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

Article L. 121-8 (former Article L. 122-8) of the Consumer Code prohibits “the fact of abusing the weakness or ignorance of a person to have him subscribe, by means of home visits, to cash or credit operations in any form whatsoever, when the circumstances show that this person was not in a position to assess the scope of the commitments he made or detect the tricks of artifices used to convince h …

Accumulation with the offense of abuse of weakness

Articles L. 242-5 and L. 242-7 of the Consumer Code sanction any breach of the obligation to hand over a copy of the contract concluded off-premises containing all the required information, and accompanied by a withdrawal form and of the prohibition, with certain exceptions, of payments or compensation received before the expiry of seven days, by two years' imprisonment and a fine of EUR 150,000. The Hamon Law therefore considerably increases the criminal risk since previously, the prison sentence incurred was only one year and the fine was EUR 3,750 . Natural persons found guilty also incur as an additional penalty a ban on engaging in certain activities . Legal persons incur five times the amount of these fines as well as the additional penalties provided for in paragraphs 2 to 9 of Article L. 131-39 of the Criminal Code. Finally, in the event of criminal proceedings against the seller, service provider or direct seller, the consumer who has become a party to the proceedings may apply to the criminal court for an amount equal to the amount of the payments made, as well as for damages . In accordance with the general rules of criminal procedure, the public action is time-barred after three years . This deadline is interrupted by minutes finding the offense of unlawful canvassing established by the agents of the DGCCRF .

The text covers both the company - the seller or the service provider - and its agents - the direct sellers. The company incurs liability in respect of the actions of its employee direct sellers  or, even in the absence of an employment contract with them , when there is a relationship of subordination or dependence . The natural person direct seller can also be prosecuted, alternatively or cumulatively , without being able to rely on his status as an employee .

Within the legal entity, executives may exonerate themselves if they establish the existence of a delegation of authority for the benefit of a subordinate. Exemption from liability was thus granted in the presence of a delegation of powers to a regional director with necessary skills, authority and resources, responsible for the day-to-day management of an entire region, having agency directors and an administrative director under his authority, and the direct power to train, recruit and sanction his employees . On the other hand, it is refused when the offenses result from a deliberate policy , or when the executive has been directly involved in the development of the concepts and methods of the commercial policy practice . In the absence of delegation of authority, the executive is responsible for the actions of unlawful direct selling committed by his salespeople , especially when they have acted on his instructions .

An analysis of case law shows that the sanctions imposed for unlawful direct selling mainly consist of fines or suspended prison sentences . Criminal courts tend to be more severe when the offense consists of obtaining payment of a sum before the expiry of the seven-day period granted to the consumer . Thus, the criminal liability of the direct seller is incurred when he receives a deposit check before the expiry of this period, even if he has not asked for its delivery . Also condemned is the payment of an advance which is accompanied by other violations of the formal and substantive rules concerning direct selling: early performance of the service under the old law , lack of information on the right of withdrawal  or its conditions of implementation  , lack of information on the prices and conditions of sale . Irrespective of the requirement for an advance payment, the absence of a withdrawal form  or its non-compliance with the legal requirements also justifies the criminal liability of the direct seller being incurred .

On the other hand, the mere reproduction on the contract of the provisions of the Consumer Code relating to canvassing cannot in itself lead to the imposition of criminal sanctions, if the contract in question has not been concluded as a result of canvassing . Similarly, those responsible for a commercial operation consisting in sending vouchers to former customers, allowing them to obtain a gift with not obligation or incentive to buy, cannot be prosecuted for unlawful canvassing, when this operation is equivalent to the one usually practiced by traders who offer loyalty discounts .

 Consumer Code, former Article L. 121-28:

 Consumer Code, Article L. 242-5, paragraph 2: "Individuals found guilty also incur, as additional penalties, as provided for in Article 131-27 of the Criminal Code, the prohibition either to carry out a public function or professional or social activity in the exercise or in the course of the exercise of which the offense was committed, or from exercising a commercial or industrial profession, from directing, administering, managing or controlling in any capacity whatsoever, directly or indirectly, for their own account or on behalf of others, a commercial or industrial undertaking or a commercial company. The prohibitions of exercise may not exceed a duration of five years. They can be imposed cumulatively". For an application, see Cass. crim., 27 June 2018, LawLex201800000993JBJ.

 CA Rennes, 18 May 2000, LawLex200300002791JBJ.

 CA Versailles, 29 October 1998, LawLex200300002610JBJ.

 Cass. crim., 19 September 2002, LawLex200300001028JBJ.

 CA Paris, 20 February 1995, LawLex200300002586JBJ.

 CA Bordeaux, 16 March 1999, LawLex200300002959JBJ; CA Rennes, 23 April 1998, LawLex200300002611JBJ.

 See for example, CA Douai, 15 October 1996, LawLex200300004302JBJ; CA Paris, 7 October 1998, LawLex200300002618JBJ, cited above; Cass. crim., 1 April 2014, LawLex201400000643JBJ. See however, pronouncing a prison sentence, CA Rennes, 23 April 1998, LawLex200300002611JBJ.

 See CA Paris, 24 May 2002, LawLex200300003044JBJ; TGI Poitiers, 12 March 1992, LawLex200300002579JBJ; CA Angers, 14 March 1995, LawLex200300002622JBJ.

 Cass. crim., 16 December 1986, LawLex200300002625JBJ;  Cass. crim., 16 December 1986, LawLex200300002625JBJ.

 Cass. crim., 5 May 2009, LawLex201200001412JBJ. Article L. 221-25 (former Article L. 121-21-5) Consumer Code resulting from the Hamon Law of 17 March 2014 now authorizes the performance of a service before the expiry of the withdrawal period at the express request of the consumer.

 Cass. crim., 4 February 1998, LawLex200300002785JBJ, upholding CA Douai, 15 October 1996, LawLex200300004302JBJ; CA Toulouse, 9 October 1997, LawLex200300002614JBJ; Cass. crim., 24 January 2006, LawLex200700000470JBJ.

 For an example of its application: Cass. crim., 25 October 2016, LawLex201600001843JBJ.

 CA Paris, 7 October 1998, LawLex200300002618JBJ.

 CA Agen, 12 February 2009, LawLex201200001454JBJ.

 Cass. crim., 9 April 2013, LawLex201400001428JBJ.

 Cass. crim., 1 April 2014, LawLex201400000643JBJ.

 Cass. crim., 27 June 2006, LawLex200700000120JBJ.

 CA Lyon, 17 June 2009, LawLex201200001418JBJ.

 CA Rennes, 7 May 1998, LawLex200300002567JBJ.

 CA Rennes, 23 April 1998, LawLex200300002611JBJ; CA Bordeaux, 16 March 1999, LawLex200300002959JBJ.

 Cass. crim., 11 January 1990, LawLex200300002839JBJ; 18 January 2000, LawLex200300003845JBJ, upholding CA Pau, 23 March 1999, LawLex200300002609JBJ; CA Paris, September 13, 1999, LawLex200300002620JBJ.

 Cass. crim., 21 September 1994, LawLex200300002814JBJ upholding CA Douai, 11 March 1993, LawLex200300004021JBJ. See however Cass. crim., 26 February 1998, LawLex200300002627JBJ overturning CA Douai, 26 November 1996, LawLex200300003964JBJ, on the grounds that the judge cannot, without contradicting himself, find that travelling direct sellers have the status of independent traders and their dependency vis-à-vis the company.

 TGI Bordeaux, 12 February 1992, LawLex200300002965JBJ.

 CA Toulouse, 9 October 1997, LawLex200300002614JBJ.

Sanctions specific to off-premises contracts

Article L. 121-8 (former Article L. 122-8) of the Consumer Code prohibits “the fact of abusing the weakness or ignorance of a person to have him subscribe, by means of home visits, to cash or credit operations in any form whatsoever, when the circumstances show that this person was not in a position to assess the scope of the commitments he made or detect the tricks of artifices used to convince him to subscribe or show that he was subjected to coercion”. Article L. 132-14 sanctions this prohibition by three years' imprisonment and a fine of EUR 375,000. The Hamon Law thus reduced the prison sentences from 5 to 3 years, but increased the fines from EUR 9,000 to EUR 375,000 for natural persons and to five times the amount for legal persons. The amount of the fine can now also be increased, in proportion to the benefits derived from the breach, to 10% of the annual average turnover, calculated on the last three turnovers known on the date of the events.

Article L. 121-9 (former Article L. 122-9) of the Consumer Code supplements the consumer protection rules by extending them to the commitments obtained: following canvassing by telephone or fax; following a personalized solicitation, without this solicitation necessarily being nominative, to go to a place of sale, made and home and accompanied by the offer of special benefits; during meetings or excursions organized by the offender or for his benefit; when the transaction has been made in places not intended for the marketing of the good or service offered or within the framework of trade fairs or exhibitions; when the transaction has been concluded in an urgent situation having made it impossible for the victim to consult one or more qualified professionals, third parties to the contract.

The abuse of weakness is therefore liable to be constituted in all situations in which an off-premises contract within the meaning of Article L. 221-1 (former Article L. 121-16) of the Consumer Code is likely to be concluded. The two offenses may be cumulative if they do not present any incompatibility between them and defend separate interests relating to the protection of vulnerable persons and consumers . It nevertheless presupposes that an additional element is characterized: the vulnerability of the contractual partner . When the consumer canvassed is neither insane, nor affected by mental disorders , it is not possible to characterize the offense of abuse of weakness , irrespective of the possible existence of unlawful canvassing. Similarly, the advanced age of the person canvassed does not suffice to demonstrate an abuse of weakness . It is also necessary that, because of this age, the person is not in a position to assess the scope of his commitments , or that this age is accompanied by a physical disability, deafness or amnesia . The state of weakness can also be characterized by being in a significant state of poverty and the fact that the persons canvassed do not master the French language .

In such cases, the abuse of weakness is constituted when the direct sellers receive payments before the expiry of the reflection period , have the consumer sign a contract unrelated to the modesty of his needs , or take out unnecessary and superfluous loans . The abuse of weakness is also characterized when the repairer takes advantage of his position of strength to demand immediate payment from a vulnerable person  or when the abusive sale takes place after telephone canvassing inviting consumers to go to a place not intended for trade, for a one-off sale .

An analysis of decisions finding an abuse of weakness shows that prison sentences and high fines are more often handed down in these cases than in the case of simple unlawful canvassing offenses.

  Cass. crim., 8 March 2016, LawLex201600000643JBJ.

  See Cass. crim., 7 October 2003, LawLex200300004230JBJ.

 CA Lyon, 7 May 1999, LawLex200300002757JBJ.

 TGI Paris, 21 February 2001, LawLex200300003043JBJ: for an elderly person, with no technical expertise, impressed by the attitude of the repair man who criticized his entire installation, being unable to call on another professional as it was Christmas eve.

 CA Pau, 4 May 1994, LawLex200400001491JBJ, finding that a person with hemiplegia and Parkinson's disease is not vulnerable in the absence of mental disorders, when his wife was also present at the time of conclusion of the contract.

 CA Aix-en-Provence, 18 January 2000, LawLex200300002890JBJ, holding that the fact that people are elderly does not characterize a situation of vulnerability when they have all their mental faculties.

  CA Grenoble, 9 January 1998, LawLex200300002594JBJ.

 CA Toulouse, 30 April 1998, LawLex200300002706JBJ.

 See CA Angers, 11 March 1999, LawLex200300002941JBJ.

  See Cass. crim., 5 August 1997, LawLex200300002662JBJ, upholding CA Paris, 13 May 1996, LawLex200300002571JBJ.

 CA Dijon, 15 February 2000, LawLex200300002799JBJ.

 TGI  Villefranche-sur-Saône, 5 January 1999, LawLex200300002698JBJ: for the subscription by a vulnerable person for the installation of an alarm system for his very modest home.

French Consumer Law

468. Accumulation with the offense of abuse of weakness

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468. Accumulation with the offense of abuse of weakness

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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