ABUSIVE CLAUSES AND CONSUMER PROTECTION
LexInter | December 3, 2015 | 0 Comments

ABUSIVE CLAUSES AND CONSUMER PROTECTION

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLETHE COURT OF CASSATION, FIRST CIVIL CHAMBER, delivered the following judgment:

Whereas the association of consumers “UFC 38 – Que Choisir” has, on the basis of article L. 421-6 of the consumer code, brought against the company Asly 38, dealer of the Mercedes brand, an action in deletion of clauses contained in order forms for new vehicles, usually offered by this professional, and in compensation for personal damage, known as associative damage, and damage to the collective interest of consumers;

that the company Daimler Chrysler France, exclusive importer of the vehicles of the mark and editor of the disputed order forms, intervened voluntarily at the instance;On the first ground of the cross-appeal of the companies Daimler Chrysler France and Asly 38, which is preliminary:

Whereas the company Daimler Chrysler France and the company Asly 38 criticize the judgment for having, declaring admissible the action of the association UFC 38, ordered the company Daimler Chrysler France to delete the clause appearing in article 2, paragraph 2, of the general conditions of sale inserted in its order forms for new motor vehicles, while, depending on the means, the right to act to remove an illegal or abusive clause recognized by approved associations is limited to the only clauses inserted in the contracts offered or intended for the consumer, so that by allowing the action of the approved association UFC 38 tending to order the deletion of a clause while noting thatit no longer appeared in the contracts offered or intended for consumers or non-professionals, the Court of Appeal would have violated Article L. 421-6 of the Consumer Code;But whereas, although having noted that the disputed clause had been deleted in the version of July 2000, the Court of Appeal having, for its own and adopted reasons, stated that the previous version of the standard contract referred to in the summons, had been offered to customers after the initiation of the proceedings, the means, which in fact lack and only tend to call into question the sovereign assessment of the trial judges as to the evidence submitted to them, cannot be accommodated;

And on the first, third, fourth, fifth, sixth and ninth grounds of the main appeal of UFC 38 – What to choose:Whereas the association UFC 38 – Que Choisir reproaches the judgment for having rejected its request for the removal of the clauses stipulated in articles 2, paragraph 1, 5, paragraph 5, 5, paragraph 10 (version December 1997) and 5, paragraph 8 (January and July 2000 versions), 7 in fine, 9, paragraph 1, subparagraph 1, and 10, paragraph 3, in fine of the general conditions, while:

1 / according to the first means, abusive clauses constitute those which allow the professional to unilaterally modify the terms of the contract without valid reason and specified in the contract and that which has the object or effect of allowing him to unilaterally modify the characteristics of the product to be delivered or the service to be provided; by referring, in a radically inoperative manner, to the terms of article 9 of the general conditions, a stipulation which in no way prevented the seller from being able to escape his obligation to guarantee the price to be paid by the buyer, and by not knowing ” not explaining the causes and consequences, from the point of view of this guarantee,2 / according to the third plea, on the one hand, constitutes an abusive clause that which excludes any possibility of resorting to total credit, which is expressly authorized by the consumer code; considering that the requirement of the payment of a deposit contained in the disputed general conditions of sale was not such as to call into question the right, for the purchaser, to resort to a total credit, and by referring, completely inoperative, in the absence of conflict of the disputed clause with the faculty, for the purchaser, to exercise his right of withdrawal, the court of appeal would have violated, by refusal of application, the article L. 132-1 of the Consumer Code, and, by false application, Articles L. 311-10, L. 311-16, L. 311-17, L. 311-20, L. 311-23, L. 311-24 and L. 311-27 of the same code; and, on the other hand, the disputed clause, which requires the payment of a deposit, a requirement incompatible with recourse to total credit that it provides yet expressly, constitutes, by its very imprecision and ambiguity, an abusive clause; by ruling as it did, the court of appeal violated Articles L. 132-1, L. 311-10, L. 311-16, L. 311-20, L. 311-23, L. 311-24 and L. 311-27 of the Consumer Code; by its very imprecision and ambiguity, an unfair term; by ruling as it did, the court of appeal violated Articles L. 132-1, L. 311-10, L. 311-16, L. 311-20, L. 311-23, L. 311-24 and L. 311-27 of the Consumer Code; by its very imprecision and ambiguity, an unfair term; by ruling as it did, the court of appeal violated Articles L. 132-1, L. 311-10, L. 311-16, L. 311-20, L. 311-23, L. 311-24 and L. 311-27 of the Consumer Code;

3 / according to the fourth plea, on the one hand, constitutes an unfair term that which has the purpose or the effect of imposing on the consumer who does not perform his obligations compensation of a disproportionately high amount; in obligations limited to the payment of a sum of money, damages resulting from the delay of the purchaser in the execution of his commitment to pay the monthly installments of the credit allocated to the purchase of his motor vehicle cannot never consist only in the condemnation to the legal interests, which, moreover, can be due only from the day of an interpellative summons; by considering as not abusive the stipulation of interest higher than the rate of the legal interest without prior notice inserted in the general conditions of sale, which constitute a contract of adhesion, the court of appeal would have violated, by refusal of application, paragraph e) of the appendix to article L 132-1 of the Consumer Code and, by false application, Article 1153 of the Civil Code; and, on the other hand, also constitutes an abusive clause that which allows the professional to oblige the consumer to perform his obligations even though he would not fulfill his own; considering that the absence, in the disputed general conditions of sale, of a stipulation providing for, does not constitute an imbalance to the detriment of the consumer, and therefore an unfair clause,4 / according to the fifth plea, on the one hand, constitutes an unfair term that which provides for a firm commitment by the consumer, when, on the contrary, the performance of the professional’s services is subject to a condition the fulfillment of which depends on his sole will ;

it follows that in the event of cancellation of the order by the purchaser of a motor vehicle, the parts must be replaced in the state in which they were before the conclusion of the sale; by denying any abusive character to the clause providing, in the event of cancellation of the order, the reimbursement to the purchaser of the only trade-in value of his used vehicle, and not that of the real value at which the professional l ‘resold of its own accord before the cancellation of the order, thus obtaining a profit preventing the parties from being placed in the state in which they were before the conclusion of the contract, the court of appeal would have violated paragraph c) of the appendix to article L. 132-1 of the Consumer Code; and, on the other hand, a clause is abusive when it is imprecise or ambiguous, that is to say when its object or effect is to deprive the consumer of his rights; by ruling as it did, when it appeared from the content of the disputed clause that, by its very imprecision and ambiguity, it allowed the seller, in addition to his management and repair costs for the used vehicle, to retain the capital gain generated by the resale of this vehicle, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code; its object or effect is to deprive the consumer of his rights; by ruling as it did, when it appeared from the content of the disputed clause that, by its very imprecision and ambiguity, it allowed the seller, in addition to his management and repair costs for the used vehicle, to retain the capital gain generated by the resale of this vehicle, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code; its object or effect is to deprive the consumer of his rights; by ruling as it did, when it appeared from the content of the disputed clause that, by its very imprecision and ambiguity, it allowed the seller, in addition to his management and repair costs for the used vehicle, to retain the capital gain generated by the resale of this vehicle, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code;5 / according to the sixth plea, the law does not impose on the purchaser of a motor vehicle any special obligation or formality other than sending a registered letter with acknowledgment of receipt once the seven-day period has passed; therefore, the disputed clause, which obliges the buyer to put the seller in default before being able to cancel his order for lack of delivery of the vehicle within the contractually stipulated period, is abusive to add to the law a condition that it does not contain and thus provide the trader with an excessive advantage; by denying it, however, any abusive nature, the Court of Appeal would have violated Articles L. 114-1 and L. 132-1 of the Consumer Code;

