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

Until the Hamon Law  , the provisions of the Consumer Code extended to “anyone who canvasses or has canvassing carried out, at the domicile of a natural person, at his residence or at his place of work, even at his request”. Since the terms were not specified, any form of solicitation could constitute canvassing. Since the Hamon Law, the Consumer Code no longer refers to canvassing, but to a “cont …

Solicitation by the professional

Before the reform introduced by Law No 89-421 of 23 June 1989 , the texts relating to doorstep selling did not specify whether they applied when the visit to the consumer's home was carried out at the consumer's request. Some trial judges considered that this did not constitute canvassing , but the Court of Cassation disagreed . In order to strengthen the protection of the consumer, the 1989 Law extended the scope of the regulation to include canvassing carried out at the consumer's domicile, residence or place of work, “even at his request”. The element triggering the protection is therefore not the initiative of the visit but its place. Since then, it is irrelevant whether the contact or even the home visit took place at the initiative of the individual: it is sufficient that the contract be signed at his domicile, for the contract to be subject to the law on canvassing . The reform carried out by the Hamon Law  does not go back on this solution, since the off-premises contract is defined as any contract concluded between a professional and a consumer, “including following a solicitation or an offer made by the consumer” (current Article L. 221-1). It is nevertheless necessary to distinguish between several hypotheses.

For obvious practical reasons, emergency repairs are not subject to the regulation of contracts concluded off-premises, the urgency requiring immediate intervention, whereas in the case of canvassing, the performance of any service before the expiry of the withdrawal period is in principle prohibited . This is why Article L. 221-10, 4° (former Article L. 121-18-2, 4°) of the Consumer Code exempts from the suspension “contracts whose purpose is maintenance or repair work to be carried out urgently at the consumer's home and expressly requested by him, within the limit of the spare parts and work strictly necessary to respond to the emergency”. However, the frequency of abuses led the trial courts to submit certain practices to the canvassing regime.

In particular, when the professional proposes goods or services which are not directly related to the urgency of the repair, the contract must include the mandatory information provided for in the Consumer Code and the withdrawal form, refer to the right of withdrawal, not give rise to any service and early payment , etc. The provisions relating to canvassing apply whenever the contract proposal made by the professional at the consumer's domicile exceeds the intervention requested : non-urgent work decided on the occasion of an emergency repair , replacement of defective equipment by more sophisticated equipment , etc.

According to the Court of Cassation, the mere visit by a professional to the consumer's domicile for the study of the premises and to take the necessary measures to establish an estimate, subsequently sent by post, does not constitute canvassing when on the occasion of this visit, no commitment was made by the consumer . For Articles L. 221-21 et seq. to apply, the meeting of wills must take place at the domicile  in the presence of the professional . Therefore, if the professional makes the visit at the customer's request and draws up the estimate during the visit, to have it immediately signed, it must comply with the formalities provided for in the Consumer Code  even in the case where the consumer withdrew from the contract after signing a previous purchase order .

The rules governing canvassing apply to a contract concluded at the consumer's domicile, even if it has been preceded by discussions during which not commitment was made by the person concerned . Thus, the formalization, at the consumer's domicile, of a pre-existing agreement, may be sufficient to entail the application of the relevant provisions of the Consumer Code . The trial judges must assess whether the commitments were made during the visit to the home . If this is the case, the existence and duration of the previous discussions have no influence on the application of the law on canvassing , nor indeed does the existence of contractual relations between the parties before the contract at issue .

For the Court of Cassation, the transmission, made at the consumer's home, of a purchase offer by a real estate agent does not constitute an act of canvassing where the latter has previously been entrusted with a mandate to search for buyers for his property. Indeed, such an act only characterizes the performance by the agent of a mandate previously concluded . Similarly, the signing of a reciprocal undertaking to sell at the consumer's home does not fall under the rules governing canvassing, when it is obtained not by the buyer of the property, but by the agent that the consumer mandated to proceed with the sale . On the other hand, the professional who goes to the consumer's home at his request, to carry out a free expert appraisal, and makes an offer to purchase the apartment at the end of the meeting, is subject to the rules laid down by the Consumer Code .

 Law No 89-421 of 23 June 1989 on information and protection of consumers and on various commercial practices, OJ 29 June 1989, 8047.

 TI Metz, 2 May 1991, LawLex200300002577JBJ.

 See Cass. 1re civ., 12 July 2012, LawLex201200002282JBJ; CA Grenoble, 24 February 2014, LawLex201400000609JBJ.

 See for an application that does not involve the application of the law on direct selling: CA Bordeaux, 26 January 1993, LawLex200300002581JBJ; Cass. civ. 1re, 9 December 2020, LawLex202100000268JBJ: the protective legislation on canvassing is only applicable if the estimate was accepted at the consumer's home in the presence of the professional.

 See Cass. crim., 19 December 1991, LawLex200300002836JBJ, upholding CA Nancy, 16 November 1990, LawLex200300002576JBJ; CA Colmar, 4 April 2011, LawLex201200001407JBJ.

 CA Amiens, 4 November 2016, LawLex201600001881JBJ.

 Cass. 1re civ., 30 March 1994, LawLex200300002666JBJ; CA Aix-en-Provence, 6 October 2015, LawLex201500001347JBJ.

  See, for an application, TGI Quimper, 21 September 2000, LawLex200300003282JBJ. Contra, CA Rennes, 3 December 2015, LawLex201500001829JBJ, holding that the fact that the contract has been signed with the consumer does not entail the application of the protective regulations in respect of contracts concluded off-premises where the facts show that the written document only constitutes the materialization of a considered consent to the proposed operation in its different aspects and a meeting of wills that occurred before the professional's visit to his domicile.

 Since this is a question of fact, it is a matter for the sovereign assessment of the trial judges, who will tend to protect consumers. See, for an application where the agreement on the purchase of a funeral monument takes place at the cemetery, but the purchase order is drawn up at the buyer's, the trial courts holding that the agreement was made at home: Cass. crim., 14 February 1991, LawLex200300002835JBJ. 

 CA Orléans, 19 September 1995, LawLex200300002589JBJ.

 CA Paris, 16 February 2012, LawLex201200001382JBJ: in this case, the real estate agency contacted by a former client had already had an exclusive mandate of sale from him. As the parties had renewed this same operation, the contract is annulled as it does not comply with the mandatory information of former Article L. 121-23 of the Consumer Code.

 Cass. 1re civ., 14 January 2010, LawLex201500001308JBJ.

 Cass. crim., 19 December 1991, LawLex200300002836JBJ, under the rules prior to the Law of 1989.

 Cass. 1re civ., 31 March  2011, LawLex201500001303JBJ.

 Cass. 1re civ., 3 July 2008, LawLex201500001305JBJ.

 Cass. 1re civ., 30 May 2012, LawLex201200001389JBJ. See also CA Rennes, 13 June 2008, LawLex201200001459JBJ; CA Riom, 16 December 2015, LawLex201500001830JBJ; CA Colmar, 2 May 2017, LawLex201800000630JBJ.

 Law No 2014-344 of 17 March 2014 on consumer affairs, OJ 18 March 2014, 5400.

 See the current Article L. 221-10 (former Article L. 121-18-2) Consumer Code. For a case of application, CA Bourges, 10 September 2009, LawLex201400001970JBJ.

 Cass. 1re civ., 3 March 1993, LawLex200300002825JBJ.

 CA Paris, 31 January 2013, LawLex201300001723JBJ.

 CA Caen, 7 April 1999, LawLex200300002597JBJ.

 CA Paris, 11 March 2002, LawLex200300004311JBJ.

Solicitation or offer made by the consumer

Until the Hamon Law  , the provisions of the Consumer Code extended to “anyone who canvasses or has canvassing carried out, at the domicile of a natural person, at his residence or at his place of work, even at his request”. Since the terms were not specified, any form of solicitation could constitute canvassing. Since the Hamon Law, the Consumer Code no longer refers to canvassing, but to a “contract concluded off-premises”, which covers three distinct realities. Articles L. 221-1 et seq. (former Articles L. 121-16 et seq.) of the Consumer Code cover any contract concluded between a professional and a consumer (i) in a place which is not that where the professional carries on his activity permanently or habitually, in the simultaneous physical presence of the parties, including following a solicitation or an offer made by the consumer; (ii) in the place where the professional carries on his activity permanently or habitually or by means of a remote communication technique, immediately after the consumer has been solicited personally and individually in a place different from the one where the professional carries on his activity permanently or habitually and where the parties were physically and simultaneously present; (iii)  or during an excursion organized by the professional having the purpose or effect of promoting or selling goods or services to the consumer. 

The solicitation of the consumer by the professional can take many forms.

In principle, telephone canvassing falls under distance selling, since the contract is concluded without the simultaneous presence of both parties . Even if Article L. 221-16 (former Article L. 121-20) introduced by the Hamon Law strengthens consumer protection by an increase in the obligations imposed on the professional, the regulations on contracts concluded off-premises remain more protective than those on telephone canvassing, in particular because the consumer solicited by telephone no longer has a right of withdrawal. In some cases, however, telephone solicitations appeared more to fall under the rules on doorstep selling than those governing telephone canvassing. It was thus considered that a simple telephone appointment by the professional, prior to his visit and to which the customer has given his consent, does not make it possible to rule out the classification of doorstep selling, since ultimately, the contract is concluded at the customer's domicile, in the presence of both parties . The rules governing canvassing also apply to the situation in which the professional proposes to individuals contacted by telephone the purchase of goods and then goes to their domicile to deliver the goods and have a delivery note signed . The same reasoning can be applied to solicitations made by post. It was thus held that the professional who deposits his business card and his contact details in a mailbox and then contracts at the domicile of the consumer who called him back, must respect the law on canvassing .

To escape the constraints of the rules governing doorstep selling or telephone canvassing, professionals who solicit customers at their domicile, by telephone or by letter, inform them that they have won a prize that they can collect from a store. Once there, the consumer is strongly encouraged to contract. A priori, the rules relating to canvassing do not seem applicable, as the contract was concluded in places intended for sales. Nevertheless, for the operation whose “sole purpose is to attract the consumer to the store to provoke the sale” , the Court of Cassation enshrined the application of the protective provisions on canvassing. The courts therefore annulled contracts concluded in such circumstances, when the obligations laid down by the current Articles L. 221-1 et seq. were not respected, insofar as the consumer had been invited to go to the store , to the stand of a fair , or to a hotel rented for the occasion  . For example, a company having invited consumers to come and collect a voucher for a trip, even though it was never offered and during the cocktail party they had to pay an administrative fee  , or a professional announcing the winning of a prize by telephone, although he was only offering a discount on a future purchase at his store , incurred the sanctions applicable to canvassing. The same was held when the professional sent a letter  or a circular letter  inviting the consumer to come and collect a gift in the store. However, doorstep selling was excluded in the case of the deposit of non-personalized advertisements in mailboxes with an invitation to come and collect a gift in the store , or sending a voucher exclusively to former customers of the store, without any obligation or incentive to purchase .

In the version resulting from the Hamon Law, Article L. 221-1 of the Consumer Code does not appear to cover these situations. In fact, the text includes in the concept of “off-premises contract” not only the contract concluded at the consumer's domicile, but also the one concluded “in the place where the professional carries on his activity permanently or habitually or by means of a remote communication technique, immediately after the consumer has been solicited personally and individually in a place different from the one where the professional carries on his activity permanently or habitually and where the parties were physically and simultaneously present”. By laying down the condition that the invitation be made in a place “where the parties were physically and simultaneously present”, the text excludes canvassing by phone or by post. In addition, the solicitation must be “personal and individual”, which seems to set aside invitations by non-individualized letter. Finally, the contract must be concluded “immediately after” the solicitation. Does the invitation to go to the store within fifteen days meet this condition?

 See, for an application under former Article L. 121-27, TI Douai, 21 August 1991, LawLex200300002966JBJ.

 Cass. crim., 5 May 2009, LawLex201200001412JBJ, the defendants also being prosecuted for misleading advertising.

 CA Agen, 18 February 1993, LawLex200300002582JBJ.

 Cass. 1re civ., 4 February 2015, LawLex201500000157JBJ.

 CA Montpellier, 12 January 1999, LawLex200300002601JBJ.

 CA Lyon, 17 June 2009, LawLex201200001418JBJ: the operation was considered to be equivalent to that of any ordinary store offering discounts announced by letter and loyalty gifts on handing over a coupon previously sent [...] that such proposals are extremely frequent and consequently very commonplace, and cannot fall within the scope of canvassing operations […]". See also, for a decision holding that, in the absence of pressure during the visit to the store, the qualification of canvassing sale cannot be retained, TGI Le Mans, 24 April 1995, LawLex200300002588JBJ.

 Cass. crim., 14 April 1993, LawLex200300002830JBJ; CA Poitiers TGI, 12 March 1992, LawLex200300002579JBJ

 Cass. crim., 12 October 1999, LawLex200300003653JBJ, upholding on that point  CA Paris, 8 September 1998, LawLex200400001228JBJ.

 CA Paris, 24 March 2009, LawLex201200001452JBJ.

 Cass. crim., 10 January 1996, LawLex200300002807JBJ, upholding CA Paris, 19 January 1995, LawLex200300003858JBJ; Cass. crim., 27 November 1996, LawLex200300003794JBJ, upholding CA Bordeaux, 27 June 1995, LawLex200300001690JBJ. See also TI Rennes, 17 April 1997, LawLex200300002593JBJ; CA Versailles, 29 October 1998, LawLex200300002610JBJ; CA Paris, 19 March 1999, LawLex200300001972JBJ.

 See for an application, CA Toulouse, 30 June 1998, LawLex200300002603JBJ.

 See TI Castres, 3 November 1994, LawLex200300002585JBJ.

 CA Paris, 22 March 2000, LawLex200300002800JBJ.

 CA Paris, 5 November 1998, LawLex200300002602JBJ, the defendants also being prosecuted for fraud.

French Consumer Law

456. Solicitation by the professional

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456. Solicitation by the professional

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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