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 tort liability of the professional may be incurred on the basis either of Article 1240 (former Article 1382) and 1241 (former Art. 1383), or of Article 1242, paragraph 1 (former Article 1384, paragraph  1) of the Civil Code.

Article 1240 of the Civil Code implies the existence of a fault - and not a mere material fact -  , damage and a causal link between the fault and the damage. The fault is established when the victim characterizes a lack of information from the professional regarding the precautions to be observed for the use of a dangerous product . It may also be the result of the passive attitude  or negligence  of the professional which may affect the entire production and distribution chain of a product . Thus, the distributor who sells hoops which, because of the very principle of their design, present a risk of accidents, without having first carried out a thorough technical examination , or who decides to ignore the recall procedure which the defective product having caused the damage is subject to , or the producer who does not justify having carried out, in view of the essential safety requirements, an analysis of the product distributed under its trademark , incur their tort liability vis-à-vis the third-party victim of the defect of the product sold. Similarly, the manufacturer who sells elements as being able to be associated with certain items of equipment, without first ensuring, by means of thorough testing, the compatibility of these materials, commits a tort obliging it to hold the contractor harmless against the convictions handed down against him for the benefit of the project owner .  The manufacturer and the marketing authorization holder of a drug have committed a fault and caused moral prejudice to the users of their product by not informing them of its change of formula by means of clearly legible information on its packaging and package insert . However, it cannot be inferred from the conduct of the operator of a tobacconist's who, in the absence of an agreement between the Minister of Health and its supervisory authority, failed to conduct an information campaign on the harm caused by the abusive consumption of tobacco, a fault likely to incur his tort liability in the event of the death of a consumer of tobacco, since the victim, a regular smoker, was not supposed to be unaware of the risks of such an attitude to his health . Similarly, the owner of land including a cliff, located in a populated area of a mountain resort, does not commit a fault for not reporting the existence of the contentious rocky outcrop, insofar as the access road to the residence gives a clear view of it and no regulation requires the signalling of danger zones or that they be secured, and, as on the contrary, the installation of a fence is prohibited, except by derogation, by the regulatory specifications on the development of the area .

Pursuant to Article 1242, paragraph 1, people are liable for damage caused on account of the thing  they have in their custody . The implementation of liability on things under one's care requires the meeting of the conditions of liability (a thing, damage, a causal link  between the thing and the damage) and determining the custodian of the thing , i.e. the person who exercises the powers of use, control and management over the thing. In most cases, the owner of the thing has custody of it , except in case of transfer of custody , where the holder of the thing becomes its custodian. As a result, liability for damage caused by a thing under one's care, linked to its use and to the powers of supervision and control exercised over it, can only be enforced when the role of the thing in the fall that occurred, while it was in the custody of its user, is demonstrated .   An undertaking is liable for the floor in its care in the event of a fall by an individual, when the surface, covered in icy snow, is abnormally dangerous in relation to its purpose, which is to allow pedestrians to pass . The victim must prove the material intervention of the thing and, in case of absence of contact between it and the thing, the causal role of the latter, as well as, in the case of an inert object, its abnormality due to its abnormal position, its defective character or its dangerousness . Thus, the victim who became owner and custodian of the products having caused the damage at the time of its occurrence cannot incur the liability of a large retail company on the grounds of Article 1242, paragraph 1, of the Civil Code . Similarly, the fact that a chair in a shopping mall is not fixed to the floor is not sufficient to characterize its dangerous nature, nor its poor condition . On the other hand, a restaurant owner who voluntarily gives a customer bottles of methylated spirits so that the customer can himself refill the burners used in its establishment where customers fry their own food, does not transfer the care of those bottles and is therefore liable for the injury by burns caused by the explosion of one of the bottles . For things which have a specific or internal dynamism  such as gas cylinders , case law distinguishes between damage due to the behavior of the thing and its use, and that caused by its structure and therefore its manufacture. In the first case, the custodian is presumed to be the owner of the thing while in the second case, the presumption lies with the manufacturer . Therefore, the non-manufacturing seller of a cartridge with its own potentiality of dynamism and dangerousness, insofar as it does not influence the structure of the thing, cannot be presumed to be liable for the explosion of a rifle . The Court of Cassation refused to apply this distinction to cigarettes smoked, since they lacked any dynamism of their own, the damage they cause is inextricably linked to the products contained in, and released by them, and the behavior of the smoker who excessively consumes the product, and the custody of the structure implies that the manufacturer of a product, even a dangerous one, has the power to monitor and control the elements of the thing and prevent the damage, which cannot be the case here . While it previously acknowledged a general obligation on the part of the distributor to ensure the safety of products or services on the basis of Article L. 421-3 of the Consumer Code, the Court of Cassation, in a reversal of its previous case law, now considers that the liability of the operator of a store with an open entrance can only be engaged with regard to the victim of a fall which occurred in this store and which was caused by an inert thing, on the basis of Article 1242, paragraph 1, of the Civil Code, on the condition that the victim demonstrates that this thing, placed in an abnormal position or in a poor state of repair, was the instrument of the damage .

Taking this a step further, some trial courts have ruled that the operator of a walk-in store is liable for damage caused to a customer by the blade of a circular saw offered for sale, even if the circumstances of the accident remain undetermined, since it has not been established that the victim handled the saw improperly .

Applying the provisions of the Civil Code, which are very rarely used, establishing liability for the propagation of a fire , the Paris Court of Appeal recently ruled that it was appropriate to apply this special system of liability for damage caused by things, which requires that a burnt thing, in the custody of a person, has caused damage as a result of the guardian's fault, provided that by using the petrol pistol and the jerry cans he was filling for his own benefit, the individual in question inevitably had control, operation and, consequently, custody of them, and, since gasoline is a highly flammable product, prudence should have prompted him to fill the jerry cans on the ground, or to park his vehicle further away, so that the ignition must be attributed to the fault of the guardian of the thing, since this combustion, combined with the fall of the two jerry cans and the subsequent burning of the vehicle, was the cause of the damage caused to the service station .

Force majeure and the victim's fault are the main grounds for exonerating a producer from liability in tort. In practice, however, they are rarely used. Thus, according to the Court of Cassation, while the victim's fault totally exonerates the custodian from liability when it constitutes a case of force majeure, this is not the case for a rider's fall on a circuit, which does not constitute an unforeseeable event for the motorcyclists following him . However, it has been ruled that the offering for sale of a pressure cooker without a reliable safety system incurs the liability of its manufacturer when it fails to demonstrate that the victim used or handled the device under conditions or with instruments that were entirely unforeseeable .

 CA  Limoges, 25 February 2010, LawLex201200001689JBJ.

  TGI Lyon, 13 February 2012, LawLex201200001593JBJ; CA Bordeaux, 23 May 2012, LawLex201200001786JBJ.

 Cass. 2e civ., 20 November 2003, LawLex200600001466JBJ.

 Cass. civ. 2e, 8 June 2017,  LawLex201700001119JBJ.

 CA Angers, 9 December 2014, LawLex201600000646JBJ: liability of the trader for damage caused to a customer's eye by a blunt object that was in an abnormal position.

 Cass. civ. 2e, 8 June 2017, LawLex201700001119JBJ : land, located in a mountainous zone with a number of clearly visible  cliffs, outcrops and escarpments, which does not present any abnormal aspect, and therefore cannot be the instrument of the injury, does not give rise to the liability of the company operating it.

  Cass. 2e civ., 10 January 1990, LawLex200600001459JBJ, excluding the liability of a medical center on the basis of Article 1384, paragraph 1, (now Article 1242, paragraph  1), of the Civil Code, since the victim does not demonstrate that the step which this establishment is custodian of caused his damage, as its location does not require a particular warning and its wear or age does not give it an abnormal character.

  CA Montpellier, 28 June 1990, LawLex200300003168JBJ: the victim cannot incur the tort liability of the manufacturer, since the custody of the structure of the thing is not established. 

  CA Nancy, 24 November 2009, LawLex201300000922JBJ: the owner of an alley, as custodian of the slippery ground causing the fall of the victim, owes him compensation on the basis of Article 1384, paragraph 1 (now Article 1242, paragraph  1) of the Civil Code.

Custody of the thing supposes the autonomy of the custodian, and no instructions are required to have been given to the person who uses it, so that there is a transfer of custody when the user himself takes the initiative to use it outside the power of control of the initial custodian, see CA Poitiers, 8 October 2019, LawLex201900001218JBJ; Cass. civ. 2e, 28 February 1996, LawLex200600001472JBJ: in a store where the customers may serve themselves, it is not sufficient that a customer handles an object offered for sale for there to be a transfer of custody; Cass. civ. 1re, 23 November 2021, LawLex202100006010JBJ, considering that, although the contract of lease of a building entails in principle a transfer of custody from the lessor to the lessee, it does not in itself permit the conclusion that custody has been transferred to the lessee in respect of a water heater which caused damage.  

CA Poitiers, 8 October 2019, LawLex201900001218JBJ: the victim who fell head-first while alone after taking the initiative to use the ladder at issue, so that the custody of the thing was transferred to him, may not seek the liability of the owner of the premises where, furthermore, it has not been established that the inert object placed inside a private residence for the purposes of facilitating temporary access to the building site of that property, was abnormal. 

Cass. 2e civ., 15 June 2023, LawLex202300008074JBJ.

 Cass. 1re civ., 7 March 2006, LawLex201600000622JBJ, holding that since, before 1971 and as of 1953-1954, there were doubts concerning the safety of Distilbene, that the experimental literature reported the occurrence of a wide range of cancers and that, from 1971 onwards, numerous experimental studies and clinical observations contraindicated its use, it is established that the laboratory in question, which, faced with these known and scientifically identified risks, took no action, failed to comply with its duty of vigilance. 

CA Metz, 4 June 2019, LawLex201900000764JBJ.

  CA Dijon, 3 July 2012, LawLex201600000883JBJ. On the other hand, in the event of an accidental fall of a bottle which smashed on the ground, the large retail company concerned, as custodian, is liable for the damage caused to a customer of the store, see Cass. 2e civ., February 28, 1996, LawLex200600001472JBJ.

CA Paris, 5 October 2021, LawLex202100005543JBJ, recalling that a company operating a shopping mall does not incur liability on the basis of Article 1242, paragraph 1, of the Civil Code, with respect to a victim who fell while trying to sit on a chair installed in the shopping mall, unless the latter can prove that the chair, an inert thing, played an active role in the occurrence of the damage, in particular due to either its poor condition or the abnormality of its layout or positioning.

 CA Paris, 1 June 2017, LawLex201700000969JBJ.

 See Cass., 2e civ., 20 November 2003, LawLex200600001466JBJ.

  Cass. 2e civ., 4 November 1987, LawLex200600001454JBJ: gas cylinders are objects with their own dynamism meaning that in case of a sudden eruption of gas, the supplier, as custodian of the structure, must assume liability for the damage caused.

  Cass. 2e civ., 11 October 2001, LawLex200600001460JBJ, holding that manufacturers of orifice plates must also be considered as custodians of the structure, meaning that they must be declared liable, when an accident occurs due to the sudden breakage of these plates, as a direct consequence of the fragility of the steel used to manufacture them.

 CA  Montpellier, 28 June 1990, LawLex200300003168JBJ. Especially as it was bound to the victim by contract and, therefore, the action must be on the contractual level.

  Cass., 2e civ., 20 November 2003, LawLex200600001466JBJ.

Cass. civ. 1re, 9 September 2020, LawLex2021000099JBJ.

  Cass. crim., 14 April 2005, LawLex200600001461JBJ,  declaring that negligence in the search for risk prevention in general, in the light of French and European regulatory requirements, which require consideration of “risks of accidents resulting from foreseeable abnormal situations”, incurs the tort liability of the manufacturer, notwithstanding the fault of the victim; Cass. 1re civ., 4 June 2014, LawLex201600000587JBJ, overturning the decision of a court of appeal which, to exclude any fault of the company having provided the furniture at issue, held that the assemblers had followed the notice even if one of them said in a statement that it was missing; CA Paris, 1er June 2017, LawLex201700000969JBJ: the owner of an establishment in which customers pan-fry their own foie gras and potatoes is in serious breach of his obligations by not ensuring that the restaurant service is organized in such a way as to respond to the legitimate requests of customers to refuel their stove, by not ensuring that the bottles of alcohol are kept out of the reach of customers and by not advising customers who, by handling the bottle of alcohol made available to them without due care, have contributed to the damage.

CA Rennes,, 27 September 2023, LawLex202300012009JBJ.

Art. 1242 ( former 1384), Civil Code: “ A person is liable not only for damage caused by his own act, but also for damage caused by the act of persons for whom he is responsible, or by things in his custody.

However, the person who owns, in any capacity whatsoever, all or part of the building or movable property in which a fire originated will not be liable to third parties for damage caused by this fire unless it is proven that it must be attributed to his fault or to the fault of the persons for whom he is responsible (...)".

CA Paris, 17 January 2024, LawLex202400000623JBJ.

Cass. 2e civ., 30 November 2023, LawLex202300014175JBJ.

  CA Rennes, 13 November 2002, LawLex200300004005JBJ.

  Cass. 2e civ., 4 November 2004, LawLex200600001455JBJ, retaining the liability of the company having ordered the disputed paints, which should have ensured compliance with the legislation on labeling which the successive sellers, as professionals, could not be unaware of and should have provided the updated technical data sheets of the product; Cass. civ. 1re, 10 October 2018, LawLex202000001661JBJ,  Cass. civ. 1re, October 10, 2018, LawLex202000001661JBJ, holding that where there is evidence suggesting that a medical device does not comply with the requirements arising from Directive No 93/42, a certifying body is obliged to inspect the medical devices or the manufacturer's documents listing the purchases of raw materials or carry out surprise visits, failing which its liability in tort may be incurred for breach of its supervisory duty.

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

  CA Paris, 8 September 2015, LawLex201600000618JBJ, specifying that even if the liability of the producer of a defective thing cannot be sought on the basis of Articles 1386-1 et seq. (now Articles 1245 et seq.) of the Civil Code, when the identity of the producer is known, this liability regime does not exclude the implementation of Article 1382 (now Article 1240), in the event of a fault separate from the lack of safety of the product.

  Cass. crim., 23 March 2013, LawLex201400000749JBJ.

  Cass. 3e civ., 28 November 2001, LawLex200300003119JBJ.

Cass. civ. 1re, 16 March 2022, LawLex202200001622JBJ, holding that i) the undertakings in question failed in their obligation to inform by merely indicating on the package insert for Levothyrox, as part of a lengthy text printed in small characters, the two substances used in its composition, without specifying on the box the existence of a change in formula, even though, under Article R. 5121-138 of the Public Health Code, the package insert and packaging of a medicine must include various information, including the list of substances and a special warning if justified, ii) the information relating to this change and provided to health professionals in this case was not of a nature to ensure that of the patients, iii) this change could have been presented in a positive manner with regard to its purpose of stabilization of the active ingredient and effectively indicated on the boxes, and iv) in addition, in the countries where the substitution had already taken place, they had been aware of a significant number of people subject to therapeutic imbalance, as well as a significant risk of negative reactions in a fraction of non-specifically identifiable patients, so that the impossibility of substituting their product should have led them to pay particular attention to informing patients individually.

663. Conditions of implementation