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

The ratione personae scope of Article L. 441-1 (former Article L. 213-1) of the Consumer Code has given rise to some questions because, while seeming to require the existence of a contract, the text specifies that it is not necessary for the offender to be a party to the contract. Case law places responsibility for the offense of deception on both parties and third parties to the contractual relat …

Party to the contract

The offense of deception covers a broad scope of application.

Article L. 441-1 (former Article L. 213-1) of the Consumer Code condemns anyone who has deceived or attempted to deceive the contractor on the goods, “whether or not he is a party to the contract”. This double reference led the courts to make the application of the text conditional on the existence of a contract or any formal act against consideration . The trial consecutive to the passage over France of the radioactive cloud resulting from the Chernobyl disaster gave the Court of Cassation the opportunity to clarify the concept of contract. The French Association of Thyroid Diseases complained in this case to the director of the central service for the protection against ionizing radiation for giving false, inaccurate or truncated information on the substantial qualities, controls on foodstuffs affected by radioactivity and the precautions to be taken after the explosion of the plant. To reject the claim, the Court held that “the offense of deceit implies the existence of a contract or act against consideration, which is or is about to be concluded and which relates either to a specific good or service, and this is not the case for information of a general nature, issued outside any contractual relationship, and not relating to any particular product” .

Although Article L. 441-1 (former Article L. 213-1) of the Consumer Code implies the existence of a contract, it does not require that the contract has been performed or executed. The mere attempt to deceive the other contracting party is reprehensible: it is sufficient that it is materialized by a commencement of performance .

  Cass. crim., 8 March 1990, LawLex200300002430JBJ, regarding a free gift of a ring supposed to contain a real diamond to all participants in an advertising lottery who had not won one of the three other prizes in the game. See also TGI Paris, January 14, 2009, about the growth hormone affair.

  Cass. crim., 20 November 2012, LawLex201300000354JBJ.

  Cass. crim., 3 May 1974, LawLex200500009048JBJ: the sending of wine samples mentioning appellations of origin that the product cannot claim constitutes a commencement of execution characterizing the attempt to mislead as to the origin and substantive quality of the goods, the fact that no order had been placed being immaterial.

Existence of a contract

The courts have interpreted Article L. 441-1 (former Article L. 213-1) of the Consumer Code as being applicable to all contracts concluded for remuneration , i.e. any act by which each party procures an advantage to the other for a consideration that is in principle equivalent. Thus, the offense of deception applies in particular to contracts concerning a sale, lease, interest-bearing loan or mandate.

A contrario, all contracts concluded free of charge, by which one party agrees to provide a benefit to the other party without receiving any consideration, provided that the free nature of the contract is not just apparent  or that the contract is not concluded within the framework of a commercial operation , are excluded from the scope of the text.

 Cass. crim., 8 March 1990, LawLex200300002430JBJ.

  See CA Paris, 21 January 2008, LawLex201200001931JBJ: a defendant cannot usefully plead the non-applicability of the offense of deception to a free act insofar as the free channel of the disputed lottery was not effective.

  Cass. crim., 14 February 1996, LawLex200400001570JBJ: the offense of deception is applicable to the consignment contract, even in the absence of an immediate profit-making objective of the depositary, when it falls within a commercial perspective of selling a new vehicle to the depositor.

Nature of the contract

Initially, the offense of deception only applied to “goods”. Ordinance No 2004-670 of 9 July 2004, incorporating Article 16 of Law No 78-23 of 10 January 1978, subsequently extended the scope of Article L. 213-1 (now Article L. 441-1) of the Consumer Code to the provision of services.

The scope of the offense of deception is particularly broad since, in addition to “goods”, Article L. 441-1 (former Article L. 213-1) of the Consumer Code refers to the “product” and the “thing”, in other words moveable items, “which can be counted, weighed or measured” .

This precludes contracts for the sale of intangible items, such as shares of a company , operating rights  and securities, even if this sale implies the sale of inventories which have the nature of goods and which make up the essential value of the transaction , or which, like rental, relate to real property . Indeed, a rental cannot be qualified as a good or as a provision of services . However, when the lease of a property is only one element of the services provided, the offense of deception is applicable in the same way as for any contract relating to the provision of services .

In principle, deceiving or attempting to deceive a contractual partner is punishable only if the goods that are the subject matter of the contract have been offered for sale . In the absence of an offer, it is difficult to establish the intentional element of the offense and, as recalled by the courts in a case where non-compliant products had been placed in the store room of a store, the doubt benefits the defendant .

2)  Contract for the provision of services

Article L. 441-1 (former Article L. 216-1) of the Consumer Code lays down the provisions relating to the offense of deception applicable to the provision of services . This includes the provision of order management software that does not meet contractual requirements , the service of a travel agency which organizes the transport and rental of a villa whose accommodation conditions do not correspond to the advertisement , the advertiser of sales of goodwill which presents himself as a real estate agent and suggests the existence of a portfolio of potential buyers in the sector of activity concerned , the higher education institution which does not provide the minimum amount of teaching time  or the medical analysis laboratory which provides distorted results due to the use of inadequate reagents . Also characteristic of the offense of deception is the fact that, for a repairer who falsely declares that he is approved by EDF, to replace a non-defective circuit breaker , to present invoices not corresponding to the work performed , or, for a jeweler, to imply that he perform the transformation of a piece of jewelry himself  . The offense of deception often results from the omission or negligence of the service provider, in particular when he has not verified the reality of the proposed service  or has not taken all the necessary precautions for the proper performance of the service . 

  Cass. crim., 5 December 1977, LawLex201300000733JBJ; See, on the sale of narcotics, CA Grenoble, 26 March 1997, LawLex200400000847JBJ, holding that the offence of deception consists in voluntarily selling to a contracting partner a product which does not have the substantial qualities he expects, regardless of whether the contract concerns a lawful or unlawful object.

  CA Paris, 4 October 1995, LawLex200400001454JBJ.

  Cass. crim., 2 November 2005, LawLex201600000236JBJ.

  Cass. crim., 17 March 1993, LawLex200400000281JBJ.

  Cass. crim., 8 February 2011, LawLex201200001713JBJ.

  Cass. crim., 4 March 1998, LawLex200400001069JBJ.

  Cass. crim., 3 April 2001, LawLex200300003372JBJ.

  CA Paris, 6 March 1990, LawLex200500006371JBJ.

  Cass. crim., 26 February 2013, LawLex201300000605JBJ, even if the deception does not affect the technical aspect of the repair and only concerns the price and traceability of the parts supplied.

  Cass. crim., 5 April 2011, LawLex201200001706JBJ.

 CA Paris, 11 December 1991, LawLex200400000779JBJ.

  Cass. crim., 18 September 1995, LawLex200400001132JBJ. See, for an Internet service provider that misled many subscribers on the substantial qualities of its services, by failing to provide the necessary bandwidth for the unlimited Internet access offer proposed, not only for the telephone service but also for the other services, by not offering a hotline which is a real technical aid and by deliberately prioritizing bandwidth flows using routers, in order to limit access to some of its services to users who are "big consumers of bandwidth", Cass. crim., 27 January 2015, LawLex201500000162JBJ; Cass crim., 9 September 2020, LawLex202000002507JBJ, specifying that the regulations applicable to the inspection of marquees, tents and structures by authorized inspection offices do not prevent the offense of deception from applying to the services provided by these offices under contracts with the owners and operators of these structures.

  CA Paris, 1 December 1994, LawLex200400001573JBJ.

 CA Aix-en-Provence, 27 September 2011, LawLex201200001834JBJ.

 According to the Court of Cassation, "the rental of a property, even if it is furnished, does not, as such, fall within the scope of Law of August 1, 1905": Cass. crim., 24 January 1991, LawLex200400000264JBJ.

 See also, concerning the rental of a property whose surface area was less than that announced by the technical sheet and the inventory of the building: Cass. crim., 13 January 2009, LawLex201200001715JBJ.

The scope of Article L. 213-1 of the Consumer Code does not cover bottles of spirits sold by a professional exporting to the Asian continent and which have never been marketed on the French market, CA Paris, 10 October 2001, LawLex200600000678JBJ.

 CA  Douai, 5 November 2002, LawLex200400000333JBJ.

 Cass. crim., 18 September 1995, LawLex200400001132JBJ, who considered that deception on the substantial qualities of a contractual service is characterized, when the error committed by the service provider relates to an element of the service contract which, by nature, is substantial. See also TGI Nanterre, 15 December  2006, LawLex200700000587JBJ, recalling that the offense of deception applies not only to moveable items that can be counted, weighed and measured, but also to the provision of services and in particular the physical provision of musical files, pursuant to the combined application of Articles L. 216-1 and L. 213-1 of the Consumer Code.

Subject matter of the contract

The ratione personae scope of Article L. 441-1 (former Article L. 213-1) of the Consumer Code has given rise to some questions because, while seeming to require the existence of a contract, the text specifies that it is not necessary for the offender to be a party to the contract. Case law places responsibility for the offense of deception on both parties and third parties to the contractual relationship. They must, however, be directly responsible or at least complicit in the offense. This is not the case of the franchisor in the event of deception committed by some of his franchisees using products he has delivered to them . However, a master franchisee becomes an accomplice in the offense of deception committed by his franchisee to whom he has sent, without prior verification of their compliance with the regulations, labels bearing false indications .

The text also does not indicate whether the offense of decption can be attributed to both individuals and professionals . However, since the Consumer Code prohibits anyone from deceiving or attempting to deceive, there is nothing to prevent an individual from being convicted of deception when he sells a thing to another individual or a professional.

The application of Article L. 441-1 (former Article L. 213-1) of the Consumer Code to relations between professionals had raised questions which no longer need to be considered: the offense of deception is applicable even when it is committed in the context of relations between professionals . This issue was the subject of a priority constitutional question (QPC) transmitted to the Court of Cassation to verify the conformity of Article L. 213-1 (now Article L. 441-1) of the Consumer Code with the principles of the legality of offenses and penalties and the non-retroactivity of criminal law . The Criminal Chamber refused to transmit the QPC to the Constitutional Council on the grounds that it was not serious. The Court stressed that Article L. 213-1 (now Article L. 441-1) condemns “anyone” who has deceived or attempted to deceive a contractual partner, that the law does not provide for an exception where the offense is committed in relations between professionals and that these provisions are in conformity with the principles of clarity, accessibility and comprehensibility of the criminal law whose scope they allow to determine without infringing the constitutional principle of the legality of offenses and penalties .

According to case law, Article L. 441-1 (former Article L. 213-1) applies to the manufacturer , the importer , the distributor , or the intermediary . The Court of Cassation recently recalled: the offense of deception “in view of ensuring the fairness of commercial transactions, applies at all stages of the marketing of the product” .

  CA Poitiers, 18 November 1993, LawLex200200005352JBJ, for franchisees who had led customers to believe that decorative items (fur animals) were in the toy category.

  Cass. crim., 16 December 1998, LawLex200200004396JBJ.

  Cass. crim., 13 January 2015, LawLex201500000062JBJ, op. cit.

  Cass. crim., 20 October 1987, LawLex200400000277JBJ.

  Cass. crim., 4 November 2008, LawLex201200001739JBJ;  CA Paris, 26 February 1998, LawLex200400001097JBJ; Cass. crim., 16 December 1998, LawLex200200004396JBJ: a master franchisee becomes an accomplice in the offense of deception committed by his franchisee by sending to the latter, without prior verification of their compliance with the regulations, labels bearing false indications.

  As provided for in Articles 7 and 8 of the Declaration of the Rights of Man and of the Citizen of 1789.

  Cass. crim., 6 September 2011, LawLex201200001704JBJ.

  See, for example,  CA Lyon, 26 March 2003, LawLex200400001082JBJ, approved by Cass. crim., 23 March 2004, LawLex200400000808JBJ, holding that a producer of cured meats commits the offense of deception by using the word "truffle", when its product only contain only truffle breakings or peelings and are partly composed of black mushrooms, contrary to the regulatory and ethical standards applicable to the profession.

  For a cumulative application of Articles L. 212-1 and L. 213-1 of the Consumer Code, see Cass. crim.,  2006, LawLex200600001661JBJ.

  For a franchisor found guilty of deception, when it supplied its distributors, without carrying out any prior checks, with equipment that does not function properly, See  CA Angers, 4 February 1993, LawLex200400001296JBJ.

  Cass. crim., 13 January 2015, LawLex201500000062JBJ, charging with the offense of deception the company responsible for managing the advertising and supply and purchase of raw materials composing the products on the grounds that it "was responsible for the products and marketing and therefore was indeed part of the product development and marketing chain".

The offense of deception often consists in issuing misleading or unfair information to the contracting party to encourage that party to contract. It follows that the conviction for deception implies that the delivery of the information is prior to the date of conclusion of the contract , whether the contract is actual or potential. In other words, if the contractor knew of the erroneous nature of the information provided to him, his action on the basis of Article L. 441-1 (former Article L. 213-1) of the Consumer Code will be rejected . Deception is not characterized if the truth was restored at the time of the sale . However, when the facts fall under a dual classification of deception and misleading advertising, the head of misleading advertising remains .

In a case where the professional who carried out the compulsory technical inspection of a used vehicle before it was sold was prosecuted for deception, the question arose as to whether the sale was necessarily final on the signature of the purchase order, or if it could only be considered as such later, at the time of delivery of the technical inspection report . According to the case law, in such a case, the sale is final only when the buyer receives the technical inspection report. Therefore, the delivery of a document containing false information after the order has been placed may constitute deception .

 CA Paris, 12 December 1990, LawLex200400001287JBJ.

 Cass. crim., 3 September 2002, LawLex200300003317JBJ; CA Paris, 2 May 2000, LawLex200400000577JBJ.

 CA Grenoble, 14 February 1997, LawLex200400000859JBJ

 CA Grenoble, 14 February 1997, LawLex200400000859JBJ; CA Toulouse, 16 December 1999, LawLex200400000689JBJ, the registration document delivered to the buyer enabled him to note that the model year of the vehicle purchased was earlier than that claimed by the seller.

 Pursuant to Article 5 bis of the Decree of 4 October 1978, the seller (professional or non-professional) of a used vehicle must necessarily supply the purchaser with a report of the technical inspection established less than six months ago.

 CA Orléans, 25 February 2003, LawLex200400001289JBJ. Contra: CA Rouen, 5 May 1997, LawLex200400000929JBJ.

French Consumer Law

541. Party to the contract

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541. Party to the contract

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Les décisions de justice citées dans ce paragraphe :

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