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

Article 1245-12 (former Article 1386-13) of the Civil Code provides that the liability of the producer may be reduced or waived , taking all the circumstances into account, when the damage is caused jointly by a defect in the product and the fault of the victim . On the other hand, the fault of the victim who has not caused the damage, but has only aggravated it, cannot reduce or eliminate the lia …

Fault of the victim

Article 1245-12 (former Article 1386-13) of the Civil Code provides that the liability of the producer may be reduced or waived , taking all the circumstances into account, when the damage is caused jointly by a defect in the product and the fault of the victim . On the other hand, the fault of the victim who has not caused the damage, but has only aggravated it, cannot reduce or eliminate the liability of the producer . Thus, a manufacturer of a defective bypass cannot escape liability by establishing a causal relationship between the victim's failure to wear personal protective equipment and his bodily injury, since the failure to wear protective eyewear was not the cause of the explosion, even if it contributed to aggravating the harm, and that the certificate issued to him by the Agence nationale de formation professionnelle des adultes (AFPA) on ammonia refrigeration circuits makes no mention of the obligation to wear protective eyewear during operations, or, more generally, to wear personal protective equipment . The fault of the victim is entirely exculpatory when it has the characteristics of force majeure , i.e. when it is unforeseeable, unavoidable and external in nature .

The fault of the victim is not necessarily of an intentional nature: carelessness or negligence, provided that it plays a causal role in the occurrence of the damage , is sufficient. The right of the victim of a defective product to obtain compensation for the injury suffered cannot be reduced because of a pathological predisposition when the condition resulting from it has been caused or revealed only by the harmful event . The victim who wanted to remove the grass under the defective mower without stopping the engine commits obvious imprudence . Failure to comply with the basic rules of prudence and safety in the light of the various safety instructions prescribed in the operating instructions justifies the manufacturer's partial exemption from liability . On the other hand, failure to comply with the manufacturer's recommendations concerning the first maintenance review of a scooter, the 500-kilometer threshold foreseen for this revision having been exceeded by approximately 300 kilometers at the time of the accident, cannot be characterized as a fault exempting the manufacturer from liability under Article 1245-12 of the Civil Code in the absence of any link with the inflammation of the scooter . Likewise, the placing of a gas stove near a refrigerator which has caught fire, contrary to the instructions in the installation handbook, is not a fault of the victim limiting its right to reparation in the absence of any causal link between the fault and the damage, because according to the expert witness, the use of the stove only had a very small effect on the refrigerator and cannot be the cause of the abnormal heating of one of its elements . In any case, the producer, who bears the burden of proving the victim's fault , cannot merely argue the inertia of the victim when the product was recalled by the distributor, without substantiating his alleged fault by a supporting document .

The courts assess the fault in abstracto by taking into consideration the information or lack of information  provided to the victim and his status as a professional or layman . Any imprudent and wrongful behavior of the victim must be analyzed in the light of the instructions for use provided with the product, but also of the conduct normally expected of a normally prudent user . As bending a toy is neither abnormal nor unforeseeable on the part of young children, the producer has no grounds to invoke a fault on the part of the victim . Placing a finger on an element intended to provide protection against injuries which may result from direct contact with the fan blades of a mobile swimming pool filtration unit cannot be regarded as at fault, in particular for an infant . Similarly, the fact that the victim, an experienced hiker, could not have been unaware of the risk of progressive loosening inherent in the use of a telescopic trekking pole with screw tightening is not sufficient to establish his fault since it is not demonstrated that he was aware of the stress levels not to be exceeded when using it for support .To exempt or reduce his liability, a manufacturer must still show that the victim was in possession of the information leaflet  . In addition, that information must be sufficiently complete . This is not the case when the general terms and conditions of sale of ready-mixed concrete only mention the risks of allergies, redness or burns and advise the wearing of gloves and glasses, without drawing the customer's attention to the need to wear boot covers and waterproof protective clothing, meaning that the fact that the victim did not remove his clothing impregnated with the concrete cannot characterize his fault within the meaning of Article 1245-12 of the Civil Code . In general, the courts are more severe with the professional user . The fault of the professional is thus characterized when the manufacturer proves that it has not complied with the warnings and safety measures contained in the instructions for use  or with the regulatory provisions in force . However, according to the Court of Appeal in Lyon, a cheese producer cannot control the quality of raw milk prior to any processing, in order to rule out risky milk upstream of production, as the specifications for the protected designation of origin, to which it is subject, require it to rennet the milk within a maximum time-limit of 24 hours after the earliest milking, As a result, in the absence of any proven fault on its part, a court cannot declare it jointly liable with the producer of the defective milk, since under Article 1245-12 of the Civil Code, the producer's liability can only be reduced or eliminated when the damage results jointly from a defect in the product and the fault of the victim .

  Cass. 1re civ., 25 February 2016, LawLex201600000482JBJ: holding that the conduct of the victim in the use of the spreader made available to him constitutes the direct and exclusive cause of his injury, meaning that his action on the basis of Article 1386-1 (now Article 1245) must be dismissed.

  CA Rouen, 9 June 2010, LawLex201200001874JBJ

  CA Amiens, 8 October 2015, LawLex201600000615JBJ;Cf. CA Nîmes, 4 July 2024, LawLex202400005476JBJ: a fault on the part of the victim likely to completely exonerate the manufacturer from its liability,is characterized when the latter has not carried out the operations of maintenance of the motorcycle relating to the control of the fuel pressure and the value of the pressure sensor of the intake intake with a diagnostic tool within the period recommended by the manufacturer, and that after having neglected to check the cause of a flashing FI warning light, which had occurred that very morning, which could indicate an interruption or a short circuit to ground, or an input signal from the fuel pump control that was too strong, and despite this alert, had traveled approximately 250 km.

 CA Nancy, 6 November 2017, LawLex201700001904JBJ.

CA Rouen, 17 March 2011, LawLex201200001790JBJ: the manufacturer of a refrigerator whose equipment failure is the only cause of the fire cannot rely on the warning contained in the instructions for use relating to the risk of fire in case of prolonged absence if the product is not unplugged to invoke a fault on the part of the victim, without proving that the victim was in possession of this notice.

CA Paris, 8 September 2015, LawLex201600000618JBJ; CA Rennes, 4 June 2010, LawLex201200001829JBJ, considering that the fact that a fish farm has an emergency installation with a generator designed to start in the event of a power cut and not in the event of a simple power drop, cannot reduce EDF's liability, since the victim could have thought that he was protected by his emergency installation, as he was not informed by the electricity producer of the exact technical measures it could take to minimize the consequences of a specific incident.

CA Nancy, 9 February 2009, LawLex201200001940JBJ: no fault can be attributed to the victim or his family causing the damage when they were not informed of the risk of shearing the general power cable in case of an incorrect position and the need to place it in a certain way to avoid such a risk. See also Cass. 1re civ., 4 February 2015, LawLex201500000222JBJ: the liability of the producer cannot be reduced or eliminated as a result of the victim's fault, since in the absence of a specific connector making it impossible to supply an installation running on butane gas with a propane gas cylinder, a user other than the buyer of the installation, who did not necessarily have access to the information notice of the consignment contract, could not be informed of the risk presented by using propane gas to supply a device running on butane gas; CA Dijon, 22 March 2018, LawLex201800000477JBJ: the producer of bottles which are defective within the meaning of Article 1245-3 of the Civil Code cannot have its liability reduced or waived by the fact that the seller of the potentially contaminated wine committed a fault by refusing bottle sorting operations, insofar as no indication was given as to how the defect would be eliminated during this sorting process and the wine initially ordered had to be replaced urgently by other bottles of wine of superior quality, for which a commercial discount was granted, so that the 62280 bottles at issue could no longer be sold.

 CA Rennes, 4 June 2010, LawLex201200001829JBJ; CA Paris, 7 September 2020, LawLex202000002199JBJ: the victim, a lay user of bicycles, cannot be blamed for having continued to use her bicycle after having heard, a rattling noise coming from the front mudguard approximately five kilometers before falling, since she had just purchased a new bicycle and could not reasonably have foreseen that that noise could cause the front wheel to lock, no warning had been given in this respect, more particularly under the safety instructions in the user manual, and as such a risk had not been contemplated during the design process of the bicycle, which had been tested and approved by an accredited body.

  CA  Versailles, 14 June 2007, LawLex201200001643JBJ.

   CA Paris, 10 December 2007, LawLex201200001860JBJ.

   CA Aix-en-Provence, 7 November 2012, LawLex201600000569JBJ.

CA Toulouse, 9 December 2019, LawLex201900001572JBJ.

Cass. 1re civ., 2 June 2021, LawLex202100003494JBJ, noting that a court of appeal cannot reduce to 60% the share of liability of the electricity supplier incurred as a result of a power surge in the electrical network on the grounds that the victims had had a non-compliant device installed on their private network, considered to be dangerous, since their fault did not cause the damage, but merely aggravated it.

  CA Rouen, 17 March 2011, LawLex201200001790JBJ

   CA Nancy, 13 March 2008, LawLex201200001837JBJ: the victim's use of a lighter in the vicinity of the anti-parasite product administered to his animals cannot be qualified as wrongful, in the absence of a sufficiently preventive presentation of the product highlighting its high flammability;  CA Reims, 17 May 2010, LawLex201200001574JBJ: holding that the applicant's exertion of pressure on a garage door, described as violent, but nevertheless less than the maximum effort that can be generated by manual traction, while he was provided with only a very brief notice concerning its assembly and use and no warning was affixed to the mechanism at issue, does not constitute a fault of the victim within the meaning of Article [1245-12] of the Civil Code. 

 Cass. 1re civ., 7 November 2006, LawLex200700000113JBJ; cf. CA Montpellier, 10 December 2019, LawLex201900001569JBJ: the professional facade worker who, while he could not ignore the potential risk of using a cement-based plaster, dispensed with the information on his safety information sheet on the internet, used household gloves instead of appropriate gloves, continued to work and keep those gloves on while the burn occurred - which aggravated the injury due to the heat, maceration, perspiration and the fact that he had no minimal protection for his body, wearing only a T-shirt to spray a product containing cement - committed various faults, which, by their combination, are at the origin of his injuries and which exempt the manufacturer of the defective plaster from liability.

CA Rennes, 4 July 2008, LawLex201200001617JBJ;  CA Chambéry, 27 October 2009, LawLex201200001849JBJ

  CA Rouen, 20 March 2008, LawLex201200001838JBJ.

 CA Caen, 5 February 2013, LawLex201400000760JBJ

CA Lyon, 21 November 2023, LawLex202300014164JBJ; 4 June 2024, LawLex202400004143JBJ.

CA Aix-en-Provence, 26 October 2023, LawLex202300012982JBJ.

   CA Caen, 5 February 2013, LawLex201400000760JBJ

   CA Bastia, 9 March 2011, LawLex201200001565JBJ

  CA Pau, 11 October 2011, LawLex201200001799JBJ: holding that evidence of fault on the part of the victim is not produced even if the victim had not complied with the installation instructions since his conduct did not have a causal role in the occurrence of the accident.

 Cass. civ. 1re, 22 November 2017, LawLex201700001949JBJ; CA Toulouse, 13 August 2018, LawLex201800001215JBJ.

   CA Chambéry, 29 September 2009, LawLex201200001626JBJ

   CA Rouen, 20 March 2008, LawLex201200001838JBJ; in the same vein CA Lyon, 6 March 2018, LawLex201800000415JBJ:  the accumulation of clothes on the lower shelf of a closet and the obstruction by a cloth of the ventilation system which caused the transformers to heat up, which caused the fire, constitutes a fault of the victim - even though he was in possession of the instructions for use of the transformers warning of the need to ensure that the circulation of air is not obstructed, is such as to extinguish the liability of the manufacturer of the caravan since a design defect, and in particular the unsuitability of the installation of the transformers in the closet, is not established; CA Reims, 18 June 2019, LawLex201900000859JBJ: compensation is reduced by half as a result of the failure of the victim, a vineyard professional, to comply with the basic rules of due care, despite the existence of a safety defect in the disputed wine-making machinery.

French Consumer Law

681. Fault of the victim

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681. Fault of the victim

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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