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

Non-performance of a contractual obligation may constitute a deception on the condition that the intention of the perpetrator to deceive the contractor is characterized : the poor performance of the contract cannot, on its own , constitute grounds for the conviction. With regard to a provision of services, the intentional element of the offense is established when the service provider has not, in  …

Non-performance of a contractual obligation

The conviction of a defendant  for deception or complicity in deception  necessarily implies characterizing the fraudulent intention, which constitutes the “moral element” of the offense. Convictions which fail to identify this moral element are likely to be overturned by the Court of Cassation . Conversely, a court cannot acquit a defendant after finding that he has intentionally deceived a contractor . The fraudulent intent manifests itself above all by the bad faith of the accused.

The bad faith of the defendant is therefore demonstrated where the latter persists in the behavior despite warnings from the Administration , or by the desire to continue using a process he knew was unfit for its use , the lack of verification of the conformity of the products delivered with the essential characteristics of the order , the omission of information decisive for the consent of the victim , placing an advertisement in a newspaper for car advertisements certifying the fact that the vehicle for sale has never been in an accident, although this is not the case . In general, the acts of the seller which betray his will to mislead the contractor, by way of action or omission, will make it possible to establish the intentional element of the offense of deception   In particular, a company in charge of marketing the products sold is guilty of the offense of deception when it fails to mention the presence of allergenic additives in its advertising mails, even if the consumer can discover this on receipt of the order and the intentional element is deduced from the deliberate attitude of the director of this company who considers subsequent information is sufficient 

However, proof of the moral element of the deception is not provided when the contractor has made a commitment in full knowledge of the facts  or when the defendant had acted in good faith , in particular if he legitimately could have believed that the information issued to the contractor was accurate  or provided him with the documents correcting the material inaccuracy of the text of his advertisement, at the time of the transaction . Furthermore, the defendant who has carried out numerous checks before marketing its products, and who recalled them as soon as it was aware of their defects, must be acquitted . The same applies when the actions of the defendant have demonstrated his desire to inform the consumer  or when it appears from the circumstances of the case that the deception was of no interest to the defendant . Finally, a defendant cannot be relieved of his criminal liability by justifying his actions by the existence of a local practice when it has been replaced by a new agreement adopted by the professional which he was necessarily aware of .

 On the status of the accused, see Cass. crim., 28 March 1994, LawLex200400001339JBJ, intermediate and Cass. crim., 9 July 1987, LawLex200400000290JBJ, service provider.

  The moral element may arise from the fact that the accomplice accompanied the perpetrator of the offense in full knowledge of the facts, Cass. crim., 7 September 2011, LawLex201200000973JBJ.

 Cass. crim., 13 January 2015, LawLex201500000062JBJ.

  CA Grenoble, 3 August 1994, LawLex200400001273JBJ; CA Bordeaux, 6 April 1995, LawLex200500006369JBJ.

  CA Bordeaux, 24 September 1991, LawLex200400001274JBJ; CA Poitiers, 28 October 1993, LawLex200400001297JBJ.

  CA Nancy, 14 March 1996, LawLex200400000850JBJ; CA Agen, 14 November 1996, LawLex200400001292JBJ, professional.

  CA Pau, 20 July 1994, LawLex200400001465JBJ.

  CA Angers, 2 March 2000, LawLex200400000576JBJ.

  CA Rouen, 20 July 2011, LawLex201200001394JBJ.

 CA Rouen, 20 July 2011, cited above; CA Aix-en-Provence, 18 October 2011, LawLex201200001922JBJ.

  Cass. crim., 16 January 2007, LawLex201200001750JBJ.

  Cass. crim., 11 February 1987, LawLex200400000287JBJ.

  Cass. crim., 15 December 2009, LawLex201200001712JBJ: the court can only find that the accused marketed 24 tons of mutton under the name lamb and that this non-accidental practice enabled him to make significant profits and to acquit him of the charge of deception on the grounds that it is not established that he breached his obligation of control or encouraged his subordinates to commit fraud.

  CA Paris, 21 May 1990, LawLex200400001237JBJ; CA Pau, 26 November 1991, LawLex200400001492JBJ; CA Orléans, 26 May 1997, LawLex200400001054JBJ; Cass. crim., 24 February 2004, LawLex200400000945JBJ.

  Cass. crim., 26 October 1987, LawLex200400000289JBJ.

  Cass. crim., 1 April 2008, LawLex201200001717JBJ.

 Cass. crim., 20 October 1987, LawLex200400000277JBJ; CA Paris, 19 December 1990, LawLex200400001271JBJ; CA Grenoble, 31 January 1991, LawLex200400001277JBJ; Cass. crim., 27 February 2007, LawLex201200001748JBJ, a professional vehicle seller who could not be unaware of the fact that the engine was not original.

  CA Agen, 28 March 1993, LawLex200400000987JBJ.

 CA  Bordeaux, 24 September 2002, LawLex200400000307JBJ.

Bad faith

An intentional offense, the offense of deception implies the intention to commit it . However, in the interest of consumer protection, case law adopts a very broad interpretation of “bad faith”, meaning that a fault of carelessness or negligence  is sufficient, in practice, to characterize deception.

According to the Court of Cassation, the texts establish no presumption of deception against a person who has failed to carry out all the necessary verifications before delivering the goods for sale: the bad faith of the accused lies in the circumstances of the case . To qualify the intent of deception, the judges rely on a body of evidence. Thus, the significance of the quantities sold, the number of years during which the acts were committed, witness statements and the intellectual level of the defendants   may reveal the fraudulent intent. The courts are extremely severe with regard to those responsible for the first placing on the market of the product   Having regard to the obligation to perform self-checks imposed on them under Article L. 411-1 (former Article L. 212-1), case law requires them to carry out a second check on the conformity of the product with the standards in force on its arrival in the national territory . This interpretation is based on Article 121-3, paragraph 3, of the Criminal Code, which provides that “an offense also exists, when the law so provides, in case of reckless misconduct, negligence or breach of an obligation of caution or safety provided by the law or regulations, if it is established that the perpetrator has not performed the normal procedures taking into account, where appropriate, the nature of his mission or tasks, his skills and the authority and means he disposes of”. It gives a particularly wide scope to Article L. 411-1 (former Article L. 212-1) which the Court of Cassation considers applicable to all stages of the marketing of the product . 

The existence of negligence verging on bad faith is characterized in the absence of any control of the goods  or when the control system put in place is insufficient . Such is the case of the head of the fresh products department of a large distribution group who refrains from regularly verifying the composition of the products it offers for sale and sets up “a system which has neither the effectiveness nor the reliability to achieve the objective of full conformity required to avoid adverse consequences on the health of consumers and particularly children, who enjoy this type of product” . A franchisor may be found guilty of the offense of deception  when it provides its distributors, without carrying out any prior checks, with equipment that does not function properly, or convicted for complicity when it does not make available to its franchisee labels that comply with the regulations . In the case of provision of services, the fault of negligence may result from the failure to verify the reality of the proposed service . Finally, wrongful carelessness can be inferred from the fact that the accused did not detect a defect in the goods  or allowed the actions at the origin of the deception to be carried out . 

 Criminal Code, Article 121-3: "There is no crime or offense without the intention of committing it".

  See CA Paris, 20 December 1990, LawLex200400001268JBJ; 2 December 1996, LawLex200400001047JBJ; CA Angers, 14 February 1991, LawLex200400001300JBJ; Contra: CA Metz, 31 October 1990, LawLex200400001065JBJ: although negligence can constitute a professional or contractual fault, in no case can it constitute the fraudulent intent of the offense of deception.

  See  CA Angers, 4 February 1993, LawLex200400001296JBJ.

  Cass. crim., 16 December 1998, LawLex200200004396JBJ.

   CA Paris, 11 December 1991, LawLex200400000779JBJ, for a travel agent who merely played a role as a passive executor although he was required "to actively ensure the satisfaction of the essential wishes and needs of his customers by verifying, by gathering all useful information without necessarily going on site, the reality of the services offered to them […]".

   CA Caen, 8 October 1997, LawLex200400001248JBJ; Orléans, 25 February 2003, LawLex200400001289JBJ.

  CA Agen, 10 December 1998, LawLex200400001195JBJ.

  Cass. crim.,  3 April 1974, LawLex200600001584JBJ: bad faith on the part of the defendant, who, receiving goods packaged by his contractors, disregarded his obligation as director of the agricultural technical office to verify that the goods delivered did not have any defects, before releasing them for sale.

  Cass. crim., 2 October 2007, LawLex201200001745JBJ. 

  CA Aix-en-Provence, 8 October 1997, LawLex200400001255JBJ: the importer of a product has a personal obligation to ensure the conformity of the product it introduces into the national market, without being able to rely on the labeling of the product or the supplier's indication, meaning that its bad faith automatically results from this lack of verification.

 Cass. crim., 17 September 2002, LawLex200300003361JBJ: the affixing to the product of the CE marking which establishes a presumption of conformity with European standards does not exempt the importer responsible for the first placing on the market from the obligation to verify its compliance with the requirements in force; 26 November 2002, LawLex200300003359JBJ; 6 April 2004, LawLex200400000972JBJ: the intentional element of the offense of deception is characterized when the importer, in its capacity as a professional and as the persons responsible for the first placing on the market, markets the goods on arrival in France without carrying out a second conformity check.

  Cass. crim., 10 January 2006, LawLex200600001657JBJ.

  CA Nîmes, 9 May 1995, LawLex200400001165JBJ;  CA Rennes, 18 January 1996, LawLex200400000489JBJ;  CA Angers, 10 April 1997, LawLex200400001261JBJ;  CA Versailles, 20 September 2001, LawLex200300003967JBJ;  CA Nancy, 29 November 2007, LawLex201200001775JBJ;  CA Paris, 4 July 2007, LawLex201200001914JBJ;  CA Bordeaux, 18March 2008, LawLex201200001846JBJ; Cass. crim., 20 September 2011, LawLex201200000946JBJ.

  Cass. crim., 20 November 2001, LawLex200600000995JBJ: deception on the quality of the goods attributable to the distributor, who was required to verify the conformity of the goods with the applicable quality standards, who merely assigned only two employees to the daily verification, not limited to the size, of some 100,000 kilograms of goods, and who therefore took the risk of putting goods on the market whose essential qualities do not comply with their labeling.

  Cass. crim., 20 March 2012, LawLex201200002340JBJ.

Negligence

Non-performance of a contractual obligation may constitute a deception on the condition that the intention of the perpetrator to deceive the contractor is characterized : the poor performance of the contract cannot, on its own , constitute grounds for the conviction. With regard to a provision of services, the intentional element of the offense is established when the service provider has not, in its capacity as a professional, taken all the precautions necessary to carry out its contractual mission  or when it knew that it would not be able to perform the promised services . Thus, the fact that the accused cancelled some services provided for in the holiday brochure which it knew, by their undeniable appeal, to be decisive, is of a deceptive nature . Furthermore, the delivery, in full knowledge of the facts, of goods other than those provided for in the contract, characterizes a deception .

   CA Pau, 17 January 1990, LawLex200400001080JBJ.

   CA Orléans, 22 April 1996, LawLex200400001072JBJ;  CA Grenoble, 25 November 1999, LawLex200400001057JBJ.

  Cass. crim., 18 September 1995, LawLex200400001132JBJ.

  Cass. crim., 4 May 2004, LawLex200400001169JBJ, for a tour operator offering its customers the opportunity to take part in the Cannes festival among celebrities although it knows that it cannot perform the promised services.

   CA Paris, 17 September 2008, LawLex201200001935JBJ.

 Cass. crim., 18 December 2012, LawLex201300000604JBJ.

French Consumer Law

560. Non-performance of a contractual obligation

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560. Non-performance of a contractual obligation

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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