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

Provisions which provide for the suspension of the contract in the event of the consumer's failure to fulfill one of his contractual obligations merely trigger the mechanism of the non-performance exception . The breach must nevertheless be proved for the professional to be validly released from the performance of his obligations. Indeed, Article R. 212-1, 5°  of the Consumer Code presumes terms t …

Suspension of the contract

Provisions which provide for the suspension of the contract in the event of the consumer's failure to fulfill one of his contractual obligations merely trigger the mechanism of the non-performance exception . The breach must nevertheless be proved for the professional to be validly released from the performance of his obligations. Indeed, Article R. 212-1, 5°  of the Consumer Code presumes terms to be irrefutably unfair if their object or effect is to “oblige the non-professional or the consumer to perform his obligations even though the professional does not perform its own obligations to deliver or guarantee a good or its obligation to provide a service”.  

Even where the failure of the non-professional or consumer is effective, the use of the exception by the professional must remain proportionate. The clause must cover an obligation that is essential, and not purely accessory , and be accompanied by the protective mechanism of prior formal notice and a given deadline to remedy the situation . Moreover, the fact relied on to justify the implementation of the exception must be of a wrongful nature: it therefore cannot be constituted solely by the non-use of the service by a subscriber . Thus a clause reducing the scope of an unlimited offer without specifying that such a restriction may only apply in the case of a clear diversion from its purpose by the consumer, has been deemed unfair . On the other hand, a clause which allows the lessor of a stall to abandon his client's goods if the latter fails to pay his rent even after formal notice has been served without requiring him to sell them by auction, has been held no to be unfair, where the lessee was informed in advance of the consequences of non-performance .

 For an application, see CA Paris, 25 February 1998, LawLex200300001490JBJ, declaring the lawfulness of a clause providing for the suspension of the performance of an obligation due to the non-payment by the counterparty of the balance of a previous contract, for the same kind of service.

 TGI Paris, 16 March 1999, LawLex200300001877JBJ.

 TGI Nanterre, 3 March 1999, LawLex200300001875JBJ; 9 February 2006, LawLex200600002481JBJ.

 TGI Nanterre, 9 February 2006, cited above.

 CA Paris, 30 March 2018, LawLex201800000531JBJ.

CA Montpellier, 13 March 2019, LawLex201900000371JBJ.

Terms sanctioning breaches of contractual obligations by means of damages are lawful in consumer contracts provided that they comply with the requirements of reciprocity, proportionality and transparency. The reciprocity requirement was set out by the Commission on Unfair Terms in its Recommendation of 23 March 1990, in which it considered unfair terms whose purpose or effect is to “determine the amount of compensation payable by the non-professional or consumer who does not fulfill his obligations without providing for compensation of the same kind to the professional who fails to perform his duties” . Case law occasionally uses this criterion . In the absence of reciprocity, the clause must at least have a consideration . Also, the clause that allows the car dealer to deduct parking costs when the customer has not taken possession of the vehicle within the time-limit is lawful when, on signing the purchase order, the buyer has benefited from a price guarantee in return for the double obligation to pay for and take delivery of the vehicle . Similarly, the penalty clause stipulated in a mandate for the sale of real estate property without exclusivity, which requires the principal to pay twice the commission if he concludes the sale without the intervention of the agency which presented the buyer to him, is not unfair as its purpose is to guarantee the agent the remuneration of his work  and if the clause is limited in time . Finally, the absence of reciprocity is sometimes justified by the nature of the obligations on the parties; such is the case of a penalty clause providing for an increase of the legal interest rate and only applicable to the client, insofar as he alone is bound to an obligation of payment .

The requirement of proportionality is expressly referred to in Article R. 212-2, 3°  of the Consumer Code, which lays down a rebuttable presumption of the unfairness of clauses imposing on the non-professional or the consumer who does not perform its obligations, compensation of a manifestly disproportionate amount . A penalty clause which imposes on the lessee of a berth an occupancy indemnity equal to 400% of a monthly lease is manifestly disproportionate and therefore unfair . Similarly, the combination of a penalty clause and a termination indemnity in a finance lease agreement is disproportionate and consequently unfair if it leads the consumer to pay the lessor the equivalent of the price of the item, when the lessor has already received 17 lease payments and has been able to recover the vehicle in good condition and resell it .

Finally, clauses imposing late payment interest on the consumer must be especially transparent as to their method of calculation and starting point .

  CCA Recommendation No 91-02 of 23 March 1990, concerning certain clauses inserted in contracts concluded between professionals and non-professionals or consumers, BOCCRF of 6 September 1991, pt 18.

  See for an illustration in a telemonitoring contract, CA Aix-en-Provence, 25 June 2008, LawLex201300000429JBJ.

  TGI Nanterre, 10 September 2003, LawLex200300003918JBJ; TGI Nanterre, 4 February 2004, LawLex200400001245JBJ; 9 February 2006, LawLex200600002481JBJ; 3 March 2006, LawLex200600001687JBJ; CA Lyon, 6 November 2014, LawLex201400001268JBJ.

  CA Paris, 7 May 1998, LawLex200400000445JBJ.

  CA Grenoble, 10 January 2006, LawLex200700000624JBJ.

  CA Grenoble, 13 November 2000, LawLex200400001585JBJ.

CA Lyon, 14 January 2020, LawLex202000000085JBJ.

 CA Paris, 9 November 2017, LawLex201700001862JBJ; CA Versailles, 16 November 2017, LawLex201700001891JBJ.

  See on all the conditions of lawfulness of a penalty clause: TGI Paris, 21 February 2006, LawLex200600001106JBJ.

CA Paris, 20 January 2020, LawLex202000000101JBJ.

CA Nancy, 6 February 2020, LawLex202000000225JBJ.

French Consumer Law

425. Suspension of the contract

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

425. Suspension of the contract

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise