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

According to Article 9 of Directive No 85/374, the term “damage” means: “a) damage caused by death or by personal injuries; b) damage to, or  destruction of, any item of property other than the defective product  itself, with a lower threshold EUR 500, provided that the item of  property: i) is of a type ordinarily intended for private use or  consumption, and ii) was used by the injured person ma …

Damage to property or persons

According to Article 9 of Directive No 85/374, the term “damage” means: “a) damage caused by death or by personal injuries; b) damage to, or  destruction of, any item of property other than the defective product  itself, with a lower threshold EUR 500, provided that the item of  property: i) is of a type ordinarily intended for private use or  consumption, and ii) was used by the injured person mainly for his own private use or consumption.  This Article shall be without  prejudice to national provisions relating to non-material damage” .

The French legislature has not taken up the exact definition of damage given by the directive. Article 1245-1 (former Art. 1386-2), which makes no mention of compensation for non-material damage, nor of the requirement that the product be used for private purposes, did not initially allude to the EUR 500 threshold referred to in the directive. In essence, compensable damage within the meaning of Article 1245-1 of the Civil Code  implies physical or material injury, provided, however, in the latter case, that it does not cover the defective product in itself. The Court of Cassation has recently clarified that product liability covers both proprietary and non-proprietary harm resulting from damage to reputation caused by an injury to a person or property other than the defective product itself, including indirect harm . 

Originally, the transposition law - Law of 19 May 1998 - did not provide any limitation to compensation for bodily injury. Declared non-compliant with the directive by the Court of Justice , Article 1386-2 (now Article 1245-1) has been amended . The text now provides that liability for defective products applies to compensation for damage resulting from injury to the person, and to “compensation for damage greater than an amount determined by decree , which results from damage to a property other than the defective product itself”  independently of any injury to the health of consumers or their bodily integrity . A car manufacturer therefore cannot be ordered to compensate the purchaser for the value of the goods stolen from the trunk of his vehicle, following a failure of the closing system of the trunk, without taking into account the deductible of EUR 500. This threshold applies only to damage to property, not to bodily injury for which the principle of full compensation prevails . In addition, a Member State may not limit the damage caused to a thing or consisting in the destruction of a thing which will be compensated, without prejudice to the effectiveness of the directive .

2)  Exclusion of damage caused to the defective product itself

In accordance with Article 9 of the directive, Article 1245-1 (2) expressly excludes the damage caused to the defective product itself  and the losses resulting from that damage . Thus, according to the courts, damage to potatoes for human consumption, from seed potatoes assumed to be defective and which they are only the fruit of, cannot be compensated on the basis of Articles 1245-1 et seq. of the Civil Code which imply damage to a good other than the defective product itself . Similarly, following the dismasting of a vessel, the cost of the renovation works, loss of rent and loss of enjoyment resulting from the impossibility of using it, do not constitute compensation damage within the meaning of Article 1245-1 . On the other hand, the professional buyer of wine bottles who complains of a defect in the glass of the bottles which has obliged him to destroy the batch concerned, may claim compensation on the basis of liability for defective products, since the damage for which compensation is sought affected products other than the bottles, and specifically the wine they contained . In addition, according to the Court of Justice , the damage caused by a surgical operation to replace a defective medical product constitutes damage for which the manufacturer is liable when such an operation is necessary to eliminate the defect in the product. Aligning itself with the position of the Court of Justice, the Court of Cassation has thus held that when the rupture of a defective prosthesis was at the origin not only of the subsequent replacement surgery, but also of all the additional surgical procedures as well as of the successive injuries resulting therefrom for the victim,f the producers are liable for the whole of those damages . It recently added that in the case of damage to the defective product alone, the cost of replacement does not in itself constitute a loss that can be compensated under product liability, but it does when the damage results from an injury to the person and the defective product is an implanted medical device .

The directive only covers damage to property which is of a type normally intended for private use or consumption and which has been used by the victim mainly for his private use or consumption (Directive No 85-374, Article 9(b)(i) and (ii)). The text also provides that the producer is not liable if it proves “that the product was neither manufactured or distributed by him in the course of his business” (Directive No 85-374, Article 7(c)) . However, not only does French law make no distinction according to whether or not the victim is a professional, but also Article 1245-14 (former Article 1386-15) recognizes the validity of the contractual provisions which limit the compensation of damage caused to property not used by the victim primarily for his use or private consumption. The Court of Cassation therefore asked the Court of Justice for a preliminary ruling on whether the directive was compatible with “the interpretation of a national law or established case law enabling the victim to claim compensation for damage caused to a thing intended for professional use and used for that purpose, provided that the victim only provides proof of the damage, the defect in the product and the causal link between this defect and the damage” . The Union judge stated that the directive does not preclude a Member State from adopting or maintaining a system of liability for defective products which permits compensation for damage caused to goods intended for professional use, provided that such damage does not fall within its scope . Thus, according to the Paris Court of Appeal, even if, pursuant to Articles 1, 9 and the 9th recital of the directive, compensation for damage to a thing intended for professional use and used for that purpose is not part of the points that the directive regulates, the Union legislator does not intend, however, to deprive Member States of the right to provide, as regards compensation for this type of damage, a system of liability which corresponds to that established by the directive .  The Court of Cassation aligned itself with this solution : in the absence of any national law limitation, Article 1245-1 of the Civil Code applies to damage caused to a good intended for professional use . 

Article 1245-14 (former Article 1386-15), paragraph 1, prohibits in principle clauses which exclude or limit the liability of the producer because of his defective product. This provision provides, however, that for damage caused to goods that are not used by the victim primarily for its use or its private consumption, the clauses stipulated between professionals are valid. The Court of Appeal in Lyon has ruled that the fact that the victim is the owner of several properties from which it receives rental income does not automatically confer a status of professional lessor such that the damage caused to his property, used for its use or its private consumption, cannot be subject to a clause in the general terms and conditions of sale of the importer limiting the obligation of the latter to the replacement of defective items alone .

According to the Court of Appeal in Paris , the provisions of an inter-branch agreement providing for the application of penalties in the event of a quality defect of the product, do not limit or exclude compensation for the harmful consequences of the contamination of a milk tank by the defective milk of a producer, provided that the compensable damage is greater than EUR 500, and that it results from damage to property other than the defective product.

In principle, the courts do not allow compensation for damage on the basis of Articles 1245 et seq. of the Civil Code in the absence of material or bodily injury caused by the safety defect . Compensation for non-material damage necessarily implies that it is consecutive to physical or material injury as required by Article 1245-1. Thus, even if a can of cooked red kidney beans containing a mouse does not provide the safety which can legitimately be claimed, as a food product, the victim, apart from the surprise and disgust he may have felt on this discovery, suffered no damage meeting the requirements of Article 1245-1 of the Civil Code, meaning that compensation for the loss of margin attributed to this incident because of the intense media coverage could not be granted on the basis of liability for defective products .

6)  Harm resulting from contamination ("préjudice de contamination") 

Case law recognizes the existence of specific damage linked to the impossibility, in the case of evolutionary pathologies, of fixing a date of consolidation and a permanent incapacity rate, known as the harm resulting from contamination. Originally granted to victims infected by AIDS during blood transfusions, compensation for this harm was extended to transfused persons infected with the hepatitis C virus . Limited to disputes involving the liability of blood transfusion establishments, the harm of contamination was invoked by victims who had ingested horse meat infected with trichinella spiralisa larvae, within the framework of the application of Articles 1245 et seq. of the Civil Code, but the trial courts rejected their claim: continuing to live with dead or living larvae encysted in the skin throughout life does not give entitlement in itself to compensation for harm of contamination, since after treatment, the infected persons have no adverse development to fear or the need to undergo strict and continuous supervision and that evidence of disruption to their social or family life, persistent suffering once cured, or any further consequences, is not established, apart from the purely subjective and unreasoned discomfort due to the awareness of the presence of larvae in their muscles . 

Recent case law has accepted that a victim can claim compensation under product liability law for the non-material harm caused by unpreparedness, resulting from a change in the formulation of the drug prescribed to him or her. To claim compensation, the victim must establish that the change occurred without his/her knowledge, and that it caused undesirable effects. The non-material harm of unpreparedness presupposes bodily injury, which is the manifestation of the risk but must be distinguished from bodily harm, of which it is the corollary .

Case C-203/99 Henning Veedfald, Judgment of 10 May 2001, LawLex200900001108JBJ: compensation for non-material damage depends exclusively on the provisions of national law.

 “The provisions of this title shall apply to compensation for damage resulting from an injury to the person. They shall also apply to compensation for damage greater than an amount determined by decree, which results from a damage to a property other than the defective product itself.”

 Cass. 1re civ., 9 July 2003, LawLex200300003979JBJ; 14 October 2015, LawLex201500001291JBJ; 22 January 2020, LawLex202000000139JBJ: the plaintiff does not provide a legitimate reason for obtaining the measures of investigation provided for in Article 145 of the Code of Civil Procedure on the basis of liability for defective products, since the fires that occurred caused damage only to the defective agricultural machinery, whereas this provision applies only to compensation for damage resulting from injury to the person and for damage in excess of an amount determined by decree, which results from injury to a property other than the defective product itself.

The loss of business and the lack of supply of a replacement machine following the damage to the disputed agricultural machine are not compensable on the basis of liability for defective products, Cass. 1re ch. civ. 9 December 2020, LawLex202000003675JBJ.

  CA Grenoble, 28 June 2006, LawLex200600001862JBJ.

  Cass. 1re civ., 14 October 2015, LawLex201500001291JBJ.

  CA  Montpellier, 30 April 2009, LawLex201200001609JBJ, upheld by Cass. 1re civ., 1 July 2015, LawLex201500000871JBJ; CA Dijon, 22 March 2018, LawLex201800000477JBJ.

 CJEU Case C-503/13; C-504/13 Boston Scientific Medizintechnik GmbH, Judgment of 5 March 2015, LawLex201500000272JBJ.

Cass. civ. 1re, 2 February 2022, LawLex202200001067JBJ.

Cass. com. 8 April 2021, LawLex202100001015JBJ.

For an application, see CJEU Case C-203/99 Henning Veedfald, cited above: holding that the exemption from liability where an activity has no economic or  business purpose does not extend to the case of a defective product  which has been manufactured and used in the course of a specific medical  service which is financed entirely from public funds and for which the patient is not required to pay any consideration.

  Cass. com., 24 June 2008, LawLex201300001065JBJ.

 CJEU Case C-285/08 Moteurs Leroy Somer, Judgment of 4 June 2009, LawLex201100000469JBJ. 

  CA Paris, 23 February 2016, LawLex201600000488JBJ.

 Cass. com., 26 May 2010, LawLex201600000633JBJ, on the compensation of damage to goods for professional use caused by products put into circulation before the entry into force of the transposition law: declaring that the manufacturer of an alternator which, without being defective within the meaning of Directive No 85/374, caused, by overheating, a fire to break out in the generator of a hospital, is entitled to take against the companies subrogated in the contractual action of the hospital (the company in charge of the maintenance of the installation and its insurer), all means of defense it could invoke against its own contractual partner (installer of the generator), and in particular the clause contained in its general conditions of sale limiting the compensation only to the damaged transformer and studs. Cass. civ. 1re, 11 January 2017, LawLex201700000154JBJ, stating  that the directive does not govern the repair of damage caused to a thing intended for professional use and used to that end, but applies to the producer of a faulty good regardless of the intended use, whether private or professional. 

Cass. 1re civ., 11 July 2018, LawLex201800001114JBJ; 14 November 2018, LawLex201800001793JBJ.

 CA Lyon, 18 January 2018, LawLex201800000176JBJ: in this matter, such was not the case because the victim was not registered in the Trade and Companies Register or subject to the corresponding tax rules and only collected the rents from his property managed by a real estate firm which was the recipient of quotes and invoices. 

  CA Paris, 6 March 2008, LawLex201200001620JBJ and  CA Paris, February 21, 2008, LawLex201200001836JBJ.

 CA Chambéry, 7 March 2017, LawLex201700000600JBJ: the producer may be required to indemnify the non-material harm which may be caused by damage to property, insofar as apart from the damage to the defective product itself, Article 1245-1 (former Article  1386-2) of the Civil Code makes no distinction between the types of damage to repairable property. 

  CA Saint-Denis, La Réunion, 3 June 2013, LawLex201400000755JBJ

  Cass. 2e civ., 2 April 1996, LawLex200600001337JBJ: the specific harm of contamination, which does not include physical harm, includes all physical and psychological personal injuries resulting in particular from the reduction of life expectancy, disruptions in social, family and sexual life, as well as suffering and its fear, aesthetic damage and loss of amenity, and all opportunistic conditions following the declaration of the disease; on the pain and suffering of anxiety, see Cass. 1re civ. 28 November 2018, LawLex201900000972JBJ.

  Cass. 1re civ., 1 April 2003, LawLex200600001339JBJ, on the basis of Article 1147 (now Article 1231-1) of the Civil Code together with the provisions of Article 47-I and III of the Law of 31 December 1991.

 Case C-52/00 Commission v France, Judgment of 25 April 2002, LawLex200900001029JBJ .

   CA Toulouse, 14 December 2004, LawLex200500008595JBJ

Regarding the change in formulation of Levothyrox, CA Nîmes, 2 February 2023, LawLex202300002461JBJ, specifying that the moral harm caused by unpreparedness, which results from the patient's lack of psychological preparation for the risks involved, and the resentment he or she feels at not having consented to an attack on his or her bodily integrity, presupposes that, to be compensated on the basis of Article 1245 of the Civil Code, the victim must establish that he or she was not informed by the manufacturer of the Levothyrox he or she had been prescribed to treat hyperthyroidism of the change in formulation, and that the change in formulation caused him or her to suffer side effects.

  Law No 2004-1343 of 9 December 2004 for the simplification of the law.

 EUR 500, fixed by Decree No 2005-113 of 11 February 2005.

  Cass. 1re civ., 3 May 2006, LawLex200600001198JBJ: the conviction of a manufacturer to pay damages for putting vehicles into circulation with a faulty closing system on their trunks must necessary take into account the EUR 500 deductible provided for by Article 9 of Directive No 85/374 of 25 July 1985. 

Cass. civ. 1re, 9 December 2020, LawLex202000003672JBJ : the provisions relating to liability for defective products apply to compensation for damage resulting from an injury to the person, but also for damage exceeding EUR 500, caused by an injury to property other than the defective product itself, resulting in its destruction or alteration, independently of any injury to the health of consumers or their integrity,  and therefore, a court of appeal, after having noted an alteration of the wines following their pollution by the products of which the defectiveness was claimed, cannot reject the plaintiff's liability action for defective products on the grounds that the pollution of the wines is not of a nature to harm the health of the consumers, nor their physical integrity.

 Case C-203/99 Henning Veedfald, Judgment of 10 May 2001, LawLex200900001108JBJ; the amount of the reparable loss, which must be greater than EUR 500 pursuant to Article 1245-1 of the Civil Code, is a substantive condition of the product liability action, and not a cause of inadmissibility, CA Paris, 22 May 2014, LawLex201800000994JBJ.

Case C-203/99 Henning Veedfald, Judgment of 10 May 2001, LawLex200900001108JBJ. 

French Consumer Law

676. Damage to property or persons

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

676. Damage to property or persons

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise