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

Where the conditions for the implementation of the legal guarantee of conformity are met, compensation for the consumer's damage may take different forms. New Articles L. 217-8 to L. 217-17 (former Articles L. 217-9 to L. 217-11) of the Consumer Code provide for a hierarchical system of sanctions similar to that of Article 13 of Directive 2019-771 . Initially, the consumer can request the repair o …

Hierarchy of remedies

Where the conditions for the implementation of the legal guarantee of conformity are met, compensation for the consumer's damage may take different forms. New Articles L. 217-8 to L. 217-17 (former Articles L. 217-9 to L. 217-11) of the Consumer Code provide for a hierarchical system of sanctions similar to that of Article 13 of Directive 2019-771 . Initially, the consumer can request the repair or replacement of the defective good, without the seller being able to refuse, except in case of impossibility or disproportion. When the repair or replacement are impossible, the consumer can then, and under certain conditions, request the cancellation of the sale or a reduction in the price. 

The system thus established by the Consumer Code proves more favorable to the purchaser than Article 1644 of the Civil Code, which does not offer the buyer of a good with a latent defect the choice between an action for a reduction in the price due to the defect and an action for rescission, i.e. between a reduction in the price or the cancellation of the contract . Moreover, Article 1642-1 of the Civil Code excludes this possibility when the buyer undertakes to repair the good at issue. However, the replacement of the good is not envisaged.

The Union court considers that a method of compensation within the meaning of Directive No 1999/44 is considered to be disproportionate if it imposes on the seller costs which, in relation to the other method, are unreasonable in view of the value the good would have if it did not have a lack of conformity, the significance of the lack of conformity and the question of whether the other method of compensation can be implemented without major inconvenience to the consumer. The seller can only refuse the repair or replacement of the defective good “in the event of impossibility or relative disproportion” of one of these two methods of compensation in relation to the other. When the replacement of the good is the only possible compensation, the seller cannot oppose it on the grounds that the costs of removing the good from the place it was installed and the installation of the replacement good would be disproportionate in view of the value of a compliant good and the significance of the lack of conformity. In such a case, it is possible to limit the right of the consumer to reimbursement of the costs of removing the defective good and the installation of the replacement good to the payment, by the seller, of a proportionate amount . However, as the fact that the defective good can only be made compliant by bearing part of these costs may represent a major disadvantage for the consumer, the Court of Justice considers that he should be granted the possibility to require, instead of the replacement, an adequate adjustment of the price or the termination of the contract .

In principle, the work to render the good compliant must be carried out with no cost for the buyer (Article L. 217-11, former Article L. 211-11 of the Consumer Code). National legislation cannot allow the seller who sold a consumer good with a defect to require the consumer to pay compensation for the use of the non-conforming good until its replacement by a new good . In addition, the consumer is not required to pay for the normal use of the replaced goods during the period prior to their replacement . In any event, the application of any of these sanctions does not exclude the possibility for the consumer to claim damages (Art. L. 217-8, Consumer Code). According to the Court of Appeal in Lyon , in addition to compensation for the cost of bringing a wood-burning stove into conformity, the consumer is entitled to obtain damages, caused in this case by the restriction on the use, for six years, of this appliance, because of a risk of intoxication .
Finally, Article L. 217-8, as amended by Ordinance No 2021-1247, is an innovation in that it provides for a plea of for non-performance in favor of the consumer, who may "suspend the payment of all or part of the price or the remittance of the benefit provided for in the contract until the seller has fulfilled the obligations incumbent on him under the conditions of Articles 1219  and 1220  of the Civil Code.

 Directive No 2019/771, Article 13: “1. In the event of a lack of conformity, the consumer shall be entitled to have the goods brought into conformity or to receive a proportionate reduction in the price, or to terminate the contract, under the conditions set out in this Article. 2. In order to have the goods brought into conformity, the consumer may choose between repair and replacement, unless the remedy chosen would be impossible or, compared to the other remedy, would impose costs on the seller that would be disproportionate, taking into account all circumstances, including: (a) the value the goods would have if there were no lack of conformity; (b) the significance of the lack of conformity; and (c) whether the alternative remedy could be provided without significant inconvenience to the consumer. 3. The seller may refuse to bring the goods into conformity if repair and replacement are impossible or would impose costs on the seller that would be disproportionate, taking into account all circumstances including those mentioned in points (a) and (b) of paragraph 2. 4. The consumer shall be entitled to either a proportionate reduction of the price in accordance with Article 15 or the termination of the sales contract in accordance with Article 16 in any of the following cases: (a) the seller has not completed repair or replacement or, where applicable, has not completed repair or replacement in accordance with Article 14(2) and (3), or the seller has refused to bring the goods into conformity in accordance with paragraph 3 of this Article; (b) a lack of conformity appears despite the seller having attempted to bring the goods into conformity; (c) the lack of conformity is of such a serious nature as to justify an immediate price reduction or termination of the sales contract; or (d) the seller has declared, or it is clear from the circumstances, that the seller will not bring the goods into conformity within a reasonable time, or without significant inconvenience for the consumer. 5. The consumer shall not be entitled to terminate the contract if the lack of conformity is only minor. The burden of proof with regard to whether the lack of conformity is minor shall be on the seller. 6. The consumer shall have the right to withhold payment of any outstanding part of the price or a part thereof until the seller has fulfilled the seller's obligations under this Directive. Member States may determine the conditions and modalities for the consumer to exercise the right to withhold the payment. 7. Member States may regulate whether and to what extent a contribution of the consumer to the lack of conformity affects the consumer's right to a remedy”.

Civil Code, Art. 1644: “In the case of Articles 1641 and 1643, the buyer has the choice of returning the thing and having the price refunded, or keeping the thing and having part of the price  refunded”. 

 Cases C-65/09 and C-87/09 Wittmer, Putz,  Judgment of 16  June 2011, LawLex201200000103JBJ.

 Case C-404/06 Quelle AG, Judgment of 17 April 2008, LawLex200900000708JBJ.

Provision added to section L. 217-11 as a result of the passage of Ordinance No 2021-1247 relating to the guarantee of conformity for digital goods and content and services.

CA Lyon,  21 November 2019, LawLex201900001429JBJ.

Civil Code, Art. 1219: “A party may refuse to perform his obligation, even though it is due, if the other party does not perform his and if such non-performance is sufficiently serious.”

Civil Code, Art. 2220: “A party may suspend performance of his obligation where it is clear that his co-contractor will not perform when due and where the consequences of such non-performance are sufficiently serious for him. Notice of such suspension must be given as soon as possible.”

French Consumer Law

524. Hierarchy of remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

524. Hierarchy of remedies

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise