Clauses, inserted in contracts concluded between professionals and non-professionals or consumers, “which have the object or effect of creating, to the detriment of the non-professional or the consumer, an imbalance between the rights and obligations of the parties to the contract” are unfair. .
The unfair terms are determined either by reference to a list established by the decree of March 24, 1978. Lists are also drawn up by the Unfair Terms Commission . The judge can also declare a clause as abusive.
The determination that a term is abusive makes it deemed unwritten, all other contractual provisions remaining. It is only when the unfair clauses reach the substance of the contract and thus lead to the nullity of the contract.
The notion of consumer has given rise to numerous questions and to fluctuating case law. If the directive of April 5, 1993 leans towards a restrictive definition of the consumer defined as a natural person not entering within the framework of a professional activity (art.2, b) the French law aims not only the consumer but also the ” Not professional”. The Court of Cassation adopted an extensive definition of the consumer by considering that a legal person could benefit from the protection as long as he was relative to the content of the contract ” in the same state of ignorance as any other consumer”(Cass. 1st civ., April 28, 1987, D. 1988.1 n. Delecbecque, JCP 1987.II.20892 n. Paisant, RTD Civ. 1987, 548, obs. Mestre. She then adopted a more restrictive vision by delimiting the area of protection for contracts not directly related to his professional activity (Cass. 1re civ.> Nov. 24, 1993, D. 1994 som. com.p. 236, obs Paisant, Defrénois, 1994 p. 818 obs . D. Mazeaud, Cass. 1re civ. 21 Feb. 1995, JCP 1995.II.22502, n. Paisant, 5 Nov. 1996 contracts, conc.consom. 1997 n ° 12)
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The notion of unfair terms as provided for by article L132-1 translates a passage from the criterion which was provided for by the law of January 10, 1978, which was that of an excessive advantage, to the criterion of the directive of significant imbalance. The 1978 law wanted to entrust the determination of unfair terms to a commission, a manifestation of the reigning interventionism. The lack and failure of regulatory power has led judges to recognize the power to declare a term unfair. The notion of abusive clause has given rise to an abundance of case law.
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The Court of Cassation, by a judgment dated March 15, 2005 , affirmed
if, by judgment of 22 November 2001, the Court of Justice of the European Communities ruled: “the concept of consumer, as defined in article 2, under b), of directive n ° 93/13 / EEC of the Council, of April 5, 1993, concerning unfair terms in contracts concluded with consumers, must be interpreted in the sense that it relates exclusively to natural persons ”, the distinct notion of non-professional, used by the French legislator, n ” not exclude legal persons from protection against unfair terms ;