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

Disputes relating to the unsuitability of the thing sold for its intended purpose raise the question of the competent court and applicable law when they concern a seller and purchaser located in two different countries. The rules vary according to whether it is the action of the buyer against his immediate seller or the direct action of the sub-buyer against the manufacturer of the thing.
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Determining the jurisdictional and substantive rules

Disputes relating to the unsuitability of the thing sold for its intended purpose raise the question of the competent court and applicable law when they concern a seller and purchaser located in two different countries. The rules vary according to whether it is the action of the buyer against his immediate seller or the direct action of the sub-buyer against the manufacturer of the thing.

Under French law, the action in warranty against latent defects, whether brought by the purchaser against his immediate seller or the direct action of the sub-buyer against the original seller, is of a contractual nature . Consequently, the jurisdictional option provided for by Article 46 of the Code of Civil Procedure - which gives the claimant the option to seize, in addition to the court of the place where the defendant is domiciled, the court of the place of effective delivery of the thing or of the place of performance of the services - is applicable .

In EU law, the concept of “matters relating to a contract” is of an autonomous nature, which does not necessarily cover the same realities as in French law. The Court of Justice thus held that “Article 5(1) of the [Brussels] Convention (now Article 7 (1) of Regulation No 1215/2012) is to be understood as meaning that it does not apply to an action between a sub-buyer of goods and the manufacturer, who is not the seller, relating to defects in those goods or to their unsuitability for their intended purpose” . According to the Union judge, the action cannot be contractual when no undertaking freely assumed by one party towards the other has been granted. When it comes to determining the competent court, the action of the sub-buyer against the original seller is, therefore, contrary to French law, of a tortious nature. Staying in line with this solution, the Court of Cassation held that the financial lessee's action against the seller was not contractual within the meaning of Article 5 (1) of the Brussels Convention (now Article 7(1) of Regulation No 1215/2012), in the absence of a commitment freely granted by the seller in respect of the financial lessee . Thus, in accordance with the procedural rules governing jurisdiction in French law, in matters of tort, the competent court is that of the place of the harmful event or the court in whose jurisdiction the damage was suffered.

These rules apply only in the absence of any choice of competent court by the parties. Where there is a jurisdiction clause -  even if drafted in another language - the purchaser is required to sue in the court designated by that clause when the whole of the documents framing the contractual relationship specifically draw the purchaser's attention to the seller's general terms and conditions containing it . 

In principle, all international sales of goods are subject to the Vienna Convention of 11 April 1980, known as the Convention on the International Sale of Goods (CISG), drawn up under the aegis of the United Nations . Article 35 of the Convention requires the seller to deliver goods “which are of the quantity, quality and description required by the contract and which are contained or packaged in the manner required by the contract”. It specifies that the goods may be deemed to be in conformity with the contract when they are fit for the habitual use of goods of the same type or for any special purpose expressly or tacitly brought to the knowledge of the seller at the time of conclusion of the contract, unless it appears from the circumstances that the buyer did not rely on the seller's skill and judgment, or that it was not reasonable for him to do so . The text adopts a very broad concept of “conformity”, which includes the latent defects in the thing, as defined in Article 1641 of the Civil Code. Its wording is very close to the definition of the non-conformity subsequently laid down in Directive No 1999/44 of 25 May 1999 on certain aspects of the sale and warranties of consumer goods, now repealed and replaced by Directive No 2019/771 of 20 May 2019.

Article 36 of the Convention declares the seller liable for any “lack of conformity” which exists at the time of transfer of the risks to the buyer, even if this defect only appears later. Under Article 39, the buyer is deprived of the right to rely on a lack of conformity if he does not report it to the seller, specifying its nature, within a reasonable period of time from the moment he found or ought to have found it . In all cases, the buyer is deprived of the right to invoke a lack of conformity, if he does not report it at the latest within two years from the date on which the goods were handed over to him, unless this time-limit is incompatible with the duration of a contractual guarantee.

The rules of the Convention are suppletive: Article 6 permits the parties to exclude its application or to amend its provisions. The exclusion may even be tacit. Thus, when the parties invoke and discuss without reservation the warranty against latent defects provided for in Article 1641 et seq. of the Civil Code, the parties voluntarily place, in the knowledge of the international nature of the sales they have concluded, the solution of their dispute under the French domestic law of sales and tacitly use the power given by Article 6 to exclude the application of the Convention . Moreover, since the Vienna Convention applies only to contractual disputes, direct action by the sub-buyer against the original seller, which is a matter relating to tort, cannot be governed by it even where the original seller has stated that its warranty would be applicable to users of the product .

Action by the sub-buyer, however, is not without any legal framework. It falls under the Hague Convention of 15 July 1995, which designates the law applicable to tangible moveable property , or Regulation No 593/2008 of 17 June 2008 (Rome I), on the law applicable to contractual obligations, which serves as a general rule of law for most international contracts which are not covered by a specific convention.

 Cass. Ass. plén., 7 February 1986, LawLex200600001136JBJ; Cass. com., 24 November 1987, LawLex200700000616JBJ; Cass. 1re civ., 7 June 1995, LawLex200500005488JBJ; CA Pau, 17 June 2010, LawLex201200001784JBJ; CA Rennes, 7 January 2011, LawLex201200001877JBJ.

 CA Bordeaux, 12 January 2012, LawLex201200001676JBJ.

 See. Cass. 1re civ., 10 October 1995, LawLex200500003845JBJ. See also Cass. 1re civ., 13 February 2013, LawLex201300000314JBJ, in which the Court of Cassation criticizes the trial courts for not having investigated whether Swiss law, which was applicable to the dispute under the Hague Convention, was not contrary to French international public order in that it sets a limitation period of one year from the date of delivery.

 Case C-26/91 Jakob Handte & Co. GmbH, Judgment of 17 June 1992 LawLex200900002082JBJ, and on referral, Cass. 1re civ., 27 January 1993, LawLex201600000259JBJ. See also Cass. 1re civ., 27 March 2007, LawLex201200001442JBJ: the action between the sub-purchaser of defective material and a manufacturer established abroad is a matter relating to tort.

 Cass. 1re civ., 17 January 2006, LawLex200600001792JBJ.

 Cass. civ. 1re, 15 May 2018, LawLex201800000756JBJ.

 For an application, see CA Lyon, 28 September 2001, LawLex200600001794JBJ.

CA Dijon, 13 February 2020, LawLex202000000233JBJ, holding that deformations in the thing resulting from the quality of the material supplied by the manufacturer constitute a lack of conformity within the meaning of the Vienna Convention of 1980.

 CA Bordeaux, 15 May 2012, LawLex201200001856JBJ, holding that the period of six months or ten months cannot constitute a reasonable period within the meaning of Article 39.1 of the Vienna Convention; CA Dijon, 13 February 2020, LawLex202000000233JBJ, considering that the intermediary seller who waits almost three months to report the defect to the manufacturer does not respect the reasonable period requirement under Article 39 and loses the right to compensation.

 Cass. 1re civ., 25 October 2005, LawLex200600001772JBJ.   

 Cass. 1re civ., 5 January 1999, LawLex200600001775JBJ.

French Consumer Law

644. Determining the jurisdictional and substantive rules

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644. Determining the jurisdictional and substantive rules

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Les décisions de justice citées dans ce paragraphe :

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