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

It is established that clauses whose purpose or effect is to remove or reduce the right to compensation for the damage suffered by the non-professional or consumer in case of breach by the professional of any of its obligations are irrefutably presumed to be unfair . Accordingly, under Articles 1231 et seq. of the Civil Code, the consumer or non-professional is entitled to claim effective compensa …

Compensatory indemnity

As Article R. 212-1, 6° (former Article R. 132-1, 6°) of the Consumer Code prohibits clauses whose purpose or effect is to eliminate or reduce the user's right to compensation in the event of a breach by the professional of its obligations, any contractual warranty clause which, directly or indirectly, prevents the buyer from fully benefiting from a legal guarantee, is unfair.

1)  Respective areas of legal and contractual warranty

Warranty against latent defects, found in Article 1641 et seq. of the Civil Code and the guarantee of conformity provided for in Articles L. 411-1 et seq. (former Articles L. 211-4 et seq.) of the Consumer Code, are often called into question by contractual guarantees which are more restricted in their scope or by the confusion created between these warranties in the minds of consumers.

Thus, in the case of automobiles, the contractual warranty clauses often exclude the manufacturer's liability and provide that the buyer can only act against the seller. Contrary to the rules on warranties against latent defects, which permit direct action against the manufacturer, they are systematically declared unfair by case law . The same applies to clauses which grant the consumer only a very short period of time  and impose specific formalities on the consumer to declare the non-conformity , limit the guarantee to defects reported at the time of acceptance of the work and mentioned in the completion of works certificate  , or equate the  fact that no reservations were expressed by the buyer on the delivery note with a refusal to challenge the conformity of the product with the order . Similarly, the clause in a contract of sale which stipulates that the repair of the thing in the event of a defect cannot have the effect of extending the warranty period is unfair, because it avoids the legal obligation to add any period of immobilization of at least seven days to the remaining duration of the guarantee within the meaning of Article L. 217-16 (former Article  L. 211-16) of the Consumer Code .

Furthermore, the professional cannot exclude certain heads of damage from its contractual guarantee, by suggesting that they are also not covered by the legal guarantee. This is the case of the general exclusion of liability for phenomena related to the normal use of the thing , the non-coverage of the indirect consequences of a possible defect, such as operating losses and the long period of immobilization , or incidental damage in the event of hidden defects .

Finally, the professional cannot present as being covered by its contractual guarantee obligations falling under the legal guarantee, such as the coverage of material, installation or manufacturing defects , unless it expressly states that the buyer can retain the legal guarantee against all the consequences of hidden defects . However, the fact of placing the reference to the legal guarantee against hidden defects in a purchase order at the end of the general conditions concerning the contractual guarantee, cannot be regarded as of such a nature as to lead, in the mind of the buyer, to confusion as to the exact extent of his rights to the seller's guarantee, and in particular on the manner of exercising these two actions . Similarly, the clause which unambiguously reserves, in view of its wording, its location in the contract and its context, the obligation to entrust a vehicle to an approved repairer solely for the repairs covered by the contractual guarantee, is not unfair .

Since the Hamon Law of 17 March 2014, to avoid any confusion, Article L. 217-15, paragraph 3 (former Article L. 211-15, paragraph  3), of the Consumer Code requires the professional to state clearly and precisely that, “irrespective of the commercial guarantee, it remains liable for the legal guarantee of conformity mentioned in Articles L. 217-4 to L. 217-12 of this Code and that relating to defects of the thing sold, under the conditions laid down in Articles 1641 to 1648 and 2232 of the Civil Code” and to reproduce in full the text of Articles L. 217-4, L. 217-5, L. 217-12 and L. 217-16 of the Consumer Code, as well as Article 1641 and the first paragraph of Article 1648 of the Civil Code.

According to the established case law of the trial courts, motor vehicles are common products whose maintenance, repair or revision may be carried out under sufficient conditions of safety by any operator, even if it is not a member of the network . Consequently, the clause in an automobile sales contract which excludes the manufacturer's warranty simply because the vehicle has been serviced or repaired outside the network by operators not approved by the manufacturer is unfair because, as a general rule, it obliges the buyer to use exclusively the services of an approved repairer and excludes the guarantee even if the interventions of the third party to the network are unrelated to the failure or defect of the vehicle . The same applies to the ambiguous clause which suggests such an exclusion .

However, case law accepts that the manufacturer may be exempted from liability for damage caused by external causes where it has not been able to exercise control over the replaced parts or the treatment of the materials carried out by the third party . Similarly, the clause requiring the consumer to entrust his vehicle to a dealer or authorized agent for repairs carried out under the contractual guarantee does not create any significant imbalance to the detriment of the consumer. When the manufacturer covers the repair free of charge, it may require the prior certification and approval of the repairer . Moreover, the clause which makes the implementation of the contractual guarantee conditional upon the manufacturer's ascertainment of the reality of the alleged defects is not unfair when it does not prevent the consumer from challenging the diagnosis made . Finally, clauses which exclude the manufacturer's warranty due to a repair outside the network when it is established that the damage is related to this repair  are lawful.

