News June 2021: the importance of being earnest (!) and having clear and readable general terms between professionals

Reminder:  

In the B2C universe, it is generally acknowledged that unclear general conditions of sale are unenforceable towards the client “consumer” (a font size smaller than 8 is generally excluded) and that vague, ambiguous or illegible provisions must be construed in the consumer’s best interest (article L.133-2 of the French consumer code).

Familiar with those principles of readability and clarity required in consumer law, professionals may tend to forget that those same principles must also govern relations between professionals and the commercial documents that bind them.

The decision of the Poitiers Court of Appeal of June 8, 2021 reminds professionals of the importance of properly drafting the commercial documents that will govern their relations with their business partners.

What to remember: Illegible general conditions are to be regarded as unenforceable between professionals

• Poitiers Court of Appeal (FR), 1st chamber, 8 June 2021, No 19/02155

In this case, a company terminates its telephone contract before the end of its engagement with the SCT (the commercial telecommunications company), since the subscription initially chosen did not meet its needs anymore. SCT rejecting such termination, the client raises the unenforceability of SCT’s general and particular terms and conditions.  

Indeed, such conditions of service opposed to the customer actually contained numerous clauses that were illegible, and for good reason, the Poitiers Court of Appeal ruled in favor of the customer, confirming that the characters of the GTC of the general and particular conditions of service were “extremely small” and “fuzzy”, to the point where only the paragraph titles were recognizable, however “with difficulty”.

Consequently, the court rules that it cannot be deduced that “by the signature of the subscription forms, the company (...) has expressly acknowledged to have taken knowledge of the general conditions of sale and to have accepted them”.

It should be noted by the way that the company SCT has since been sentenced again in two French decisions  of June 24, 2021 of the commercial chamber of the Grenoble Court of Appeal (No 19/03410 and No 20/01245) for, between others, the same reasons relating to the illegibility of its general terms and conditions.

What lessons in practice?

It is in the professional's interest to ensure that its general and / or specific conditions (of sale, supply, service, etc.) are accessible, visible and legible, even in its relations with its commercial partners. The stakes are high for the supplier or seller: the unenforceability of its conditions can be raised by the customer, including that of bad faith, in order to evade its own contractual obligations.

 

Sarah Temple-Boyer                                                                       Ambre Boyer

Lawyer                                                                                            Legal Intern