INFORMATION OBLIGATION
LexInter | September 17, 2019 | 0 Comments

INFORMATION OBLIGATION

THE INFORMATION OBLIGATION

Case law and the legislator have developed information obligations. The information obligation is unknown in the Civil Code. It reflects the requirement of trust and loyalty .

Sources of the information obligation

The obligation to contract in good faith imposes a duty of information v. Cass.civ. 1 March 15, 2005 .

The disclosure requirement can be linked to the requirement of consent free and informed. It is also a matter of good faith in the formation of the contract.

Such a duty has been considered by the doctrine as constituting an autonomous obligation (see Mrs. Murielle Fabre-Magnan: Of the obligation of information in the contracts. Test of a theory  “LGDJ 1992)

Pre-contractual obligation to provide information

The obligation to provide information constitutes a pre-contractual obligation which contributes in particular to the development of a notion of “professional” and the imposition on the professional of a duty of obligation towards the layperson, which he either professional of another specialty or non-professional. The scientific and technical evolution, the complexity and the technicality of the products and services, means that in the evolution of the contractual framework the imbalance structure of knowledge and competence is an essential element of the relations not only between individuals and companies. , but also companies with regard to their suppliers and service providers. The one who does

The manufacturer’s obligation to inform

Case law has thus imposed an obligation to inform the manufacturer with regard to the professional buyer in the event that the latter’s competence does not give him the means to assess the exact scope of the technical characteristics of the goods delivered to him. (Cass. 1st civ 3 June 1998).

In a judgment on March 2, 2007 by the plenary assembly of the Court of Cassation imposed an obligation of active information by deciding that “the banker who offers his client to whom he grants a loan, to adhere to the contract of group insurance that he has taken out to guarantee, in the event of the occurrence of various risks, the performance of all or part of his commitments, is required to inform him of the adequacy of the risks covered to his situation borrower’s personal account, the delivery of the notice is not sufficient to meet this obligation ”. The banker has an obligation to provide information for technical operations (see for cashing a check in foreign currency ( Cass.com. 23 January 2007 ) or speculative. The information is owed to the client who does not have the knowledge necessary to preserve his interests and protect his rights.

Consumer contracts and information obligation

An obligation to provide information to consumers has been the subject of legislative provisions, now codified. Article L 111-1 of the Consumer Code requires any professional selling goods or services, before the contract is concluded, to enable the consumer to know the essential characteristics of the good or service.

In line with the case law concerning the doctor’s obligations in the medical contract, the law on patients’ rights of March 4, 2002 establishes these information obligations, in particular within the framework of the provisions of article L 1111-2. of the public health code.

Franchise contract and information obligations

The legislator has imposed specific information obligations on the franchisor.

Sale and information obligation

In the Baldus Cass.civ. 1 May 3, 2000 in the matter of the sale of works of art, the Court of Cassation decided that ” no obligation of information weighed on the purchaser “.

Similarly, with regard to a real estate sale, the Court of Cassation affirmed

the purchaser, even a professional, is not bound by an obligation to inform the seller about the value of the property acquired

Cass.civ. January 3, 17 2007

CAUTION

 

Preliminary draft reform of the law of obligations

The Article 1110 of the preliminary draft reform of contract law imposes a duty to inform

Art. 1110 The contracting party who knows or should have known information of which he knows the decisive importance for the other has an obligation to provide him with information.

This obligation to provide information, however, only exists in favor of those who have been unable to obtain information for themselves or who have legitimately been able to trust their co-contracting party, due in particular to the nature of the contract, or the quality of the parties.

It is incumbent on the person claiming to be a creditor of an obligation to provide information to prove that the other party knew or should have known the information in question, on condition that the holder of this information is released by proving that he had fulfills its obligation.

Information which has a direct and necessary link with the object or cause of the contract will be considered relevant.

European Contract Code

Article 7 of the European Contract Code  imposes a duty of information

” During the negotiations, each of the parties has the duty to inform the other on each factual or legal circumstance of which it is aware or of which it must be aware and which allows the other to realize the validity of the contract and of the interest in concluding it  “

 

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