6 / according to the ninth plea, unfair clauses are those which allow the trader to inappropriately exclude the legal rights of the consumer in the event of partial or total non-performance or defective performance by the trader of any of his contractual obligations and that which allows it to suppress or hinder the exercise of legal actions or remedies by the consumer, in particular by unduly limiting the means of proof available to the latter; considering that the UFC 38 association established neither that the delivery of the defective part was of interest to the consumer, nor that the lack of delivery of this part would deprive the latter of a means of proof in the event of a dispute ,entailed no significant imbalance between the rights and obligations of the parties to the detriment of the consumer; that the court of appeal which held that the obligation to pay advance payment,was not abusive; that, with regard to the clause providing that “in the event of payment after the due date, penalties will be calculated on the amount including tax, pro rata temporis, on the basis of 1.5 times the legal interest rate” , on the one hand, it does not follow from its conclusions of appeal that UFC 38 had invoked the disproportionate nature of the compensation or the absence of formal notice, and, on the other hand, the court of appeal, having noted, moreover, that article 9, paragraph 1, subparagraph 1, of the contract stipulated that “the buyer can cancel his order and obtain the reimbursement of the deposit paid plus legal interest if, after remains, it does

had not taken delivery of the vehicle ordered within seven days of the agreed delivery date, rightly retained that the clause according to which “the buyer may cancel his order and obtain reimbursement of the deposit paid plus interest legal if after formal notice, it is not delivered within seven days of the agreed delivery date “established a reasonable precaution by the requirement of a formal notice, free from any imbalance between the rights and obligations of parties; that having noted that the association had not provided proof of the consumer’s interest in keeping the defective part, that the transfer of ownership was a reasonable consideration for the guarantee provided and that it was not demonstrated that the failure to hand over the defective part to the consumer would deprive the latter of a means of proof in the event of a dispute, the judgment retains exactly that the clause according to which “the parts or components changed at title of the contractual guarantee become the property of the seller “, which in itself does not interfere with the exercise of legal action, was not abusive; that none of the grievances can be upheld;And on the third and fourth grounds of the cross-appeal of the company Asly 38 and the company Daimler Chrysler France:

Whereas the company Asly 38 and the company Daimler Chrysler France criticize the judgment for having ordered the deletion of the clauses appearing in Articles 10, paragraph 9, 1, paragraph 3 (December 1997 version) and paragraph 2 (July 2000 version) , while :1 / according to the third plea, only those clauses which have the object or the effect of creating, to the detriment of the non-professional or the consumer, a significant imbalance between the rights and obligations of the parties to the contract are unfair, so that in Deeming to be abusive a clause whose effect of significant imbalance on the rights and obligations of the parties to the contract was only possible, the Court of Appeal violated Article L. 132-1 of the Consumer Code by false interpretation ;

2 / and, according to the fourth plea, the unfair nature of a clause is assessed by referring, at the time of the conclusion of the contract, to all the circumstances surrounding its conclusion, as well as to all the other clauses of the contract. contract so that by retaining that the absence of precision relating to the absence of price increase conferred on the disputed clause an unfair character after having noted that the price excluding tax was guaranteed to the purchaser for three months except modifications techniques imposed by the public authorities and that the buyer had the option of canceling his order if the seller could not deliver a vehicle corresponding to the model year, model or particular characteristics specified in the order,the Court of Appeal would have violated Article L. 132-1 of the Consumer Code;But considering having held that the clause, which provided that ” a cover ceases when the owner neglected vehicle maintenance requirements which must be made mandatory in an approved Mercedes and according to the manufacturer’s instructions ,” excluded the warranty of the manufacturer when the customer, even for a simple interview, had requested the services of a professional who was not a member of the network and required the consumer to contact exclusively a representative of the brand for ordinary services, not requiring any particular technical expertise and not jeopardizing safety,the Court of Appeal, rightly, regarded it as abusive, such a clause having as its object and effect, because of the generality of its wording, to exempt the manufacturer from its contractual guarantee even though the failure or the defect of the vehicle for which the consumer claims this guarantee would be unrelated to the work carried out by a repairer independent of the distribution network, and thus creating an imbalance between the rights and obligations of the parties, to the detriment of the consumer ;

he had to undergo the possible prejudicial effects of these modifications, thus creating an imbalance between the rights and obligations of the parts, which does not stop the stipulation of the faculty for the consumer, layman unfit to anticipate such technical modifications, to cancel his order if the seller could not deliver a vehicle with the particular characteristics specified in the order, the Court of Appeal ordered its removal exactly; that the means are unfounded; cancel his order if the seller could not deliver a vehicle with the particular characteristics specified in the order, the Court of Appeal ordered the deletion exactly; that the means are unfounded; cancel his order if the seller could not deliver a vehicle with the particular characteristics specified in the order, the Court of Appeal ordered the deletion exactly; that the means are unfounded;

But on the second ground of the main appeal of UFC 38 – What to choose:Considering article L. 132-1 of the consumer code;

Whereas, to deny the abusive nature of the clause according to which “for any stipulated delivery period exceeding three months, the price due will be that specified in the special conditions: it will however be increased or reduced by the price difference resulting from the evolution of the Mercedes-Benz tariff between the day of the order and that of the delivery “, the judgment retains that the consumer remained free not to accept the possible modification of the price and had the possibility of canceling the order;Whereas in determining itself thus, while the disputed clause, which did not provide for the option for the consumer to refuse the modification and to terminate his order, gave the manufacturer the possibility of increasing his price, even though the delay of delivery exceeding three months would have been stipulated at its convenience, thus creating a significant imbalance in the rights and obligations of the parties, to the detriment of the consumer, the court of appeal has, by a refusal of application following the distortion of the said clause , violated the aforementioned text;

And on the seventh plea of ​​the same appeal:Having regard to article L. 132-1 of the consumer code and point d) of the appendix to said code;

Whereas to reject the request for deletion of the clause providing that “the seller may cancel the order and keep the deposit paid if the buyer, after formal notice, has not taken delivery of the vehicle ordered within seven days which follow the agreed delivery date “, the judgment holds that the customer, having signed an order form and benefiting from a price guarantee within three months, is held, except in cases of force majeure, of the obligation to pay this price and to take delivery, so that the right of termination would not constitute an unjustified advantage for the seller;Whereas by being determined thus, whereas, having noted, moreover, that the buyer could cancel his order and obtain the reimbursement of the deposit paid, increased by legal interest, if, after formal notice, he did not was not delivered within seven days of the agreed delivery date, the result was that the disputed clause, the object or effect of which was to allow the trader to withhold sums paid by the consumer when the latter renounces to perform the contract, without providing for the right, for this consumer, to receive compensation of an equivalent amount from the trader when it is the latter who waives it, thus creating an imbalance between the rights and obligations of the parties to the detriment of the consumer,as the abusive clauses commission also stated in its recommendations n ° 91-02 and 04-02, in that it punishes more heavily the non-performance of the consumer than that of the professional, should be regarded as abusive, the court appeal violated the above provisions;

