order, does not prevent him from seeking compensation for the damage caused to him by the delay in delivery . If the ordered products are partially delivered, the right to cancel the contract remains . This possibility only concerns cases in which the delivery times announced by the professional are exceeded. A buyer therefore cannot rely on it to obtain a termination motivated by the awareness of the financial burden assumed . In contrast, the representation of a consumer by a professional representative does not cause that consumer to lose the status of non-professional able to benefit from the provisions of the Consumer Code allowing him to terminate the contract if the delivery date of the purchased goods is exceeded .  Where no fault can be attributed to the professional and where the impossibility of carrying out the delivery is due to the negligence of the consumer, who did not take the precaution of checking the compatibility of the size of the goods purchased with the size of the premises, no increase in the restitution of the sale price is due following the rescission of the contract, which in such a case must be attributed to the buyer .

In addition, pursuant to Article L. 216-7 (former Article L. 216-3), the professional must refund to the consumer all sums paid, no later than fourteen days after the date of the termination. 

Under the earlier law , if the date of delivery of the goods or performance of the service was exceeded by seven days, not due to force majeure, former Article L. 114-1 of the Consumer Code authorized the consumer to terminate the contract of sale of moveable property or for the provision of services by registered letter with acknowledgement of receipt . For non-compliance with the delivery date to constitute a force majeure event, the event that caused it must, traditionally, be external to the parties, unforeseeable and irresistible . According to the courts, the seller cannot invoke, as a force majeure event, supply difficulties with its own supplier , the manufacturer's mistake concerning the object delivered , deadlines imposed by a subcontractor  or the accident suffered by the carrier's truck, when it is up to the seller, faced with such a situation, to take the necessary measures to ensure a timely delivery without waiting for the last day . Moreover, unless the contract stipulates otherwise, the last paragraph of Article L. 114-1 describes the sums paid in advance as a deposit, which meant that each contracting party could go back on its commitment, the consumer by losing the deposit, the professional by refunding the double .

 Directive No 2011/83, Art. 18: “1. Unless the parties have agreed otherwise on the time of delivery, the trader shall deliver the goods by transferring the physical possession or control of the goods to the consumer without undue delay, but not later than 30 days from the conclusion of the contract. 2. Where the trader has failed to fulfill his obligation to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph 1, the consumer shall call upon him to make the delivery within an additional period of time appropriate to the circumstances. If the trader fails to deliver the goods within that additional period of time, the consumer shall be entitled to terminate the contract. The first subparagraph shall not be applicable to sales contracts where the trader has refused to deliver the goods or where delivery within the agreed delivery period is essential taking into account all the circumstances attending the conclusion of the contract or where the consumer informs the trader, prior to the conclusion of the contract, that delivery by or on a specified date is essential.  In those cases, if the trader fails to deliver the goods at the time agreed upon with the consumer or within the time limit set out in paragraph 1, the consumer shall be entitled to terminate the contract immediately. 3. Upon termination of the contract, the trader shall, without undue delay, reimburse all sums paid under the contract. 4. In addition to the termination of the contract in accordance with paragraph 2, the consumer may have recourse to other remedies provided for by national law”.

  Former Article L. 114-1 was incorporated into Chapter IV Information on delivery times and Title One devoted to consumer information of the Consumer Code, provided for a right of termination in case of non-compliance with the delivery time and also addressed the payment of the deposit. Following the adoption of the Hamon Law, these provisions were moved to Articles L. 138-1 to L. 138-6 of Chapter VIII Delivery and risk transfer of Title III relating to the General conditions of contracts. Finally, the Re-codification Ordinance of 14 March 2016 transferred them to Articles L. 216-4 et seq., in Book II of the Code, relating to the formation and performance of the contract.

 CA Paris, 22 May 2001, LawLex200800001637JBJ; Lyon, 27 January 2005, cited above; CA Dijon, 21 June 2005, LawLex200800001619JBJ.

 Cass. 1re civ., 1 March 2017, LawLex201700000499JBJ.

CA Lyon, 30 September 2021, LawLex202100005556JBJ.

 CA Versailles, 5 June 1998, LawLex200800001633JBJ, the sending of a registered letter by which the buyer informs the seller that failing a timely delivery, he demands reimbursement of the deposit paid, constitutes termination of the contract. See also CA Colmar, 19 February 1998, LawLex200800001639JBJ, a letter of formal notice to take the thing back and to return the deposit constitutes termination of the contract.

 CA Grenoble, 28 April 2015, LawLex201500001405JBJ, on the allegation as a force majeure event of the Fukushima nuclear disaster.

 CA Versailles, 5 June 1998, LawLex200800001633JBJ.

 CA Paris, 21 January 1997, LawLex200800001644JBJ.

 CA Paris, 13 November 1997, LawLex200800001640JBJ.

 CA Paris, 12 September 1996, LawLex200800001643JBJ.

 The co-owners' association of a building was allowed to avail itself of this guarantee since, as it does not, strictly speaking, carry out a professional activity, it has the status of consumer vis-à-vis a seller, see CA Paris, 13 November 1997, LawLex200800001640JBJ.

 According to the court, the buyer's request for the return of double the amount can only succeed if the seller voluntarily terminates the contract (see Paris, 12 September 1996, op. cit.; Cass. 1re civ., 5 July 1996, LawLex200800001609JBJ), and only within the framework of an action based on former Article L. 114-1 (see CA Douai, 31 January 2007, LawLex200800001607JBJ).

Governed by Article L. 216-2 (formerly Art. L. 216-4) which provides that “any risk of loss of or damage to the goods is transferred to the consumer at the time when the consumer or a third party designated by the consumer takes physical possession of the goods” and Article L. 216-3 (formerly Art. L. 216-5) according to which "when the consumer entrusts the goods to a carrier other than the one proposed by the professional, the risk of loss of or damage to the goods is transferred to the consumer at the time when the goods are handed over to the carrier.

 Previously, when no time limit was specified, the consumer did not have this right to terminate, but could nevertheless require the delivery of the goods within a reasonable period of time (CA Paris, 13 November 1997, LawLex200800001640JBJ). The seller had to take an active approach in order to fix, by mutual agreement with the buyer, a date of delivery or performance of the service (CA Rennes, 18 May 2006, LawLex200800001614JBJ, CA Chambéry, 31 October 2006, LawLex200800001608JBJ). A review of case law reveals a great disparity of solutions at the time concerning the requirement to indicate delivery times. Although, under Article L. 114-1, indications of a delivery date “to be defined” (see Lyon, 27 January 2005, LawLex200800001629JBJ), a “two-month notice period” "(see CA Rennes, 25 March 2005, LawLex200800001625JBJ) or “November 2001 "(see CA Nancy, 16 October 2006, LawLex200800001610JBJ) were not considered satisfactory, the indication "first fortnight of September” (see CA Paris, 12 September 1996, LawLex200800001643JBJ) or “in January or February” (see CA Colmar, 19 February 1998, LawLex200800001639JBJ) were admitted.

 CA Grenoble, 23 March 1999, LawLex200800001626JBJ; CA Aix-en-Provence, 30 March 2000, LawLex200800001630JBJ; CA Besançon, 15 January 2002, LawLex200800001627JBJ.

 CA Douai, 19 January 2004, LawLex200800001634JBJ.

Before the Hamon Law,  former Article L. 114-1 of the Consumer Code provided that the termination should be made by registered letter with acknowledgment of receipt (CA Paris, 22 May 2001, LawLex200800001637JBJ, CA Lyon, 27 January 2005, cited above; CA Dijon, 21 June 2005, LawLex200800001619JBJ. The contract was regarded as terminated upon receipt of this letter by the seller or service provider, if the delivery had not occurred or the service had not been performed between the sending and the receipt of this letter. The consumer had a period of sixty working days from the date indicated for the delivery of the goods or the performance of the service.

 Cass. 1re civ., 12 May 2004, LawLex200800001571JBJ.

 CA Dijon, 14 November 2006, LawLex200800001606JBJ.

French Consumer Law

395. Information on delivery times

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395. Information on delivery times

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Les notions juridiques connexes

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