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

Article R. 212-1 of the Consumer Code considers irrefutably unfair clauses whose purpose or effect is to: “1° bind the non-professional or consumer to clauses not contained in the written document he accepts or which are reproduced in another document not expressly referred to at the time of conclusion of the contract and which he was not aware of prior to its conclusion” .
A clause referring to t …

Application to the referral clause

Article R. 212-1 of the Consumer Code considers irrefutably unfair clauses whose purpose or effect is to: “1° bind the non-professional or consumer to clauses not contained in the written document he accepts or which are reproduced in another document not expressly referred to at the time of conclusion of the contract and which he was not aware of prior to its conclusion” .

A clause referring to the general conditions is therefore lawful and constitutes their acceptance by the consumer when he was able to effectively read them at the time of the conclusion of the contract , otherwise the non-signature of the general conditions establishes the absence of acceptance . The same applies in the case of a purchase or reservation on the internet: the mechanism requiring the consumer to check a box stating that he has read the general conditions of sale is sufficient to make them enforceable towards him . In the absence of a mechanism of confirmation, by the internet user, of his knowledge of the general conditions, the clause sanctioning their breach is unfair .  On the other hand, a professional who does not ask the consumer on subscribing to its services online to save the general terms and conditions of sale even though he does not make them available on a durable and unalterable medium, risks having the clause implying full acceptance of those terms declared unfair .

To be enforceable, the referral clause and the general conditions referred to must be legible and clear . This is the case when the clause is written in bold type, just above the customer's signature, and the general conditions are written in clear and legible type, allowing them to be read without difficulty at the time of signature of the contract . Conversely, a warranty limitation clause embedded in a list of sections themselves broken down into paragraphs, included in a “table of guarantees” appended to the “general conditions” which the insured party acknowledges, by a printed notice, to have received, is unfair as it is not shown clearly and in very visible print in his specific contract . Similarly, the vehicle rental contract relating to the customer's acceptance of general conditions is unfair when they are hidden under the sheet concerning the condition of the vehicle .

Clauses implying an implicit acceptance of the terms of the contract even before the consumer has read them, are unfair . This is the case of the clause fixing the price, which refers to a scale that does not exist on the day of the conclusion of the contract and is therefore not appended to the contract , or the penalty clause appearing on the invoice of a mechanic, issued after the signing of the repair order . However, although a mere reference to the supplier's catalog of services - which was not provided to the consumer when he examined the supplier's general terms and conditions - does not constitute sufficient information on the estimated supply period, this deficiency can be corrected by the fact that the period of time is specified in the special conditions, and, in practice, is the same as the effective date of the contract .

Finally, the external document to which the contract refers must have been communicated to the consumer. For that reason a term which provides for the consumer's acceptance of provisions which do not appear in the written document he accepts, but in another document, including official documents , or in any other contract not attached to it, is irrefutably presumed to be unfair . The solution applies in particular to clauses which grant the professional a right of termination in the event of the consumer's failure to comply with the establishment's internal rules, a document external to the contract . On the other hand, while a court of appeal had considered to be unfair the clause in a lease contract provided for a separate contract with a particular operator for the supply of heating and hot water, on the grounds that the tariff conditions of this contract were not sufficiently detailed , another did not consider it to be unbalanced, considering that it is for the applicant lessee to ask for more complete information on the conditions of those services .

 Decree No 78-464 of 24 March 1978 had already expressly declared unfair "the clause whose purpose or effect is to bind the non-professional or consumer to contractual stipulations which are not contained in the written document he has signed", but the Article concerning this clause had been annulled by the Council of State, for being overly general, in a decision of 3 December 1980, LawLex201600000002JBJ.

 Cass. 1re civ., 10 April 1996, LawLex200300001225JBJ.

 TGI Nanterre, 9 February 2006, LawLex200600002481JBJ; CA Paris, 17 October 2014, LawLex201400001109JBJ; CA Paris, 17 October 2014, LawLex201400001109JBJ; 30 March 2018, LawLex201800000547JBJ; CA Versailles, 8 February 2019, LawLex201900000203JBJ, a clause under which the user who changes the plan during the contract period agrees to the general terms of the subscription in force at the date of the change; TGI Paris, 12 February 2019, LawLex201900000345JBJ and 9 April 2019, LawLex201900000884JBJ, holding that the clause under the terms of which registration followed by navigation on the social network site constitutes acceptance of the general terms of use of the latter, at a time when the consumer was unable to access them, is contrary to Article R. 212-1, 1° of the Consumer Code.

 CA Nîmes, 4 April 2013, LawLex201400000567JBJ.

 CA Aix-en-Provence, 23 February 2016, LawLex201600000515JBJ.

 CA Versailles, 16 November 2017, LawLex201700001891JBJ, overturning TGI Nanterre, 24 September 2015, LawLex201500001145JBJ which had held that the pre-contractual information essential to the consumer must not be dispersed. 

CA Paris, 12 October 2018, LawLex201800001505JBJ, holding that terms which define a reasonable use of the service by reference to the average rate from the observatory of markets published by the Arcep (Electronic Communications, Postal and Print media distribution Regulatory Authority) and are unfair if it finds that the consumer must agree to terms that are not included in the written document accepted.

 CA Grenoble, 22 November 2010, LawLex200600001687JBJ.

 CA Grenoble, 28 January 2013, LawLex201400001843JBJ; TGI Aix-en-Provence, 7 May 1992, LawLex200300001254JBJ.

 CA Lyon, 11 September 2001, LawLex200400001447JBJ.

 CA Paris, 5 June 2001, LawLex200400001576JBJ.

 Cass. 1re civ., 3 December 1991, LawLex200300001214JBJ: the clause on the signed front of a purchase order that refers to the general conditions of sale printed on the unsigned reverse is not unfair. See also TGI Paris, 16 April 1991, LawLex200300001253JBJ; CA Dijon, 30 March 1993, LawLex200400000389JBJ. Contra, TGI Grenoble, 31 January 2002, LawLex200400000916JBJ.

 CA Paris, 17 October 2014, LawLex201400001109JBJ.

 TGI Nanterre, 9 February 2006, LawLex200600002481JBJ; TGI Paris, 21 February 2006, LawLex200600001106JBJ; TGI Nanterre, 3 March 2006, LawLex200600001687JBJ.

CA Versailles, 8 February 2019, LawLex201900000203JBJ.

 Nevertheless, the referral by the telecommunications operator to its "commercial documentation" complies with the requirements of Article R. 212-1, 1° (former Article R. 132-1, 1°), which does not require a designation of the documents in question by their precise title, Cass. 1re civ., 3 June 2015, LawLex201500000711JBJ.

 See TGI Grenoble, 20 March 2003, LawLex200400000915JBJ, which adds that a single document printed on both sides allows for simple handling. See also CA Dijon, 30 March 1993, LawLex200400000389JBJ.

 CA Montpellier, 16 March 1994, LawLex200400000973JBJ.

 CA Grenoble, 11 June 2001, LawLex200400001463JBJ.

French Consumer Law

413. Application to the referral clause

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413. Application to the referral clause

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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