And on the eighth plea of ​​the same appeal:
Considering article L. 132-1 of the consumer code;
Whereas, to deny the abusive nature of the clause according to which “the repair (of the vehicle in the event of a fault) cannot have the effect of extending the guarantee period”, the judgment states that the limitation of the contractual guarantee that it entails does not constitute an unjustified advantage for the professional since the client retains the benefit of legal guarantees.
Whereas by determining itself thus, whereas, insofar as it is likely to avoid the legal obligation to add any period of immobilization of at least seven days to the duration of the guarantee which remains to run at the date of the consumer’s request for intervention or of the provision for repair of the good in question, if this provision is subsequent to the request for intervention, when the buyer requests a professional, during the course of the contractual guarantee which was granted to him during the acquisition or repair of movable property, a repair covered by the guarantee, the disputed clause had the object or the effect of suggesting, to that extent, the consumer thanhe was deprived of his right, thus creating to his detriment a significant imbalance between the rights and obligations of the parties, the court of appeal violated the aforementioned texts;
And on the second ground of the cross-appeal of the companies Asly 38 and Daimler Chrysler France:
Considering article L. 132-1 of the consumer code;
Whereas, to declare abusive and order the deletion of the clause providing that “the parts recognized as defective and exchanged for which the guarantee has been refused will be destroyed or returned to the owner at his request and at his expense”, the judgment holds that, as soon as there has been no exchange within the meaning of Article 1702 of the Civil Code, the consumer remains the owner of the parts and it is up to the professional to ensure their return, except for the customer to refuse them;
Whereas in determining itself thus, whereas the clause, which leaves the consumer the choice to obtain the return of the part concerned and complies with the depositor’s obligation to assume the costs of this return, cannot be observed as abusive, the court of appeal violated the aforementioned text;
And whereas in application of article 627, paragraph 2, of the new code of civil procedure, the Court of Cassation is able, by setting aside without referral, to put an end to the dispute, by application of the appropriate rule of law;
FOR THESE REASONS :
BREAK AND CANCELED, but only in that it partially reversed the judgment ordering the deletion of Article 2, paragraph 3, and Article 10, paragraph 3, (extension of the warranty period), confirmed the judgment rejecting the request for deletion of article 9, paragraph 2, confirmed the judgment ordering the deletion of article 10, paragraph 3, (defective parts out of warranty), inserted in the general conditions of sale appearing on the order forms from Daimler Chrysler France, the judgment rendered on March 30, 2004, between the parties, by the Grenoble Court of Appeal;
DIT there to be referral;
DECLARES the clause stipulated in article 2, paragraph 3, the clause stipulated in article 9, paragraph 2, and the clause stipulated in article 10, paragraph 3, of the general conditions to be abusive; says, therefore, that they are deemed unwritten.
Declare that the clause stipulated in article 10, paragraph 3, (defective parts not covered by warranty) of the same general conditions is not abusive;
Orders the company Asly 38 and the company Daimler Chrysler France to pay the costs;
Considering article 700 of the new code of civil procedure, condemns, in solidum, the companies Daimler Chrysler France and Asly 38 to pay the sum of 2000 euros to the association UFC 38 – What to choose;
Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the partially overturned judgment;
Thus done and judged by the Court of Cassation, first civil chamber, and pronounced by the president in his public hearing on November 14, two thousand and six.
Publication: Bulletin 2006 IN ° 488 p. 420 Contested
decision: Grenoble Court of Appeal, 2004-03-30

Court of Cassation
Civil Chamber 1

Public hearing of November 14, 2006 Partial annulment without referral

N ° of appeal: 04-15645
Published in the bulletin

President: M. Ancel.
Rapporteur: M. Gallet.
First Advocate General: Ms. Petit.
Lawyers: SCP Masse-Dessen and Thouvenin (stop n ° 1, 2 and 3), SCP Célice, Blancpain and Soltner, SCP Thouin-Palat (stop n ° 1), SCP Gatineau (stop n ° 2 and 3).

FRENCH REPUBLIC

 

IN THE NAME OF THE FRENCH PEOPLE

Whereas the consumer association “UFC 38 – Que Choisir” has, on the basis of article L. 421-6 of the consumer code, brought an action against the companies Opel Porte de l’Ouest and Opel Majestic for deletion of clauses contained in order forms for new vehicles, usually offered by these concessionaires of the Opel brand, and in compensation for personal damage, known as associative damage, and damage to the collective interest of consumers; that the company General Motors France intervened in the proceeding;
On the third, fourth, fifth and sixth grounds of the main appeal of the association UFC 38 – What to choose:
Whereas the association UFC 38 – Que Choisir reproaches the judgment for having rejected its request for deletion of the clauses stipulated in articles 1, paragraph 1, (versions of 1995, 1998, 1999 and 2000), article 2, in fine, 6 a (1995 version) became 7 a (1998 and 1999 versions), 6 c (1995 version) became 7 c (1998 and 1999 versions), and 6 d (1995 version) became 7 d (1998 and 1999 versions) ) warranty clauses, while,
1 / selon le troisième moyen, d’une part, une clause est abusive lorsqu’elle est ambiguë, c’est-à-dire lorsqu’elle a pour objet ou pour effet de laisser croire au consommateur qu’il dispose de plus de droits qu’il n’en a ou, au contraire, de le priver de ses droits ; en constatant elle-même que la mention relative à la garantie légale des vices cachés était placée à la fin des conditions générales concernant la garantie contractuelle, circonstance de nature à entraîner, dans l’esprit de l’acheteur, une confusion sur l’étendue exacte de ses droits à garantie de la part du vendeur, tout en déclarant que la clause litigieuse ne contenait aucune équivoque sur la durée respective des deux types de garantie, omettant ainsi de tirer les conséquences légales de ses propres énonciations, la cour d’appel aurait violé les articles L. 132-1 et R. 211-4 du code de la consommation ; et, d’autre part, en se bornant à énoncer que tout défaut de matière ou de fabrication ne relevait pas nécessairement de la garantie légale des vices cachés dès lors que de tels défauts pouvaient être apparents, quand il ressortait pourtant de la clause relative à la garantie légale que celle-ci n’indiquait pas clairement à l’acheteur que cette garantie visait aussi les défauts de matière et de fabrication visés par la garantie contractuelle et que cette imprécision lui conférait un caractère abusif, la cour d’appel aurait violé les articles L. 132-1 et R. 211-4 du code de consommation ;
2 / according to the fourth plea, unfair clauses are those which allow the trader to inappropriately exclude the legal rights of the consumer in the event of partial or total non-performance or defective performance by the trader of any of his contractual obligations and that which allows the latter to suppress or hinder the exercise of legal actions or remedies by the consumer, in particular by unduly limiting the means of proof available to the latter; considering that UFC 38 Que Choose did not establish either that the delivery of the defective part was of interest to the consumer, or that the failure to deliver this part would deprive the latter of
3 / according to the fifth plea, abusive clauses constitute those which exclude the contractual guarantee of the automobile manufacturer in the event of normal use of the vehicle by the driver and that which, too imprecise or too ambiguous, has the object or the effect of depriving the consumer of his rights; by denying any abusive character to a clause which deprived the purchaser of the benefit of the contractual guarantee offered by the manufacturer for cases of ordinary external attacks independent of the action of a normally prudent motor vehicle driver and which, moreover , did not define exhaustively the hypotheses of external attacks exclusive of the contractual guarantee, the court of appeal would have violated Articles L.
4 / according to the sixth plea, is abusive the clause which limits or excludes the conventional guarantee (s) that a car manufacturer grants to its customer when the latter entrusts the routine maintenance or repairs of his vehicle to a professional independent of his network of exclusive dealers or official agents or obtains spare parts from it; by denying any unfair nature to the disputed clauses, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code;
maintained no ambiguity between the contractual guarantee and the legal guarantee and that the UFC 38 maintained, wrongly, that any defect in material or manufacture fell within the legal guarantee of hidden defects whereas these defects could be apparent, exactly deduced that the disputed clause was not abusive, little important that the stipulation mentioning clearly and without restriction the legal guarantee was placed at the end of the general conclusions; that having noted that the association had not provided proof of the consumer’s interest in keeping the defective part, that the transfer of ownership was a reasonable consideration for the guarantee provided and that it was not demonstrated that the failure to hand over the defective part to the consumer would deprive the latter of a means of proof in the event of a dispute, the judgment retains exactly that the clause according to which “the replaced parts become the property of Opel France”, which does not provide by itself no obstacle to the exercise of legal action, was not abusive; that the judgment which states that the clause, according to which “the (contractual) guarantee does not apply if the defect results from: a) the action of external mechanical or chemical phenomena (affecting for example the paint or the bodywork of the vehicle, such as chippings, rust fallout, industrial fallout, atmospheric agents, etc.),
a third party to its network or finding their cause in unapproved parts or in a modification not approved by it, has exactly deduced that the said clause was not abusive, the latter not being held liable for the harmful consequences attributable to the fact a third party for which he does not have to answer; that none of the grievances can be upheld;
And on the first and second grounds of the same appeal, as reproduced in the annex:
Whereas these means are not such as to allow the appeal to be admitted;
And on the first and second grounds of the cross-appeal from General Motors France:
Whereas the company General Motors France criticizes the judgment for having ordered the deletion of the clauses stipulated in articles 5.1 and 7 (versions 1995-1998-1999 and 2000) of its general conditions of sale, whereas:
1 / according to the first plea, on the one hand, the clause which gives the seller the right to terminate the contract concluded with a consumer, in the event of a shortage of stocks, does not have the nature of an exemption from liability of such that it cannot be qualified as abusive on the pretext that its object or effect would be to exempt the trader from compensating the damage suffered by the consumer as a result of the exercise of this right; indeed, the exercise of a right conferred by the contract which is not analyzed in a non-performance could not engage the responsibility of its author; in this case, by declaring abusive the clause authorizing the professional to cancel the order when the model ordered does not is no longer fabricated on the pretext that it would dissuade the consumer from taking legal action to obtain compensation for his damage, the court of appeal would have violated Article L. 132-1 of the Consumer Code; and, on the other hand, the clause conferring on the trader the right to unilaterally terminate the contract, for a valid reason specified in the contract, and on return of the deposit paid by the consumer, is not abusive; in this case, considering that article 5-1 of the general conditions authorizing the professional to cancel the order when the manufacture of the model object of the order has ceased since the date of the order, and obliging him, in such a case , to reimburse the buyer for the deposit received,
2 / according to the second means, the order form given to the buyer indicates on the first page the “general conditions of guarantee” which detail the contractual guarantee of Opel France, manufacturer of the vehicles ordered, and specify that “this contractual guarantee does not not deprive the non-professional or consumer retail purchaser of the legal guarantee against all the consequences of defects or hidden defects “; the same order form details “the general conditions of sale” and specifies in its article 7 that the concessionaire, and not the manufacturer, “is solely responsible vis-à-vis the buyer for all the commitments he subscribes to. with regard to the terms of the special conditions set out in this order form “;
thus, the order form clearly specifies that the consumer can demand from the manufacturer the commitments which he can expect from the concessionaire; by considering that the clause inserted in article 7 of the general conditions of sale “leads the consumer to believe that he is helpless towards the manufacturer when it cannot exempt the latter from the legal guarantee against hidden defects”, and that ” it thus constitutes an abusive clause, the Court of Appeal would have made an incomplete reading of the order form given by the concessionaire to the consumer and would thus have violated, in addition to Article 1134 of the Civil Code, Article L 132-1 of the Consumer Code;
such a clause creating, in these circumstances, a significant imbalance between the rights and obligations of the parties, to the detriment of the consumer; that the judgment which, for own and adopted reasons, retains that the clause, according to which “in no case is the dealer the agent or the agent of Opel France or Adam Opel AG; he is and remains solely responsible for to the buyer for all the commitments made by him “(versions 1995.1998 and 1999) and” the concessionaire is responsible to the buyer for all the commitments he has made to him under the terms of the general conditions set out in this order form “(version 2000), led the consumer to believe that he was powerless to the manufacturer when it could not exempt the latter from the legal warranty against hidden defects, and which orders the removal, is legally justified, the general wording of this stipulation, which suggests that the manufacturer could not incur no liability, making it abusive; that none of the means is founded;
But on the seventh plea of ​​the main appeal of the association UFC 38 – What to choose:
Considering article 1154 of the civil code;Whereas, to reject the association UFC 38 – What to choose from its request for the capitalization of the interest produced by the damages which had been awarded to it at first instance, with provisional execution, the judgment states that, as regards the compensation for damages, assessed at the time when the court of appeal rules, there is no need to capitalize the interest which is analyzed in a request for additional compensation;

