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

Under Article L. 212-1, paragraph 3 (former Article L. 132-1, paragraph 7) of the Consumer Code, “the assessment of the unfair nature of terms within the meaning of the first paragraph does not concern either the definition of the main purpose of the contract nor the adequacy of the price of, or remuneration for, the goods sold or the service offered, provided that the terms are written in a clear …

Definition of subject matter of contract

Under Article L. 212-1, paragraph 3 (former Article L. 132-1, paragraph 7) of the Consumer Code, “the assessment of the unfair nature of terms within the meaning of the first paragraph does not concern either the definition of the main purpose of the contract nor the adequacy of the price of, or remuneration for, the goods sold or the service offered, provided that the terms are written in a clear and comprehensible manner”. The Court of Justice has ruled in principle that clauses relating to the definition of the subject-matter of the contract are to be understood as those that lay down the essential obligations of the contract and, as such, characterize it .

The application of the article is often set aside in matters relating to insurance. In fact, the French Commission on Unfair Terms considers that warranty exclusion clauses relate to the main purpose of the contract . This is the case of the clause pursuant to which the child or person for whom the insured is civilly liable must not have the ownership or habitual custody of the vehicle , of that which stipulates that the insured only benefits from the total temporary disability guarantee when, as a result of an accident or illness, he is unable, as medically certified, to exercise any activity, professional or not, even part time , or which provides that the daily allowances will be paid for the period during which the insured person's state of health does not allow him, temporarily, to carry out any professional activity and specifies that the daily allowances will be paid to him until the date on which he can resume any professional activity whatsoever . The same solution applies to loss of employment guarantees: their effectiveness or the conditions of their implementation fall under the definition of the subject-matter of the contract and are therefore not subject to the control of their unfair nature . Finally, according to the Commission on Unfair Terms, clauses of insurance contracts relating to the amount of the guarantee due by the insurer  or which determine the insurable persons , also relate to the main subject-matter of the contract. Nevertheless, a clause under which the guarantee ends on the date of retirement of the insured person has been interpreted not as a clause defining the subject-matter of the guarantee but as a clause setting its limits and consequently subject to judicial review . In the field of telephony, the Court of Cassation considered that the duration of validity of the communication credit and that of the dedicated line participated in the definition of the main subject-matter of the contract relating to a prepaid telephone call and thus fell outside the scope of the review . In the banking sector, the courts consider that the terms of repayment of a loan are not ancillary but rather define the essence of the contractual relationship and therefore its subject matter . Consequently, a clause in a mortgage agreement which provides for the indexing of the loan on the value of the Swiss franc is not, when written in plain and intelligible language, subject to the review of unfair terms . This also applies to the clause in the mortgage loan agreement granted to a non-trading real estate undertaking  [société civile immobilière] under which the monthly payment can be amended every year according to the evolution of the construction cost index . Finally, for social media networks, a clause in the general terms of use that refers, under the heading of “confidentiality” and “respect for privacy”, to the way in which the manager of the social media platform collects and uses the user's personal content and data does not define the main purpose of the contract, which consists, for users, in accessing functionalities for interacting with acquaintances, creating groups of common interest, or sharing content .

 Case C-26/13 Kásler, Rábai v OTP Jelzálogbank Zrt, Judgment of 30 April 2014, LawLex201400000635JBJ.

 Commission des clauses abusives (CCA) Notice No 97-01 of 19 June 1997 concerning the contents of a travel cancellation guarantee; Notice No 08-01 of 17 April 2008 concerning an insurance policy guaranteeing against theft of a mobile telephone.

 CA Paris, 6 October 2017, LawLex201700001638JBJ.

 Cass. 1re civ., 3 May 2018, LawLex201800000679JBJ; 20 February 2019, LawLex201900000280JBJ, 13 March 2019, LawLex201900000365JBJ, 10 April 2019, LawLex201900000548JBJ and 24 October 2019, LawLex201900001291JBJ, on the "reporting currency" clause of such a loan.

Cass. 1re civ., 26 September 2018, LawLex201800001413JBJ.

TGI Paris, 9 April 2019, LawLex201900000884JBJ.

 Cass. 2e civ., 25 June 2015, LawLex201500001017JBJ.

 Cass. 1re civ., 10 September 2014, LawLex201500001519JBJ.

 Cass. 1re civ., 13 December 2012, LawLex201300000420JBJ.

 CA Douai, 25 February 2016, LawLex201600000500JBJ.

 CCA Notice No 09-01 of 3 December 2009 relating to a "water leakage post meter" insurance contract. See for example, CA Toulouse, 3 February 2016, LawLex201600000333JBJ.

 CCA, Notice No 03-02 of 16 October 2003 relating to an insurance contract supplementary to a loan: Cass. com. 8 July 2021, LawLex202100004647JBJ: the plaintiff, whose husband died following a road accident that occurred while he was driving a vehicle insured by his wife, is not entitled to invoke the unfair nature of the clauses of her car insurance contract which exclude from the driver's guarantee and from the guarantee for damage to the insured vehicle claims that occurred when the driver was under the influence of alcohol, since the clauses, which delimit the insured risk and the insurer's commitment and are drafted in a clear and comprehensible manner, define the main purpose of the contract, and therefore are not covered by the assessment of the unfair nature of contractual terms.

 CA Paris, 5 April 2016, LawLex201600000810JBJ.

  Cass. 1re civ., 3 June 2015, LawLex201500000711JBJ, and LawLex201500000687JBJ, upholding CA Paris, 6 December 2013, LawLex201300001783JBJ and LawLex201300001768JBJ. Contra: TGI Créteil, 1 July 2013, LawLex201300001137JBJ.

French Consumer Law

408. Definition of subject matter of contract

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408. Definition of subject matter of contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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