ABUSE OF WEAKNESS

    ABUSE OF WEAKNESS AND CONSUMER LAW

The ” abuse of weakness or ignorance ” is sanctioned by the consumer code, under the terms of article L 123-8 of the Consumer Code, which tends to repress the consent imposed in the methods of sale where vulnerable people are particularly susceptible to undue commercial pressure.

 These are door-to-door sales, canvassing by telephone or fax. The same applies when a personalized solicitation has been made without this solicitation necessarily being nominative, to go to a point of sale, carried out at home and accompanied by the offer of special advantages, meetings or excursions organized by or for the benefit of the offender. This also covers commitments obtained when the transaction was made in places not intended for the marketing of the good or service offered or within the framework of fairs or exhibitions; or when the transaction was concluded in an emergency situation which placed the victim of the offense in the  

Abuse of weakness or ignorance is characterized by  the circumstances when these show that this person was not in a position to assess the scope of the commitments he was making or to detect the tricks or artifices deployed to convince him to subscribe to it, or show that it has been subjected to a constraint.  

 The provisions of Articles L122-8 e t s and L. 122-9 apply to anyone who has abused the weakness or ignorance of a person to take delivery, without real consideration, amounts in cash or by bank transfer, bank or postal checks, payment orders by payment card or credit card, or securities, within the meaning of article 529 of the civil code.  

ABUSE OF WEAKNESS AND CRIMINAL LAW

If consumer law penalizes the abuse of weakness and ignorance, it should be noted that a criminal offense is also provided for by article 225-15-2 of the Penal Code in the event  of fraudulent abuse of the state of ignorance or the situation of weakness either of a minor, or of a person whose particular vulnerability, due to his age, to an illness, to an infirmity, to a physical or mental deficiency or to a state of pregnancy, is apparent and known to its author, either of a person in a state of psychological or physical subjection resulting from the exercise of serious or repeated pressures or techniques likely to alter his judgment,to lead this minor or this person to an act or an abstention which is seriously prejudicial to him.

When the offense is committed by the de facto or de jure leader of a group which pursues activities the purpose or effect of which is to create, maintain or exploit the psychological or physical subjection of the people who participate in these activities, the penalties are increased to five years imprisonment and 800,000 euros 

Assessment of the state of vulnerability

 the abuse of weakness must be assessed with regard to the state of particular vulnerability at the time when the act seriously prejudicial to the person is performed   Cass. crim. May 26, 2009

ACT OR ABSTENTION SERIOUSLY PREJUDICIOUS TO THE VICTIM

within the meaning of this text, constitutes an act seriously prejudicial for a vulnerable person, that of disposing of his property by will in favor of a person having brought him to this disposition Cass.crim. October 21, 2008

Prescription of public action

The statute of limitations, in matters of abuse of weakness, does not begin to run until the last deduction made from the victim’s assets when the fraudulent abuse results from a single criminal operation; this is the case in the event of successive loans obtained, fraudulently, from one of his patients by a doctor, during treatment that lasted several years ( Cass. Crim. 5 October 2004 )

Civil action

Admissibility of the civil action of the children of the victim

 relatives of the victim of fraudulent abuse of ignorance or weakness are admissible to provide proof of damage from which they have personally suffered and which results directly from the facts, subject of the   Cass prosecution . crim. November 3, 2009