Whereas in being determined thus, while the aforementioned text does not require that, in order to produce interest, the accrued interest on the capital is due at least for a whole year at the time when the judge rules, but only requires that the capitalization either ordered under the conditions set by the aforementioned article, the court of appeal violated it;And whereas in application of article 627, paragraph 2, of the new code of civil procedure, the Court of Cassation is able, by setting aside without referral, to put an end to the dispute, by application of the appropriate rule of law;

FOR THESE REASONS :
BREAK AND CANCELED, but only in that he rejected the association UFC 38 – What to choose from his request for capitalization, the judgment rendered on March 16, 2004, between the parties, by the Grenoble Court of Appeal;
DIT there to be referral;
ORDERS the capitalization of interest relating to compensation allocated to the association UFC 38 – What to choose and expired for at least one full year, under the conditions provided for in article 1154 of the civil code;
Orders the companies Opel Porte de l’Ouest, Opel Majestic and General Motors France to pay the costs in solidum;
Considering article 700 of the new code of civil procedure, rejects the requests of the companies Opel Porte de l’Ouest, Opel Majestic and General Motors France; condemns them in solidum to pay the sum of 2 000 euros to the association UFC 38 – What to choose;
Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the partially overturned judgment;
Thus done and judged by the Court of Cassation, first civil chamber, and pronounced by the president in his public hearing on November 14, two thousand and six.
Publication: Bulletin 2006 IN ° 489 p. 424 Contested
decision: Grenoble Court of Appeal, 2004-03-16
Precedents in case law: On n ° 1: On the definition of unfair terms, in the same sense as: Opinion of the Cour de cassation, 2006-07-10 , Bulletin 2006, Opinion, n ° 6, p. 9. On n ° 2: To be reconciled: Civil Chamber 3, 1995-03-08, Bulletin 1995, III, n ° 77, p. 52 (rejection); Civil Chamber 3, 1998-02-18, Bulletin 1998, III, n ° 42, p. 29 (partial cassation), and the judgments cited.

Court of Cassation
Civil Chamber 1

Public hearing of November 14, 2006 Partial annulment without referral

N ° of appeal: 04-15890
Published in the bulletin
President: M. Ancel.
Rapporteur: M. Gallet.
First Advocate General: Ms. Petit.
Lawyers: SCP Masse-Dessen and Thouvenin (stop n ° 1, 2 and 3), SCP Célice, Blancpain and Soltner, SCP Thouin-Palat (stop n ° 1), SCP Gatineau (stop n ° 2 and 3).

FRENCH REPUBLIC

 

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE
THE COURT OF CASSATION, FIRST CIVIL CHAMBER, delivered the following judgment:
Whereas the association of consumers “UFC 38 – Que Choisir” has, on the basis of article L. 421-6 of the consumer code, brought against the company Isère distribution automobiles, which called in guarantee the company Automobiles Citroën, an action to remove clauses contained in order forms for new vehicles, usually offered in the usual way by this car manufacturer and by the dealers of its distribution network, and in compensation for his personal injury, known as associative, and of the damage to the collective interest of consumers;On the first, second, third, sixth, seventh, ninth, tenth, eleventh and thirteenth means:

Whereas UFC 38 reproaches the judgment for having rejected its request to delete the questionnaire and the clauses stipulated in articles II 6 (1995 version) and II 3 (2000 version), III 2 (1995 version) and III 3 (2000 version), III 4, V 4 (1995 version), VIII 3, XI 6 (1995 version and X 6 (2000 version), XI 7 (1995 version) and X 7 (2000 version), XI 8 ( 1995 version) and X 4 (anti-corrosion warranty – 2000 version) and 8 of the anti-corrosion warranty, then:
1 / according to the first plea, by not responding to the nonetheless decisive conclusions of UFC 38 Que Choisir according to which it was not established that, since their summons at first instance, the seller and the builder had not continued to submit the order form to customers in its 1995 version and by not expressly refuting the reasons of the first judges who had ruled in this direction, the Court of Appeal disregarded the requirements of Article 455 of the new code of civil procedure;
2 / according to the second plea: that on the one hand, the contract for the sale of a motor vehicle takes a date, for the delivery of the latter and the seller’s obligation to guarantee the price for at least three months, on the day of the signing of the order form, and not of the payment of the deposit by the purchaser; by ruling as it did when, in its 1995 version, the disputed clause was unlawful to make the date of delivery and the starting point of the price guarantee period conditional on the payment of such a deposit, the court of appeal would have violated Article L. 114-1 of the Consumer Code and Articles 2, 3 and 5 of the Ministerial Decree of June 30, 1978 relating to the advertising of prices at the consumer consideration for passenger motor vehicles; and, on the other hand, that the payment of a deposit on order not being required by any provision of the Consumer Code, the disputed clause, in its 1995 and 2000 versions, was abusive in that it had the effect, in the event that the buyer had not paid such a deposit, to allow the seller to postpone the delivery date beyond that contractually foreseen by the parties and, thus, to escape his obligation to guarantee the price for at least three months from the signing of the purchase order; by stating the contrary, the court of appeal would have violated article L. 132-1 of the consumer code, articles 2, 3 and 5 of the
3 / according to the third plea: that on the first hand, constitutes an unfair term that which grants the seller the right to increase the price without the consumer having the corresponding right to renounce the sale in the event that the final price is too high compared to the price initially agreed, the increase in price should it result from technical modifications imposed by the public authorities; by ruling as it did when it was explicitly clear from the disputed clause that it did not provide for such a right in favor of the purchaser, the court of appeal infringed I of the appendix to article L. 132-1 of the Consumer Code; second part, noting that any reference to 132-1 of the Consumer Code; third, by stating that the trial judge had not explained himself as to what the characteristics of the vehicle other than its model could be when, on the contrary, it was clear from the reasons for the judgment undertaken that “the characteristics other than the model “referred to by him were the price of the vehicle, the Court of Appeal would have distorted the first instance decision in violation of Article 1134 of the Civil Code;
4 / according to the fourth plea: by not responding to the nonetheless decisive conclusions of UFC 38 Que Choisir according to which the disputed clause was abusive in that, without providing for any compensation in this regard, it left the consumer no other choice than to accept a new price or to support the termination of the contract even though there was a legitimate reason for not being able to take delivery of the vehicle, even with a delay of a few days, on the date initially agreed, the court of the appeal allegedly disregarded the requirements of article 455 of the new code of civil procedure;
5 / according to the sixth plea: that the seller can register his pledge without having to complete the administrative process of requesting a registration certificate himself; by declaring the contrary, the court of appeal would have violated article L. 132-1 of the consumer code, together article 2074 of the civil code and articles 1, paragraph 1, 2 and 5 of decree no.53 -968 of September 30, 1953 relating to the sale of motor vehicles;
6 / according to the seventh plea: on the one hand, what constitutes an unfair term one which provides for a firm commitment by the consumer, when, on the contrary, the performance of the professional’s services is subject to a condition the fulfillment of which depends solely on his will;
it follows that in the event of cancellation of the order by the purchaser of a motor vehicle, the parts must be replaced in the state in which they were before the conclusion of the sale; by denying any abusive character to the clause providing, in the event of cancellation of the order, the reimbursement to the purchaser of the only trade-in value of his used vehicle, and not that of the real value at which the professional l ‘resold of its own accord before the cancellation of the order, thus obtaining a profit preventing the parties from being replaced in the state they were in before the conclusion of the contract, the court of appeal would have violated the c of the appendix to article L. 132-1 of the consumer code; and, on the other hand, a clause is abusive when it is imprecise or ambiguous, that is to say when its object or effect is to deprive the consumer of his rights; by ruling as it did, when it appeared from the content of the disputed clause that, by its very imprecision and ambiguity, it allowed the seller, beyond his costs of managing and repairing the vehicle to occasion, to keep the added value generated by the resale of this vehicle, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code;7 / selon le neuvième moyen : que constituent des clauses abusives celle qui permet au professionnel d’exclure de façon inapproppriée les droits légaux du consommateur en cas d’inexécution partielle ou totale ou d’exécution défectueuse par le professionnel de l’une quelconque de ses obligations contractuelles et celle qui lui permet de supprimer ou d’entraver l’exercice d’actions en justice ou de voies de recours par le consommateur, notamment en limitant indûment les moyens de preuve à la disposition de celui-ci ; en considérant que l’UFC Que Choisir n’établissait pas que la remise de la pièce défectueuse présentait un intérêt pour le consommateur, ni que l’absence de remise de cette pièce priverait celui-ci d’un moyen de preuve en cas litige quand il ressortait au contraire clairement de la clause litigieuse que celle-ci ne prévoyait pas la remise à l’acheteur d’un quelconque document attestant de la défectuosité de la pièce, et en se référant, de manière radicalement inopérante, tant à la circonstance que le transfert de propriété de la pièce défectueuse était la contrepartie de la garantie fournie par le constructeur qu’à la responsabilité encourue par le constructeur sur le fondement des dispositions de l’article 1386-1 du code civil, la cour d’appel aurait violé les b et q de l’annexe à l’article L. 132-1 du code de la consommation et l’article R. 132-1 du même code ;

8 / according to the tenth plea: that the disputed clause was abusive by its very imprecision and ambiguity, insofar as it stipulated at the same time that the contractual guarantee was never extended, but that, like the anti -corrosion, it could be if the vehicle was immobilized for more than seven days; moreover, it led the purchaser to believe that the contractual guarantee was never extended in the event of exchange of a part or repair of the vehicle; by denying it any abusive nature, and by determining moreover by an inoperative reason based on the fact that the customer retained the benefit of the legal guarantee against hidden defects, the court of appeal would have violated article L.
9 / according to the eleventh plea: that constitute abusive clauses the one which excludes the contractual guarantee of the automobile manufacturer in the event of normal use of the vehicle by the driver and that which, too general, too imprecise or too ambiguous, has for object or for the effect of depriving him of his consumer rights; by denying such a character to a stipulation which deprived the purchaser of the benefit of the contractual guarantee in the event of ordinary external attacks, which, moreover, implied that the manufacturer manufactured and sold vehicles unfit for normal use and which, lastly, excluded from the contractual guarantee all traffic accidents without limiting this exclusion to those occurring without damage being blamed,
10 / according to the thirteenth plea: that by considering as sufficiently clear such a clause which stipulated at the same time that the contractual guarantee against corrosion was never extended, but that it could be in the event of immobilization of the vehicle for more than seven days and which thus, by its very ambiguity and imprecision, was abusive, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code;
But given that the Court of Appeal having ordered the deletion of the disputed questionnaire appearing in the version of 1995, UFC 38 is not admissible, for lack of interest, to invoke a lack of response to conclusions tending to the same end; that the judgment which retains that the clause, according to which “the orders take date, for the delivery and the price guarantee, only after payment by the customer of a deposit”, left the consumer master of the payment of his deposit to set the date of his order and was not contrary to the provisions of Article L. 114-1 of the Consumer Code as long as the contract included the deadline by which the professional undertook to deliver the vehicle, deduces, rightly, that this clause was not abusive, the parts being free to subordinate the conclusion of the order to the payment of a deposit; that, on the one hand, it does not appear from the documents in the proceedings that UFC 38 had criticized the clause allowing the seller to increase the price following technical or fiscal changes, on the other hand, the judgment shows that the deletion of the reference to the model year, in the 2000 version, without affecting the seller’s obligation to guarantee the price of the model ordered, was in accordance with the evolution of the regulations, and, third on the one hand, the criticism of the means attacks an overabundant motive; the parties being free to make the conclusion of the order conditional on the payment of a deposit; that, on the one hand, it does not appear from the documents in the proceedings that UFC 38 had criticized the clause allowing the seller to increase the price following technical or fiscal changes, on the other hand, the judgment shows that the deletion of the reference to the model year, in the 2000 version, without affecting the seller’s obligation to guarantee the price of the model ordered, was in accordance with the evolution of the regulations, and, third on the one hand, the criticism of the means attacks an overabundant motive; the parties being free to make the conclusion of the order conditional on the payment of a deposit; that, on the one hand, it does not appear from the documents in the proceedings that UFC 38 had criticized the clause allowing the seller to increase the price following technical or fiscal changes, on the other hand, the judgment shows that the deletion of the reference to the model year, in the 2000 version, without affecting the seller’s obligation to guarantee the price of the model ordered, was in accordance with the evolution of the regulations, and, third on the one hand, the criticism of the means attacks an overabundant motive;
that, with regard to the clause which provided that “the customer undertakes, in the event of payment by means of a credit, to entrust the selling establishment with the registration of the vehicle”, the trial judges, who have stated that the fact of carrying out this administrative procedure personally could not be considered as a right for the consumer, who was released from it, and that the seller could thus register his pledge, have rightly considered that this clause does not was not abusive; that the judgment, which, for own and adopted reasons, states that, the recovery price having been determined by the agreement of the parties, the profit that the professional can derive from the resale is the counterpart of the costs and risks to which he is exposed , and that’ whose resale price does not depend solely on the will of the reseller; that having noted that the association had not provided proof of the consumer’s interest in keeping the defective part, that the transfer of ownership was a reasonable consideration for the guarantee provided and that it was not demonstrated that the absence of delivery of the defective part to the consumer would deprive the latter of a means of proof in the event of a dispute, the judgment retains exactly that the clause according to which “if the contractual guarantee is accepted, the defective part becomes the property of the constructor “, which in itself does not impede the exercise of legal action, was not abusive; that in
legitimately excludes the manufacturer’s warranty when the damage originates from a cause external to the thing guaranteed and does not call into question the principle of the guarantee of a defect inherent in the thing, is legally justified, such a clause aimed at causes of damage unrelated to, unless proven otherwise, the manufacturer’s obligation to deliver a vehicle free from defects and in conformity with the use for which it is intended; that none of the grievances can be upheld; unless proven otherwise, the manufacturer’s obligation to deliver a vehicle free from defects and in conformity with the use for which it is intended; that none of the grievances can be upheld; unless proven otherwise, the manufacturer’s obligation to deliver a vehicle free from defects and in conformity with the use for which it is intended; that none of the grievances can be upheld;
And on the fourth way:
Whereas this means is not likely to allow the admission of the appeal;But on the fifth plea, taken in its first two branches:

Having regard to article L. 132-1 of the consumer code and point d) of the appendix to said code;
Whereas to deny the abusive nature of the clause according to which “in the case of a sale on credit, the deposit paid will remain acquired by the seller as compensation if the customer withdraws after expiry of the withdrawal period from which he benefits , unless it is in one of the cases provided for in Article XI below “, the judgment holds, for its own and adopted reasons, that, having regard to the stipulation which provided for the possibility for the customer, in cases where he could cancel his order, to obtain the return of the deposit, plus interest at the legal rate, “without prejudice to any other rights that the customer could assert”, the cancellation penalty for the customer was limited to the loss of thedeposit while that which could be charged to the professional, beyond the return of this deposit, did not include any contractual limit and fell under common law;
That by being so determined, while the disputed clause, the object or effect of which is to allow the professional to automatically withhold sums paid by the consumer when the latter renounces to perform the contract, without providing for the same right, for this consumer, to receive compensation of an equivalent amount from the professional when it is the latter who waives it, forcing the consumer to seek legal redress and thus creating an imbalance between the rights and obligations of the parties to the dispute. to the detriment of the latter, as stated by the Unfair Terms Commission in its recommendations n ° 91-02 and 04-02, in that it punishes more heavily the non-performance of the consumer than that of the professional,was to be regarded as abusive, the court of appeal violated the aforementioned provisions;And on the eighth plea:

Having regard to article L. 132-1 of the consumer code and point d) of the appendix to said code;Whereas to reject the request for deletion of the clause providing that “when the period provided for on the order form has elapsed, the customer is required to take delivery of the vehicle within the fifteen days following the provision; after this period, and a formal notice by the seller having remained unsuccessful, the latter will have the right to terminate the order and dispose of the vehicle, the deposit remaining acquired as compensation “, the judgment retains that the customer, having signed a purchase order and benefiting from a price guarantee within three months, is held, except in cases of force majeure, the obligation to pay this price and to take delivery,so that the right of termination would not constitute an unjustified advantage for the seller;

Whereas by being determined thus, whereas, having noted, moreover, that the buyer could cancel his order and obtain the reimbursement of the deposit paid, increased by legal interest, if the vehicle was not placed in his provision within the agreed timeframe, without prejudice to any other rights that he could assert, the result was that the disputed clause, the object or effect of which was to allow the trader to automatically withhold sums paid by the consumer when the latter -ci waives to perform the contract, without providing the same right, for this consumer, to receive compensation of an equivalent amount from the trader when it is the latter who waives it,forcing the consumer to seek legal redress and thus creating an imbalance between the rights and obligations of the parties to the detriment of the latter, as stated by the Unfair Terms Commission in its recommendations n ° 91-02 and 04-02, in that it punishes more heavily the non-performance of the consumer than that of the professional, had to be regarded as abusive, the court of appeal violated the aforementioned provisions;was to be regarded as abusive, the court of appeal violated the aforementioned provisions;was to be regarded as abusive, the court of appeal violated the aforementioned provisions;
And on the twelfth plea:
Considering article L. 132-1 of the consumer code;
Whereas to deny the abusive nature of the clause according to which “to continue to benefit from the Citroën anti-corrosion warranty, the user is required to have any damage due to the Citroën network repaired, within two months following the checks, external causes “, the judgment states that such a clause, which is justified by the safety of consumers and by the technical nature of the object, is not contrary to article 9 of recommendation n ° 79-01 of June 27, 1978 of the unfair terms commission and that it is not illegitimate that the professional is not contractually bound to guarantee the vehicle against corrosion if he has not been able toexercise control over the replaced parts and the treatment of materials following damage due to external causes;
That in being thus determined, whereas, having noted, moreover, that “the anti-corrosion guarantee did not cover the damage caused by an external cause: gravel, traffic accident, scratches, scratches or atmospheric or plant-based fallout or animal “, from which it resulted that the disputed clause, which, by its generality and by the establishment of an obligation of repair, with a member of the Citroën distribution network, of damages in any case not covered by the anti-corrosion warranty, had the sole purpose of forcing the customer to contact a repairer in this network and to exclude said warranty even in thethe hypothesis where the customer would claim it for damage normally covered and unrelated to minor repairs that he would have had carried out by an independent repairer, created a significant imbalance between the rights and obligations of the parties to the detriment of the consumer and, therefore, was abusive , little important that it is not contrary to a recommendation of the commission of abusive clauses, the court of appeal violated the aforementioned text;it is not contrary to a recommendation of the unfair terms commission, the court of appeal violated the aforementioned text;it is not contrary to a recommendation of the unfair terms commission, the court of appeal violated the aforementioned text;
And whereas in application of article 627, paragraph 2, of the new code of civil procedure, the Court of Cassation is able, by setting aside without referral, to put an end to the dispute, by application of the appropriate rule of law;
FOR THESE REASONS, and without there being any need to rule on the third part of the fifth plea:
BROKEN AND CANCELED, but only in that it rejected the request to delete the stipulations of articles IV 2 and IX 2 and of article 7 relating to the anti-corrosion guarantee of the general conditions of sale inserted in the vehicle order forms new products offered by Automobiles Citroën to consumers, the judgment rendered on February 10, 2004, between the parties, by the Grenoble Court of Appeal;
DIT there to be referral;
Declare the said clauses to be abusive; says, therefore, that they are deemed unwritten;
Orders the company Isère distribution automobiles and the company Automobiles Citroën to pay the costs;Considering article 700 of the new code of civil procedure, rejects the request of the company Automobiles Citroën; condemns her to pay the sum of 2,000 euros to the association UFC 38 Que Choisir;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the partially overturned judgment;
Thus done and judged by the Court of Cassation, first civil chamber, and pronounced by the president in his public hearing on November 14, two thousand and six.
Publication: Bulletin 2006 IN ° 489 p. 424 Contested
decision: Grenoble Court of Appeal, 2004-02-10
Precedents in case law: On n ° 1: On the definition of unfair terms, in the same sense as: Opinion of the Cour de cassation, 2006-07-10 , Bulletin 2006, Opinion, n ° 6, p. 9. On n ° 2: To be reconciled: Civil Chamber 3, 1995-03-08, Bulletin 1995, III, n ° 77, p. 52 (rejection); Civil Chamber 3, 1998-02-18, Bulletin 1998, III, n ° 42, p. 29 (partial cassation), and the judgments cited.

