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

According to Article 3 (1) of Directive No 93/13 of 5 April 1993, “a contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer”. Thus, transposition Law No 95-96 of February 1, 1995 replaced the concept of significant imbalance with that of “excessive advantage” imposed by an “abuse of the economic power” of the professional of Article 35 of Law 78-23 of January 10, 1978.

Neither the directive nor Article L. 212-1 (former Article L. 132-1) of the Consumer Code define the concept of significant imbalance, which had to be clarified by case law. According to the Court of Justice, to verify the existence of a significant imbalance, the court must analyze the national rules which would be applicable in the absence of an agreement between the parties, to assess whether and to what extent the contract places the consumer in a less favorable legal position that the one he would be in pursuant to these rules . A “significant imbalance” can therefore result from restrictions that the contract imposes on the rights which the consumer would benefit from national law, the obstruction of their exercise or imposing an additional obligation not provided for by the latter .

In French law, the assessment of the significant imbalance is first carried out in the light of clauses declared unfair by Decree No 2009-302 of 18 March 2009, codified in current Articles R. 212-1, R. 212-2 and R. 212-5 (former Articles R. 132-1 and R. 132-2) of the Consumer Code, which provides a list of “black” clauses presumed irrefutably unfair and a list of “gray” clauses presumed unfair, but for which the professional can demonstrate an absence of imbalance. When the disputed clause does not appear in either of the two lists, the courts can rely on the rules of interpretation laid down in Articles 1188 et seq. of the Civil Code (former Articles 1156 to 1161, 1163 and 1164) and on Article L. 211-1 (former Article L. 133-2) of the Consumer Code, pursuant to which “the clauses of contracts offered by professionals to consumers or non-professionals […]are interpreted in case of doubt in the sense most favorable to the consumer or non-professional”. The unfairness of a clause is also assessed by referring, at the time of the conclusion of the contract, to all the circumstances surrounding its conclusion, to all the other clauses of the contract and to those contained in another contract when the conclusion or execution of these two contracts legal depend on one another. Finally, the court may, although not bound by them, be guided by the recommendations and opinions of the Commission on Unfair Terms.

The court carries out a contextual evaluation on a case-by-case basis. A study of case law shows that an imbalanced clause is often represented by a lack of reciprocity - such a clause may give the professional a prerogative that the consumer or non-professional does not benefit from - ; no consideration - such as when the professional reserves the right to change the contract terms without allowing the consumer to terminate the contract  -; or may be of a potestative nature - the professional is given the discretionary right to perform its obligations .

  Case C-415/11 Aziz v Caixa d'Estalvis de Catalunya, Judgment of 14 March 2013, LawLex201300000362JBJ.

  Case C-226/12 Constructora Principado SA, Judgment of 16 January 2014, LawLex201400000030JBJ.

  See Cass. 1re civ., 14 November 2006, LawLex200600002421JBJ: a clause whose purpose or effect is to enable the professional to withhold sums paid by the customer when he decides not to perform the contract, without reciprocally providing for the right for the customer to obtain compensation of an equivalent amount from the professional who decides not to perform its contractual obligations, is unfair.

  See Cass. 1re civ., 14 November 2006, LawLex200600002427JBJ. Cf. Cass. 1re civ., 23 January 2013, LawLex201400000545JBJ, validating the clause when this option is offered.

 See CA Montpellier, 17 February 2004, LawLex200400001342JBJ: the mention "except with the company's approval" on a purchase order constitutes an unfair term.

411. Criteria for significant imbalance