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French Consumer Law

The parties to the consumer contract may agree that at the end of the term, the professional will be refunded the costs it has incurred either by withholding sums advanced or goods deposited, or by the return of the goods by the consumer. The provisions of Article R. 212-1, 9 ° (former R. 132-1, 9 °) of the Consumer Code limit the validity of holdback clauses to those which do not have the purpose …

Holdback or restitution clause

The parties to the consumer contract may agree that at the end of the term, the professional will be refunded the costs it has incurred either by withholding sums advanced or goods deposited, or by the return of the goods by the consumer. The provisions of Article R. 212-1, 9 ° (former R. 132-1, 9 °) of the Consumer Code limit the validity of holdback clauses to those which do not have the purpose or effect of “allowing the professional to withhold sums paid for services not carried out by it, when it terminates the contract itself on a discretionary basis”.

Distinct from damages, the holdback must not, however, exclude the offsetting of the debts and claims of the parties to the contract and favor an unjust enrichment of the professional . This is not the case of the clause which provides for a remuneration of the non-renewed property management company for delivery of the dossier and file to its successor, although it is a legal obligation  or that which, in the consignment shop contract, automatically attributes the sale price to the professional after a certain period in the absence of recovery by the depositor, of the amounts obtained, without the professional being required to inform him of the sale .

In the absence of enrichment, the clause is not unbalanced. Also, in the event of cancellation of a vehicle order, the clause providing for the retention of any profits made by the motor vehicle seller on resale of the recovered vehicle is not unfair, since it is the counterpart of the costs and risks to which he is exposed . Similarly, the clause stipulating the withholding of the registration fee in all cases of cancellation of a journey is not unfair insofar as these costs, which cannot be considered as damages, are limited and justified by the cost of opening a file and cancelling the journey .

Clauses providing for a deferred refund of the security deposit paid at the time of the conclusion of the contract  and, a fortiori, those which do not provide for any time-limit for its return , are unfair. The Commission on Unfair Terms is of the view that it is unfair, in sectors where invoicing is almost immediate, to allow the professional to withhold the deposit after termination beyond a reasonable period of time . The same applies to the clauses under which the security deposit is refunded, after deduction of any costs related to restoration of the materials attributable to the customer without setting out the method of calculating the costs of the restoration and without the disorders being recorded in the presence of both parties , or which make the consumer bear, in the event of termination of the contract, the costs and risks of returning the equipment and oblige him to return it to a place chosen by the professional .

  TGI Nanterre, 10 September 2003, LawLex200300003918JBJ.

  CA Paris, 26 June 1998, LawLex200400001230JBJ.

  TGI  Bourgoin-Jallieu, 12 April 2000, LawLex200300002681JBJ; 21 June 2000, LawLex200300002563JBJ;  TGI Vienne, 22 June 2000, LawLex200300002683JBJ. Cf. CA Grenoble, 10 February 2003, LawLex200500009767JBJ, holding that the clause in a consignment shop contract which provides, failing the removal of the unsold item within fifteen days of the termination or expiry of the contract, for the possibility for the professional depositary to choose between its delivery at the expense of the depositor or its sale with recovery of the entire sum, is lawful.

   TGI Grenoble, 31 January 2002, LawLex200600002473JBJ; Cass. 1re civ., 5 July 2005, LawLex200600001643JBJ; 14 November 2006, LawLex200600002426JBJ and LawLex200600002427JBJ; CA Grenoble, 22 May 2007, LawLex201300000434JBJ.

   TGI Paris, 7 November 2000, LawLex200300002695JBJ.

   TGI Grenoble, 22 May 1997, LawLex200300001255JBJ.

   TGI Nanterre, 2 September 2003, LawLex200400000457JBJ and LawLex200400000459JBJ.

  CCA, Recommendation No 99-02 of 28 May 1999 on portable radiotelephone contracts, BOCCRF 27 July 1999; Recommendation No 13-01 of 6 June 2013 on non-seasonal leases of furnished accommodation, BOCCRF 13 September 2013, recommending the deletion of clauses making the return of the security deposit conditional on the occurrence of a certain number of events depending on the will of the lessor or its service providers and with no stipulation of a reasonable duration.

   TGI Paris, 15 September 2009, LawLex200900003180JBJ.

  CA Aix-en-Provence, 25 June 2008, LawLex201300000429JBJ, for telemonitoring equipment.

French Consumer Law

428. Holdback or restitution clause

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Les notions juridiques connexes

428. Holdback or restitution clause

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

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise