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 concept of ancillary safety obligation is based on contractual good faith and fairness. Initially developed by case law within the framework of the contract of carriage, this obligation extends not only to sales, but also to other service contracts  in particular in the medical sector , and is imposed on a multiplicity of debtors . The safety obligation is a “risk transfer mechanism” from the …

Contractual liability

 The concept of ancillary safety obligation is based on contractual good faith and fairness. Initially developed by case law within the framework of the contract of carriage, this obligation extends not only to sales, but also to other service contracts  in particular in the medical sector , and is imposed on a multiplicity of debtors . The safety obligation is a “risk transfer mechanism” from the victim to the professional, whose liability is thus more easily incurred . Depending on the type of contract, the safety obligation may be a results-based  or best efforts  obligation. When it is a best efforts obligation, the creditor must demonstrate a fault on the part of the debtor, the damage and the causal link, whereas only proof of the last two elements must be provided in the case of a results-based obligation .

In general, the courts tend to extend the scope of application of contractual liability. This significant expansion of the contractual safety obligation, however, was interrupted by the development of the special regime of liability for defective products under Articles 1245 et seq. (former Articles 1386-1 et seq.) of the Civil Code, which does not admit the application of other civil liability rules based on the lack of safety of a product, with the exception of liability for fault and the warranty against latent defects. As the Court of Cassation pointed out, the victim who does not establish the existence of a fault separate from the safety defect of the product concerned, can only base his action on Articles 1245 et seq. of the Civil Code, and not on Articles 1231-1 (former Article 1147) and 1603 . Even before the transposition of Directive No 85/374 by Law No 98-389, the first civil chamber of the Court of Cassation sought to distinguish between contractual and tort liability to hold that the professional seller is bound, both vis-à-vis third parties and its buyer, to deliver products free of any defect or manufacturing defect such as to create a danger for persons or property . It specified that “every producer is liable for the damage caused by its product, both vis-à-vis the immediate victims and indirect victims, without it being necessary to make any distinction depending on whether they had the status of contracting parties or third parties” , thus going in the direction of an autonomous safety obligation as defined by the Consumer Code in Article L. 421-3 (former Article L. 221-1).

 See, for example, for an operator of an acrobatics park, Cass. 1re civ., 22 January 2009, LawLex201300000911JBJ; for a subcontractor in charge of a maintenance contract, Cass. com., 12 July 2005, LawLex200600001463JBJ; for a beauty institute, see  CA Montpellier, 23 March 2010, LawLex201300000917JBJ.

 Case law imposed on the doctor for the execution of a medical contract a best efforts safety obligation, enshrined by Law 2002-303 of 4 March 2002 on patients' rights and the quality of the health system. According to Article L. 1142-1 of the Public Health Code, all actors in the medical, occupational and healthcare sector incur a liability for fault, except in the case of nosocomial infections and defects in health products.  Health products are divided into two main categories: pharmaceuticals (medicines, cosmetics, etc.) and medical devices. For a doctor: CA Aix-en-Provence, 17 October 2007, LawLex201200001956JBJ; CA Dijon, 4 October 2011, LawLex201200001560JBJ, holding that the doctor is the debtor of a results-based safety obligation concerning the products he uses for the performance of a medical investigation or care procedure, but is only bound by a best efforts obligation when fitting devices in patients; for a provider of care services: Cass. 1re civ., July 12, 2012, LawLex201200002373JBJ, holding that the liability of providers of care services can be sought only for fault, when they use the medical products, equipment and devices necessary for the exercise of their professional or the performance of a medical procedure. However, in case of transfusion of contaminated blood, healthcare establishments are bound by an obligation to achieve a safe result to take all useful measures to ensure the safety of the blood products supplied and transfused (a solution which is also consistent with the liability regime established by Article L. 1142, I, paragraph 1 of the Public Health Code, since human blood is a health product), Cass. 2e civ., 21 April 2005, LawLex200600000227JBJ; Cass. 1re civ., 12 April 1995, LawLex200600001139JBJ: result-based safety obligation of blood transfusion centers.

 For a sports association, see Cass. 1re civ., 16 May 2006, LawLex200600002190JBJ, holding that mere compliance with the safety requirements laid down by the sporting bodies is insufficient for a sports obligation to avoid the duty of care and diligence imposed on it with respect to safety; for a tour operator, see Versailles, 27 October 2016, LawLex201600001833JBJ, holding that an attack constitute a force majeure event such as to exempt a tour operator from its liability for breach of its general safety obligation, since it is necessary to distinguish between the risk of an attack, which is known, and its occurrence in a given place and affecting given victims which, by nature, is entirely random and unforeseeable.

 Cass. civ. 1re, 7 March 2018, LawLex201800000445JBJ: the sports association, of which the monitor accepted the victim's failure to take up his proposal for training without ensuring his ability to use a climbing wall safely, must be held liable for the fall of the latter, insofar as an assessment in situ would certainly have made apparent the victim's inexperience and the lack of coordination with the person responsible for ensuring it.

 See Cass. com., 12 July 2005, LawLex200600001463JBJ, holding that the undertaking responsible for the maintenance of a helicopter is bound by a contractual results-based obligation; Montpellier, 23 March 2010, LawLex201300000917JBJ, retaining a results-based safety obligation incumbent on a beauty institute with regard to the equipment used; Cass. civ. 1re, 11 January 2017, LawLex201700000329JBJ: a results-based safety obligation is imposed on the professional organizer of a paragliding course with regard to the equipment provided to perform his service, with the result that his liability is incurred when he provides the victim making a solo flight with a radio that had an unexplained breakdown, which caused the harm, in view of the difficulty that it caused the victim on landing; CA Aix-en-Provence, 6 April 2017, LawLex201700000717JBJ, on the energy supplier's result-based obligation; Cass. 1re civ., 30 November 2016, LawLex201800000689JBJ: the safety obligation of the bungee jumping organizer is a result-based obligation given the absence of any active role by the participant, whose only initiative lies in the decision of whether or not to jump and in the intensity of the momentum exerted, and who therefore relies totally on the organizer to ensure his or her safety ; Cass. civ. 1re, 9 January 2019,  LawLex201900001037JBJ: the operator of a water slide has a results-based obligation of safety towards users, since the latter are unable to control their trajectory determined by the shape and the incline of the slide and have a minimal margin of maneuver, the way they take the turns having only a very marginal incidence and the speed being determined by the incline and the sliding on the water.

 If the contract is characterized by the existence of a hazard or where the creditor of the obligation plays an active role: Cass. 1re civ., 25 November 2015, LawLex201600000613JBJ, for the operator of a car park, when the user of its services, who has to move around the car park, both on foot and in his vehicle, does not have a purely passive role; Cass. 1re civ., 22 January 2009, LawLex201300000911JBJ, for the operator of an acrobatics park; Cass. 1re civ., 25 November 2015, LawLex201600000613JBJ, which thus considers that a car park operator breaches its safety obligation when not having sufficiently clearly indicated the malfunction of the payment terminals at the exit, this lack of information was one of the causes of the victim's fall; CA Colmar, 13 March 2017, LawLex201700000561JBJ:  a hairdresser is bound by a contractual best efforts safety obligation when using straightening products; CA Montpellier, January 21, 2020, LawLex202000000111JBJ, specifying that even if the best efforts safety obligation which is incumbent on the organizer of sports and leisure activities must be assessed more rigorously when the activity in question is dangerous - in this case, motorcycling, the driving of which requires an active role - and when it is available to minors, this more rigorous assessment must not, however, lead to a reversal of the burden of proof. See, along the same lines, Cass. civ. 1re, 5 June 2020, LawLex202100000154JBJ7, holding that there is a specific duty of supervision, attention and vigilance with regard to the conduct of tournaments, with respect to a sports association organizing canoe races, given the dangerous nature of the activity.

 Cass. 1re civ., 30 November 2016, LawLex201800000688JBJ: a folk dancing association, bound by a best-efforts obligation, cannot be held liable for the damage caused to one of its members by the throwing of bottle by a group in a state of drunkenness on the grounds that, the intrusion of individuals being in no way unforeseeable, it should have provided security at, or been able to lock the door of the premises, in the absence of evidence that the assault was the outcome of a risk related to the activity practiced, which would have required the implementation of special security measures to protect the members present inside.

 Cass. 1re civ., 17 March 2016, LawLex201600000628JBJ. However, the victim may act on the basis of contractual liability when the putting into circulation of the product sold preceded the entry into force of the Law of 19 May 1998, codified in Articles 1245 et seq. (former Articles 1386-1 et seq.) of the Civil Code: See Cass. com., 24 January 2006, LawLex201600000621JBJ.

 Cass. 1re civ., 17 January 1995, LawLex200300003038JBJ.

 Cass. 1re civ., 24 January 2006, LawLex200600001142JBJ.

French Consumer Law

657. Contractual liability

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657. Contractual liability

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Les décisions de justice citées dans ce paragraphe :

Sous parties

Les notions juridiques connexes

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