When the consumer is granted the benefit of the contractual warranty, the replacement of defective parts by new parts entails the transfer of ownership of the defective parts to the professional. According to the Court of Cassation, the consumer has no interest in keeping the defective part , even as a means of proof in the event of a dispute . However, when the guarantee is refused, the clause that provides for the destruction of parts or their return to the owner at his request and at his expense, remains lawful by virtue of the rules concerning the deposit agreement. Indeed, such a provision does not prevent the return of the part, but only charges the return costs to the depositor, in accordance with Article 1942 of the Civil Code .

 TGI Grenoble, 6 September 2001, LawLex200300002678JBJ; 31 January 2012, LawLex200400000916JBJ, upheld by CA Grenoble, 1 June 2004, LawLex200400002696JBJ and Cass. 1re civ., 14 November 2006, LawLex200600002421JBJ; CA Grenoble, 16 March 2004, LawLex200400001288JBJ approved by Cass. 1re civ., 14 November 2006, LawLex200600002422JBJ; CA Grenoble, 7 November 2011, LawLex201400001861JBJ.

 CA Paris, 30 March 2018, LawLex201800000547JBJ.

 CA Grenoble, 16 March 2004, LawLex200400001288JBJ; Cass. 1re civ., 5 July 2005, LawLex200600001643JBJ.

 Cass. 1re civ., 14 November 2006, LawLex200600002422JBJ, cited above.

 CA Paris, 5 June 2005, LawLex201500000724JBJ and LawLex201500000724JBJ.

 TGI Grenoble, 31 January 2002, LawLex200300002558JBJ, LawLex200400000916JBJ, LawLex200600002473JBJ and LawLex200700000678JBJ; CA Grenoble, 30 March 2004, LawLex200400000747JBJ.

 CA  Grenoble, 1 June 2004, LawLex200400002696JBJ; 10 January 2006, LawLex200700000624JBJ; Cass. 1re civ., 14 November 2006, LawLex200600002421JBJ, LawLex200600002426JBJ, LawLex200600002427JBJ.

 E.g. Cass. 1re civ., 20 March 2013, LawLex201300000416JBJ.

 CA Grenoble, 10 February 2004, LawLex200400002789JBJ; 7 November 2011, LawLex201400001861JBJ; Cass. 1re civ., 14 November 2006, LawLex200600002421JBJ, cited above. 

 Cass. 1re civ., 20 March 2013, cited above.

 CA Paris, 5 June 2015, LawLex201500000724JBJ and LawLex201500000724JBJ, cited above.

  CA Grenoble, 10 January 2006, op. cit. ; Cass. 1re civ., 14 November 2006, LawLex200600002422JBJ, cited above; CA Grenoble, 22 May 2007, cited above; 7 November 2011,cited above; CA Paris, 5 June 2015, LawLex201500000706JBJ.

 TGI Paris, 16 April 1991, LawLex200300001253JBJ; CA Dijon, 30 March 1993, LawLex200400000389JBJ; TGI Bordeaux, 11 March 2008, LawLex200800000346JBJ. See also, on latent defects, TGI Grenoble, 20 March 2003, LawLex200400000915JBJ.

 Cass. 1re civ., 14 November 2006, LawLex200600002421JBJ. See also CA Grenoble, 22 May 2007, LawLex201300000434JBJ.

 Cass. 1re civ., 14 November 2006, LawLex200600002421JBJ, LawLex200600002426JBJ, LawLex200600002422JBJ,

 Cass. 1re civ., 14 November 2006, LawLex200600002427JBJ.

 CA Grenoble, 2 November 1998, LawLex200300001243JBJ.

 TGI Paris, 4 February 2003, LawLex200300001098JBJ.

 Cass. 1re civ., 14 November 2006, LawLex200600002427JBJ. Contra: CA Grenoble, 30 March 2004, LawLex200400000747JBJ.

 TGI Grenoble, 6 September 2001, cited above.

 CA Grenoble, 10 January 2006, LawLex200700000624JBJ; CA Paris, 5 June 2015, LawLex201500000724JBJ.

 CA Grenoble, 22 May 2007, LawLex201300000434JBJ.

 TGI Grenoble, 31 January 2002, LawLex200300002558JBJ.

Contractual warranty

It is established that clauses whose purpose or effect is to remove or reduce the right to compensation for the damage suffered by the non-professional or consumer in case of breach by the professional of any of its obligations are irrefutably presumed to be unfair . Accordingly, under Articles 1231 et seq. of the Civil Code, the consumer or non-professional is entitled to claim effective compensation for his injury, in the absence of any external cause of exemption.

In the past, contracts for the development of photographic films led to a great deal of litigation. Very often, these contracts contained clauses limiting the professional's liability to the replacement of the lost or damaged film, without providing for compensation for the moral or emotional injury of the consumer. In order to guarantee fairer compensation, case law first extended the application of Article R. 212-1 of the Consumer Code which, initially, only expressly referred to the contract of sale, to the development contract, on the grounds that it combined a sale and a provision of services . It declared clauses limiting liability unfair , unless they reserve the right for the consumer to opt for a non-flat rate compensation or to specify, before the conclusion of the contract, the particular importance of the film entrusted . To be valid, this clause must allow for a real prior negotiation, which is difficult to establish in the case of depositing films at a self-service kiosk , which relates to the compensation offered and not to the price of the service .

In general, case law penalizes flat-rate compensation clauses which do not provide for compensation for the damage actually suffered , such as those which limit to EUR 150 the amount of compensation paid in the event of non-performance of the professional's commitments  or to twice the amount of the fees received , or which exclude compensation for non-material or emotional  or even material and physical injury . The fact that the limitation of the compensation results from the consumer's own declaration of value does not call into question the unfairness of the clause . Similarly, any clause which suggests to the consumer that he is only entitled, in the absence of an external cause, to the reimbursement of his deposit plus interest and thus discourages him from taking legal action, is unfair . On the other hand, the clause which merely excludes any joint and several liability between the architect and the other parties involved in a project is lawful since it does not call into question his liability towards the customer for faults committed in the exercise of his mission . The same applies, a fortiori, to the clause which does not provide for the way in which the project owner is to be compensated in case of non-performance of the works due to the fault of the builder, although it lays down a flat-rate compensation for the builder in the event of a fault on the part of the project owner, since it does not exclude the liability of the builder, but only the principle of a flat-rate compensation . Lastly, a clause which makes compensation contingent on the prior request by the consumer regarding him or herself to be the victim of an interruption of service does not create any significant imbalance in the rights and obligations of the parties .

 Consumer Code, Article R. 212-1 6° (former Article R. 132-1 6°).

 Cass. 1re civ., 25 January 1989, LawLex200400001311JBJ; 6 June 1990, LawLex200400001312JBJ.

 CA Rouen, 27 March 2008, LawLex201300000625JBJ.

Cass, 1re civ., 11 December 2019, LawLex201900001520JBJ.

 TGI Grenoble, 6 September 2001, LawLex200300002678JBJ, upheld by CA Grenoble, 16 March 2004, LawLex200400001288JBJ; CA Grenoble, 22 May 2007, LawLex201300000434JBJ. See also, declaring the clause unfair even if it provides for the consumer's right to take legal action, TGI Paris, 21 February, 2006, LawLex200600001106JBJ.

 CA Montpellier, 23 October 2014, LawLex201400001251JBJ.

 CA Paris, 11 March 2016, LawLex201600000659JBJ.

CA Paris, 12 October 2018, LawLex201800001505JBJ.

 Cass. 1re civ., 14 May 1991, LawLex200300001213JBJ, upholding TI Béthune, 28 September 1989, LawLex200400001336JBJ; CA Lyon, 18 July 1991, LawLex200300002010JBJ.

 Cass. 1re civ., 24 February 1993, LawLex200300001894JBJ, for a contract for the copying of video cassettes; CA Paris, 1 December 1998, LawLex200300002041JBJ and CA Versailles, 8 June 2001, LawLex200300002679JBJ, for a contract for the development of films and, a contrario, CA Aix-en-Provence, 20 September 1995, LawLex200300001237JBJ; CA Bordeaux, 28 February 1996, LawLex200300002052JBJ.

 CA Aix-en-Provence, 3 September 1997, LawLex200300001915JBJ.

 Cass. 1re civ., 19 June 2001, LawLex200400001144JBJ.

 TGI Nanterre, 9 February 2006, LawLex200600002481JBJ; TGI Paris, 13 September 2006, LawLex200700000677JBJ; TI Béthune, 5 April 2007, LawLex200700000654JBJ; CA Paris, 3 April  2008, LawLex200800002232JBJ; TGI Paris, 17 May 2016, LawLex201600001000JBJ.

 CA Riom, 18 June 2014, LawLex201400002194JBJ.

 Cass. 1re civ., 4 February 2016, LawLex201600000332JBJ. 

 TGI  Saint-Etienne District Court, 19 March 1996, LawLex200400000596JBJ.

French Consumer Law

423. Compensatory indemnity

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Les notions juridiques connexes

423. Compensatory indemnity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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