Legal Tip January 2023: B2C Sellers: is it possible to object to the cancellation of an order raised by a consumer and based on formal irregularity of the contract?

 

 

 

 

• Case Study:

A consumer tries to cancel an order on the grounds that the binding contract does not comply with the mandatory formalism. Will this action necessary succeed? What can the business professional can do against it?

• What about French law/case law?

As a reminder, French consumer law prescribes, for certain contracts, a certain number of mandatory provisions which aim to inform the consumer so that he can commit by giving his informed consent. For the sake of consumer’s protection, some jurisdictions may automatically condemn non-compliance with mandatory formalism through the contract’s nullity, which has detrimental consequences for the seller, as it leads notably the latter to give back to the client all settled amounts, including advance payments.

But nullity is not necessarily inevitable: if the general conditions attached to the contract provides for mandatory pre-contractual information, the customer – who will cannot deny being informed of the required – cannot raise anymore the contract’s cancellation if it can be evidenced that he has knowingly agreed to be bound by a contract not complying with mandatory formalism (see judgment of the Court of Cassation of August 31, 2022 no. 21-12.968, regarding a contract concluded off-premises).

• What should me reminded?

This legal mechanism of “confirmation” thus brings some legitimate limitation to the – sometimes – excessive protection granted to the consumer. Once the client has been duly informed, prior to the conclusion of the contract, of the mandatory formalism, his decision to perform the contract (regardless of the fact that the formalism is not complied with) "covers" in a way the formal irregularity and therefore prevents the client from raising the contract’s cancellation. The customer must, in a way, face his own responsibility.

• In practice, what should be done?

Warning: in order to successfully object to the contract’s cancellations for formal irregularity requires that some conditions should be met, among which notably:

- to inform the consumer in an accurate and exhaustive manner of the mandatory pre-contractual information (e.g. in the general conditions enclosed in the contract)

- to make sure of the clarity, availability and enforceability of the mandatory pre-contractual information and be able to provide proof thereof

- to be able to evidence that the consumer has - in full knowledge of the mandatory information - deliberately decided to enter into a contract which derogates from it.

Otherwise, if the consumer's informed consent cannot be evidenced, the doubt will benefit the client in the event of a dispute.

The drafting of consumer contracts requires technical legal expertise and in-depth knowledge of the law and case law in force. TEMPLE BOYER LEGAL lawfirm can assist you adequately.

Sarah Temple-Boyer, Attorney