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

To guarantee the consumer's complete freedom to exercise the right of withdrawal granted to him by Article L. 221-18 (former Article L. 121-21) of the Consumer Code, Article L. 221- 10 (former Article 121-18-2) provides that “the professional may not receive any payment or consideration, in any form whatsoever, from the consumer before the expiration of a period of seven days from the date of conc …

Prohibition on receiving payment

To guarantee the consumer's complete freedom to exercise the right of withdrawal granted to him by Article L. 221-18 (former Article L. 121-21) of the Consumer Code, Article L. 221- 10 (former Article 121-18-2) provides that “the professional may not receive any payment or consideration, in any form whatsoever, from the consumer before the expiration of a period of seven days from the date of conclusion of the off-premises contract” . The objective is however only partially achieved, since the time-limit for suspension does not coincide with the withdrawal period, which is fourteen days.

The same prohibition was already laid down in former Article L. 121-26 before the adoption of the Hamon Law, and was sanctioned by a one year's imprisonment and a fine of EUR 3,750 or one of these two penalties . The Hamon Law increases the criminal sanctions, now provided for in Article L. 242-5 (former Article L. 121-23) of the Consumer Code, bringing them to two years' imprisonment and a fine of EUR 150,000.

However, the texts did not expressly provide for the nullity of the contract. Accordingly, the trial courts considered that the delivery of a check  or the payment of a deposit  during the withdrawal period could not lead to the nullity of the contract. Initially, the Court of Cassation considered that the delivery of a check by the consumer during the withdrawal period was prohibited, even if the professional had not requested it, and that the amount paid had to be returned . The Court then considered that the delivery of a check in partial payment during the withdrawal period was contrary to former Article L. 121-26, whether or not it was cashed after the expiry of this time-limit . Then, in a landmark ruling handed down on the basis of Article 6 of the Civil Code, the first civil chamber of thee Court of Cassation stated that “failure to comply with this public policy provision is sanctioned not only by criminal sanctions, but also by the nullity of the contract” . The solution was regularly applied by the trial courts, which annulled the contract when, during the period of reflection, a check is delivered , even if it was not cashed until later , or when a deposit was received . It was also held that a debit authorization, even if it does not constitute a direct payment, amounts to a commitment, and cannot as such be delivered to a professional during the withdrawal period without invalidating the contract or incurring the criminal liability of the professional . The fact that this authorization is revocable at any time does not deprive it of the character of a commitment , when it is liable to alter the consumer's freedom of decision . However, the courts considered that the acceptance of a prior credit offer did not characterize, in itself, a commencement of performance and, accordingly, was not contrary to the prohibition of any consideration. It would have been different if the customer had simultaneously delivered a bank debit authorization to the seller . Following its amendment by Ordinance No 2021-1734, Article L.242-1 specifies that the provisions of Article L.221-10 - in the same way as those of Article L.221-9 - are provided for under penalty of nullity of the off-premises contract.

Four exceptions are provided for in Article L. 221-10, paragraphs 2 to 6 (former Articles 121-18-2, paragraphs 2 to 6), of the Consumer Code, which may be subject to a payment upon the conclusion of the contract:

1° the purchase at home of a subscription for a daily publication within the meaning of Article 39 bis of the General Tax Code;

2° contracts for sequential performance proposed by an approved body or subject to a decision of the administrative authority, the purpose of which is to provide services referred to in Article L. 7231-1 of the Labor Code;

3° contracts concluded at meetings organized by the seller at his home or at the home of a consumer having previously and expressly agreed that this transaction takes place at his home;

4° contracts for 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.

The same Articles specifies, however, that for the contracts referred to in 1° and 2°, the consumer has the right to terminate the contract at any time and without notice, expense or compensation and a right to reimbursement, within a period of fifteen days, of the amounts paid in proportion to the remaining term of the contract.

 Article 9 (3) of Directive 2011/83 of 25 October 2011, which requires Member States to refrain from any prohibition on the early performance of contractual obligations and gives them the right to maintain, where appropriate, the prohibition of advance payments.

 For an application see Cass. crim., 16 December 1986, LawLex200300002625JBJ; 5 October 1987, LawLex200300002626JBJ; 5 August 1997, LawLex200300002662JBJ; 4 February 1998, LawLex200300002785JBJ; 4 November 1999, LawLex200300003233JBJ; CA Rennes, 23 April 1998, LawLex200300002611JBJ, for a penalty of imprisonment.

 Cass. crim., 10 January 2012, LawLex201500001302JBJ, considering that the exceptions to the rule of prohibition of debit orders before the expiry of the withdrawal period, provided by paragraph  3 of former Article L. 121-26 of the Consumer Code, only concerned the written press sector, and not, as in this case, matrimonial agencies. See also CA Amiens, 13 November 2015, LawLex201500001487JBJ.

 Cass. crim., 6 March 1984, LawLex200300002623JBJ; CA Saint-Denis, La Réunion, 1 February 2013, LawLex201400000499JBJ; CA Paris, 23 June 2016, LawLex201600001236JBJ.

 TGI Quimper, 21 September 2000, LawLex200300002383JBJ.

 See Cass. crim., 22 March 2005, LawLex200500005759JBJ, overturning CA Orléans, 7 September 2004, LawLex200500005781JBJ; CA Bordeaux, 27 December 2011, LawLex201400001932JBJ.

 CA Riom, 21 April 1994, LawLex200300002744JBJ.

 CA Angers, 14 March 1995, LawLex200300002622JBJ; TI Épernay, 5 February 1997, LawLex200300002599JBJ.

 Cass. 1re civ., 22 November 1994, LawLex200300002817JBJ. See also Cass. crim., 23 September 2003, LawLex200300004227JBJ, overturning CA Poitiers, 20 June 2002, LawLex200300004379JBJ.

 Cass. 1re civ., 18 June 1996, LawLex200300002663JBJ; September 22, 2021, LawLex202100005405JBJ, specifying that only the receipt of payment or consideration by the professional before the expiry of a period of seven days from the conclusion of the off-premises contract may result in the cancellation of the contract, and not in the performance of the service during that period.

 Cass. 1re civ., 7 October 1998, LawLex200300002783JBJ.

 CA Rennes, 18 October 2007, LawLex201200001433JBJ; CA Versailles, 24 January 2012, LawLex201200001400JBJ; CA Dijon, 10 December 2015, LawLex201500001831JBJ.

 CA  Rennes, 13 June 2008, LawLex201200001459JBJ; CA Angers, 13 December 2011, LawLex201200001396JBJ; CA Rouen, 4 September 2013, LawLex201400001986JBJ; CA Amiens, 10 January 2014, LawLex201400001286JBJ.

 See for an illustration TI Niort, 8 December 1999, LawLex200300002955JBJ; CA Paris, 31 January 2013, LawLex201300001723JBJ; 20 February 2014, LawLex201400001968JBJ.

French Consumer Law

465. Prohibition on receiving payment

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465. Prohibition on receiving payment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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