In the context of a BtoC contract, the professional has a duty to provide pre-contractual information to the consumer. In a ruling handed down on December 20, 2023, the French Supreme Court (Cour de cassation) has clarified the consequences of failure to comply with this pre-contractual obligation.
Article L.111-1 of the French Consumer Code sets out the information that a professional must provide to a consumer before the latter enters into a contract for valuable consideration.
This information includes the essential characteristics of the product, its price, the date or deadline for delivery of the goods or performance of the service, information about the professional, the existence and terms and conditions of legal guarantees and any commercial guarantees, the possibility of recourse to a consumer mediator, etc.
Article 1112-1 of the French Civil Code stipulates that “the party who is aware of information whose importance is decisive for the consent of the other party, must inform the latter of this fact if, legitimately, the latter is unaware of this information or trusts his co-contractor”, and specifies that information of decisive importance is that which “has a direct and necessary link with the content of the contract or the capacity of the parties”.
Article 1112-1 of the French Civil Code expressly states that failure to comply with this duty to inform may lead, in addition to the liability of the defaulting party, to the nullity of the contract on the grounds of lack of consent, under the conditions set out in articles 1130 et seq. of the French Civil Code.
With this in mind, let’s return to the decision handed down by the French Supreme Court on December 20, 2023.
At a trade fair, a consumer entered into a contract with a professional for the purchase, installation and commissioning of photovoltaic panels.
Subsequently, claiming that certain mandatory information had not been included on the order form – namely, the essential characteristics of the products purchased and the delivery and installation times – the consumer sued the professional for nullity of the sales contract and damages.
In a ruling handed down on May 3, 2022, the Amiens Court of Appeal declared the sales contract null and void, and ordered restitution of a certain sum plus statutory interest.
The professional seller appealed against this ruling, arguing that :
- the professional’s failure to comply with his pre-contractual obligation to inform the consumer is not, unless expressly provided for, sanctioned by the nullity of the contract;
- the Court of Appeal’s ruling merely states that the lack of information necessarily lead to a defect in the consumer’s consent, without specifying which defect in consent the consumer was the victim of (fraud, error or violence);
- the Court of Appeal deduces the nullity of the contract from the mere finding of a breach of the pre-contractual obligation to provide information under articles L.111-1 of the French Consumer Code and 1112-1 of the French Civil Code, without finding if the irregularities in the purchase order concerned elements that were decisive for the consumer’s consent, or that these breaches were intentional.
As raised by the professional seller, the judges of the French Supreme Court (Cour de cassation) recognize that article L. 111-1 of the French Consumer Code does not expressly provide for the nullity of the contract in the event of a breach of the pre-contractual information obligations it sets out.
However, the judges affirmed that it follows from the combination of articles L. 111-1 of the French Consumer Code and 1112-1 of the French Civil Code, that a professional’s failure to comply with pre-contractual information obligations entails the nullity of the contract if the lack of information relates to essential elements of the contract.
Having stated this principle, the judges of the French Supreme Court (Cour de cassation) confirmed the nullity of the sales contract at issue, noting that the order form did not mention the essential characteristics of the products purchased, nor the delivery and installation times, so that there must have been a defect in the consumer’s consent to essential elements of the contract.
Our advice to professional sellers: ensure that your pre-contractual and contractual documents contain the information listed in article L.111-1 of the French Consumer Code and, more generally, all information whose importance is decisive for the consumer’s consent.
