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

Pursuant to former Article 1184 of the Civil Code, the cancellation of the contract due to a non-performance could only be obtained through legal action. In contracts involving sequential performance, however, the parties could agree to sanction contractual breaches by an express rescission clause. In the presence of such a stipulation, the court seized had no margin of assessment: the fulfillment …

Substantive conditions

Pursuant to former Article 1184 of the Civil Code, the cancellation of the contract due to a non-performance could only be obtained through legal action. In contracts involving sequential performance, however, the parties could agree to sanction contractual breaches by an express rescission clause. In the presence of such a stipulation, the court seized had no margin of assessment: the fulfillment of the resolutive condition provided for in the contract automatically entails its cancellation. Articles 1224 et seq. of the Civil Code, resulting from the Ordinance reforming contract law of 10 February 2016, now place on the same level the cancellation resulting either from the application of a rescission clause or, in case of a sufficiently serious breach, from a notification from the creditor to the debtor or from a court decision. Without prejudice to the validity of rescission clauses in principle, Articles R. 212-1, R. 212-2 and R. 212-5 of the Consumer Code strictly govern their conditions of application.

Deemed irrefutably unfair are clauses whose purpose or effect is:

-  to prohibit the non-professional or the consumer from seeking the rescission or termination of the contract in the event of non-performance by the professional of its obligations to deliver or guarantee a good or of its obligation to provide a service ;

-  to recognize the right of the professional to terminate the contract on a discretionary basis without recognizing the same right to the non-professional or the consumer ;

-  to allow the professional to withhold sums paid in respect of services not performed by it, when it terminates the contract itself at its own discretion ;

-  to make the termination of contracts of an indefinite period subject to a longer notice period for the non-professional or consumer than for the professional ;

-  in contracts of an indefinite period, to make the termination by the non-professional or the consumer subject of the payment of compensation for the benefit of the professional .

Only presumed unfair, with the professional being able to produce evidence to the contrary, are clauses whose purpose or effect is:

-  to give the professional the right to terminate the contract without a reasonable notice period ;

-  to make the cancellation or termination of the contract subject to terms and conditions more stringent for the non-professional or consumer than for the professional .

Pursuant to these texts and the power of assessment which they derive from Article L. 212-1, the courts consider unfair the clause which does not define with sufficient clarity the breaches entitling the professional to terminate the contract . The clause must sanction a fault of the consumer or non-professional and not be based on the purely discretionary decision of the professional .  The option to terminate offered to the professional must not be based on a cause external to the contract . It must also enable the consumer or non-professional to terminate the contract for a legitimate reason , without limiting the list of available grounds . In particular, clauses conferring an irrevocable duration on the contract, without providing for the possibility of early termination on legitimate grounds, are unfair . However, according to the Paris Court of Appeal, the mere fact that the terms relating to cases of termination not creating charges for the subscriber do not mention force majeure or the existence of a legitimate reason, does not render them unfair, provided that they do not prevent the subscriber from relying on such circumstances where applicable . Finally, as expressly required by Article R. 212-1, 8°, the rescission clause is only valid on the condition of reciprocity: the professional cannot reserve this prerogative for itself .

 TGI Paris, 5 April 2005, LawLex201400000289JBJ; TGI Nanterre, 9 February 2006, cited above; CA Versailles, 9 September 2010, LawLex201400001874JBJ; CA Paris, 10 December 2015, LawLex201500001731JBJ; CA Colmar, 23 January 2020, LawLex202000000106JBJ, penalizing the clause in a teaching agreement which only allows the student to be released from his/her commitment in the event of force majeure or exceptional and serious circumstances, subject to the assessment of the establishment, which makes its decision and does not allow recourse to appeal.

 TGI  Quimper, 24 April 2001, LawLex200400001247JBJ upheld by CA Rennes, 26 September 2002, LawLex200300002684JBJ; TGI Nanterre, 10 September 2003, LawLex200300003918JBJ; CA Versailles, 4 February 2004, LawLex200400000451JBJ.

  Cass. 1re civ., 26 October 2004, LawLex200400003311JBJ, overturning CA Agen, 6 May 2002, LawLex200500010337JBJ; and, on referral, CA Toulouse, 19 January 2006, LawLex200600001606JBJ; CA Paris, 23 February 2006, LawLex200600001603JBJ; CA Reims, 7 May 2007, LawLex201300000578JBJ.

CA Paris, 12 October 2018, LawLex201800001505JBJ.

  CA Grenoble, 2 November 1998, LawLex200300001243JBJ; TGI Paris, 7 September 1999, LawLex200300001882JBJ; CA Nîmes, 20 June 2002, LawLex200400001448JBJ; TGI Nanterre, 9 February 2006, cited above; 3 March 2006, LawLex200600001687JBJ; CA Grenoble, 7 November 2011, LawLex201400001861JBJ; CA Paris, 10 October 2019, LawLex201900001209JBJ.

 Consumer Code, Article R. 212-2 4°. For an application, see CA Grenoble, January 28, 2013, LawLex201400001843JBJ.

  CA Versailles, 15 September 2005, LawLex200500009927JBJ; Cass. 1re civ., 14 November 2006, LawLex200600002422JBJ.  Conversely, validating clear terms, TGI Paris, 20 October 1998, LawLex200300001256JBJ; CA Caen, 13 March 2008, LawLex200800001237JBJ. Cf. TGI Paris, 21 February 2006, LawLex200600001106JBJ, holding that the inclusion of an automatic termination clause in a service contract in the event of serious or repeated violation of one of one of the clauses of the general conditions of sale is lawful, even if the list of cases giving rise to termination is not exhaustive.

 TGI  Brest, 21 December 1994, LawLex200400000477JBJ; CA Paris, 29 May 1997, LawLex200300002038JBJ; TI Rennes, 8 August 2000, LawLex200400001707JBJ; CA Dijon, 8 November 2001, LawLex200400001346JBJ; TGI Nanterre, 4 February 2004, LawLex200400001245JBJ; TI Saintes, 4 January 2006, LawLex200600001626JBJ; TGI Nanterre, 9 February 2006, LawLex200600002481JBJ; CA Rennes, 4 March 2016, LawLex201600000600JBJ; TJ Paris, 9 June 2020, LawLex202000000514JBJ, for a clause conferring on the professional a discretionary power of assessment of any breach by the consumer and of the reasons that would lead him to terminate the contract, and consequently an exclusive right to interpret a term in the contract to his own advantage.

Cass. 1st civ. 5 June 2019, LawLex201900000750JBJ, holding that the clause in a loan contract concluded between an employee and his employer which provides for the immediate termination of the contract in the event of the employee's resignation, i.e. for a cause external to the loan contract itself, is unfair; CA Paris, 6 February 2020, LawLex202000000208JBJ, a clause allowing a banking institution to cause a loan to lapse, for reasons other than a breach of contract, such as the death of the borrower.

French Consumer Law

429. Substantive conditions

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Les notions juridiques connexes

429. Substantive conditions

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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