 

Court of Cassation
Civil Chamber 1

Public hearing of November 14, 2006 Partial annulment without referral

N ° of appeal: 04-17578
Published in the bulletin

President: M. Ancel.
Rapporteur: M. Gallet.
First Advocate General: Ms. Petit.
Lawyers: SCP Masse-Dessen and Thouvenin (stop n ° 1, 2 and 3), SCP Célice, Blancpain and Soltner, SCP Thouin-Palat (stop n ° 1), SCP Gatineau (stop n ° 2 and 3).

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE
THE COURT OF CASSATION, FIRST CIVIL CHAMBER, delivered the following judgment:
Whereas the association of consumers “UFC 38 – Que Choisir” has, on the basis of article L. 421-6 of the consumer code, brought against the company Peugeot an action for the removal of clauses contained in the coupons. ordering new vehicles, usually offered by this automobile manufacturer and by dealers in its distribution network, and in compensation for personal injury, known as associative damage, and damage to the collective interest of consumers;
On the fourth, sixth, ninth, tenth and eleventh means, combined, of the main appeal of UFC 38 – What to choose:
Whereas the association UFC 38 – Que Choisir reproaches the judgment for having rejected its request for the removal of the clauses stipulated in articles 3, paragraphs 2 and 7 of the general conditions and in paragraphs 17, 18, 22 and 30 ( 1999 version) and 6 (2001 version) of the contractual guarantee, while:
1 / according to the fourth plea, the seller can register his pledge without having to complete the administrative process of requesting a registration certificate himself, so that by ruling as it did, the court of appeal would have violated Article L. 132-1 of the Consumer Code, together Article 2074 of the Civil Code and Articles 1, paragraph 1, 2 and 5 of Decree No. 53-968 of September 30, 1953, as amended, relating to the sale of motor vehicles;
2 / according to the sixth plea, is necessarily abusive the clause which does not provide for the hypothesis where the buyer has a legitimate reason not to be able to take delivery of the vehicle within the agreed period and which, after this period, also allows the seller to freely dispose of the vehicle and impose on the purchaser a new completely indefinite delivery period, so that by ruling as it did, the court of appeal would have violated Article L. 132-1 of the consumer code;3 / according to the ninth plea, is abusive the clause which limits or excludes the conventional guarantee (s) that a car manufacturer grants to its customer when the latter entrusts the routine maintenance or repairs of his vehicle to a professional independent of his network of exclusive dealers or official agents, or supplies itself with spare parts outside the manufacturer’s commercial network, so that by denying any abusive nature to the disputed clause, the court of appeal would have violated Article L. 132-1 of the Consumer Code;

4 / according to the tenth plea, abusive clauses are those which allow the trader to inappropriately exclude the legal rights of the consumer in the event of partial or total non-performance or defective performance by the trader of any of his contractual obligations and that which authorizes it to suppress or hinder the exercise of legal actions or remedies by the consumer, in particular by unduly limiting the means of proof available to the latter; considering that UFC 38 – Que Choose established neither that the delivery of the defective part was of interest to the consumer, nor that the lack of delivery of this part would deprive the latter of a means of proof in the event litigation,
5 / according to the eleventh plea, unfair clauses are those which exclude the contractual guarantee of the automobile manufacturer in the event of normal use of the vehicle by the driver and that which, too imprecise or too ambiguous, has the purpose or the effect of depriving the consumer of his rights; by denying any abusive character to a clause which deprived the purchaser of the benefit of the contractual guarantee offered by the manufacturer for cases of ordinary external attacks, which the use of the terms “in particular” and “for example” made imprecise and which , finally, suggested that the manufacturer manufactured and sold vehicles unfit for normal use, the Court of Appeal violated Articles L. 132-1 and R.
But given that, with regard to the clause according to which “the customer must entrust the seller with the task of transmitting to the prefecture his request for a gray card in the event of a sale on credit”, UFC 38 – What to choose who, in front of the Court of Appeal, had only concluded that it was sufficient to give note of the final deletion of this stipulation in the new version of the general conditions, is not admissible to present a means contrary to its own writings; that the judgment retains, rightly, that the clause providing that “any customer notified of the provision of the vehicle ordered must take delivery within fifteen days; after this period, he will be charged garage costs, to less than exercising its control over the replaced parts and over the treatment of materials following damage due to external causes, has therefore rightly considered that the clause according to which “the anti-corrosion warranty does not cover … damage resulting from the repair of the bodywork (following an accident or not) outside the service points of the Peugeot sales network “, did not present any abusive character, this clause, which only excluded the manufacturer’s contractual guarantee for damage resulting from work for which the latter did not have to answer, without eliminating the free choice of an independent repairer of the distribution network, not creating any significant imbalance to the detriment of the consumer; that having noted that
a defect inherent in the thing, is legally justified, such a clause aimed at causes of damage unrelated, unless proven otherwise, to the manufacturer’s obligation to deliver a vehicle free from defect and in conformity with the use for which it is intended; that none of the grievances can be upheld;
And on the first, second, third, fourth and fifth pleas, together, of the cross-appeal by Automobiles Peugeot:
Whereas the company Automobiles Peugeot criticizes the judgment for having ordered the deletion of certain clauses of its order forms and for having ordered it to compensate the collective damage and the associative damage of the association UFC 38 – What to choose, while :
did not for its part attract the consumer’s attention sufficiently, so that by ruling in this way, it would not have drawn the consequences that evoked from its own findings in violation of Article L. 133-2 of the consumer code; and secondly, the clause by which the consumer declares to have read the contractual conditions appearing on the back of the document and to have accepted them does not create any significant imbalance between the rights and obligations of the parties once it is established that the consumer has indeed been put in possession of the said conditions and that they are legible; in this case, on page 2 of the order form, immediately preceding the space reserved for the client’s signature, appeared the clause under which “the customer declares to have read the special conditions applicable to orders subject to the consumer code articles L. 121-23 to L. 121-26 (door-to-door door-to-door sales) appearing on the back of this document and have received them as well as the order cancellation slip appearing on the customer copy “; by deciding that this clause, followed immediately by the client’s signature and referring to the conditions appearing on the back of the document, was abusive on the ineffective reason that it could lead the client to believe that his acceptance of the contractual conditions was total without reservation, including clauses that could be abusive, the court of appeal violated article L. 132-1 of the Consumer Code; and thirdly the clause by which the consumer declares to have taken note of the contractual conditions appearing on the back of the document and to have accepted them does not create any significant imbalance between the rights and obligations of the parties once it is established that the consumer has been in possession of said conditions and that they are legible; in this case, on page 2 of the order form, immediately preceding the space reserved for the signature of the customer, there was the clause under which “the customer declares to have taken cognizance of the special conditions applicable to orders subject to the code of the consumption articles L. 121-23 to L.
by deciding that this clause, followed immediately by the client’s signature and referring to the conditions appearing on the back of the document, was abusive on the ineffective reason that it could lead the client to believe that his acceptance of the contractual conditions was total without reservation, including clauses which could be abusive, the Court of Appeal would have violated Article L. 132-1 of the Consumer Code;
2 / according to the second means, the professional may contractually reserve the right to make changes to the characteristics of the goods to be delivered when these changes are linked to technical development, provided that this does not result in any increase in prices. no quality deterioration; in this case, the disputed clause reserved the constructor the right to make minor modifications according to technical development without providing that these modifications would be accompanied by a modification of the price; by deciding that this clause was abusive so as not to expressly provide that the modifications of the vehicle would intervene without modification of the price, when in the absence of modification of price expressly stipulated,
3 / according to the third plea, it follows from the own findings of the judgment under appeal that Article 8 of the general conditions referred to the “Peugeot contractual guarantee” and that this contractual guarantee expressly provided in its first paragraph that it was added the legal guarantees owed by the manufacturer; considering nevertheless that article 3 of the general conditions of sale by virtue of which it was only mentioned that “the dealers are not the representatives of the manufacturer and are solely responsible towards their customers for all commitments made by them” , and not that the dealers are solely legally responsible towards their customers, to the exclusion of the manufacturer,
4 / according to the fourth plea, the professional, who is under no obligation to provide the customer with a contractual guarantee in addition to the legal guarantees, covering all the defects affecting the vehicle delivered for one year, is legitimately in the right to limit this warranty to only defects under its control, making the benefit of the warranty subject to the condition that the vehicle undergoes any repair and overhaul by a dealer in the network during the warranty period; that by considering that by thus conditioning the benefit of the guarantee, the professional obtained a significant advantage, when he
5 / according to the fifth plea, the professional, who is under no obligation to provide the customer with a contractual guarantee in addition to the legal guarantees, covering all the defects affecting the vehicle delivered for one year, is legitimately in the right to limit this warranty to only defects over which it has control, making the benefit of the warranty conditional on all parts and accessories fitted to the vehicle being approved by the manufacturer during the warranty period; by considering that by conditioning the benefit of the warranty in this way, the professional obtained a significant advantage, when it is only a question of limiting the scope of his vehicle warranty to only faults over which he has control,
But given that, having sovereignly considered that, by comparison with the preceding headings and not in relation to the general and specific conditions appearing on the back, the disputed clause was drafted in small characters the size of which was smaller than that of the other neighboring clauses and, from then, the court of appeal could not attract the client’s attention, which thus demonstrated that this clause did not meet the requirements of Article L. 133-2, paragraph 1, of the Code of consumption, has, rightly, ordered the suppression, as being abusive, so that, ill-founded in its first branch, the first ground is ineffective in its two following ones; that having noted that the clause, according to which the builder “reserved he had to undergo the possible prejudicial effects of these modifications, thus creating an imbalance between the rights and obligations of the parts, which does not stop the stipulation of the faculty for the consumer, layman unfit to anticipate such technical modifications, to cancel his order if the seller could not deliver a vehicle with the particular characteristics specified in the order, the Court of Appeal ordered its removal exactly; that the judgment which, for own and adopted reasons, retains that the clause, according to which “the dealers or their agents are not the representatives of the manufacturers; they are solely responsible vis-à-vis their customers for all commitments made by them”,
address exclusively to a representative of the mark for ordinary services, not requiring a particular technicality and not calling into question the safety, the court of appeal has, rightly, regarded them as abusive, such clauses having for object and the effect, because of the generality of their formulation, to exempt the manufacturer from its contractual guarantee even though the failure or defect of the vehicle for which the consumer would claim this guarantee is unrelated to the work carried out or the parts and accessories installed by a repairer independent of the distribution network, thus creating an imbalance between the rights and obligations of the parties, to the detriment of the consumer; that
And on the first, second, in the first branch, and eighth grounds of the main appeal of UFC 38 – What to choose, as reproduced in the appendix:
Whereas these means are not such as to allow the appeal to be admitted;
But, on the second plea, taken in its second branch, of the main appeal of the association UFC 38 – What to choose:
Having regard to article L. 132-1 of the consumer code and point l of the appendix to said code;
buyer, until it is made available, except: if the buyer has expressly agreed to refuse delivery within three months; if the price variation results from technical or fiscal changes imposed by the public authorities; if the delay in delivery results from a case of force majeure … This price guarantee only applies to the model mentioned on the order form “(2001 version), the judgment retains, on the one hand, that, as provided for in Article 3 of the Decree of June 30, 1978, the clause specifies that the seller can only be exempt from this price guarantee if a price change is made necessary by technical changes resulting from the ” application of regulations imposed by public authorities and,Whereas by determining thus when, on the one hand, article 9 of the general conditions excluded the possibility for the customer to terminate the contract when the tariff in force on the day of the provision, even if it occurred at- beyond the three-month period, was higher than the price in force at the time of the order in the event that the price variation resulted from a modification of the tax regime or a technical modification imposed by the public authorities, and when, of on the other hand, without there being any need to distinguish between the causes of the price increase, the object and effect of the disputed clause was to grant the builder the right toexempt from the price guarantee without the consumer having the corresponding right to terminate the contract, except for losing the amount of the deposit paid, in the event that the final price is too high compared to the price agreed upon when ordering, creating thus a significant imbalance between the rights and obligations of the parties, to the detriment of the consumer, the court of appeal violated the aforementioned provisions;

And on the third ground of the same appeal:
Considering article L. 132-1 of the consumer code;
Whereas, to reject the request for deletion of the clause according to which “the benefit of the order is personal to the customer:
it cannot be assigned “, the judgment holds that this is only the application of the fundamental principles of civil law, the concessionaire being entitled to require the performance of the contract by the party who signed it, and that the conditions of acquisition of a vehicle and, in particular, the price, are determined according, in particular, to the personal situation of the purchaser;
Whereas by determining itself thus, while this clause, which has for object and for effect to prevent any substitution of contracting party or transfer of the contract and therefore to maintain the customer in the contractual links, even though his personal situation could suddenly change and make the acquisition of the vehicle inappropriate and even when the substitution or transfer could take place under the conditions initially agreed, subject to the manufacturer’s legitimate refusal to consent, in particular because of a consideration specific to this customer, it being noted that, moreover, the seller himself reserves the possibility of substituting for another customer when the initial purchaser does nothas not taken delivery of the vehicle within fifteen days of notification of the provision, causes a significant imbalance between the parties to the detriment of the consumer, the court of appeal violated the aforementioned text;
And on the fifth and seventh pleas, together, the latter not being new:
Having regard to article L. 132-1 of the consumer code and point d) of the appendix to said code;
Whereas, to deny the abusive nature of the clause according to which “the deposit paid on the order will remain acquired by the seller as compensation, in the event of cancellation of the order (cash sale) or when the customer is withdrawal after expiry of the withdrawal period (sale on credit), unless it is in one of the three cases provided for in article 9 “and that according to which” the seller, for his part, may cancel the order and keep the deposit as compensation, from the day of payment of the deposit, if within the period of fifteen days provided for in article 7, the customer has not taken delivery of the vehicle or, failing that, paid its price “, the judgment retains, on the one hand,that the cancellation penalty for the customer is limited to the loss of the deposit while in the event of termination for default of delivery, the consumer can demand the reimbursement of the payments already made, plus interest at the legal rate at from the first day following the expiration of the delivery period, and, on the other hand, that once the customer has signed an order form and benefits from a price guarantee within the three-month period , he has taken on an obligation to pay the price but also that of taking delivery, and, unless it can be established that he would be prevented from fulfilling his obligations due to a case of force majeure, it does not appear that the right to termination by the seller, after formal notice,may constitute an unjustified advantage for this professional;Whereas by being so determined, whereas article 9 of the contract provides, in the specified cases of a breach of the professional’s contractual commitments, that the reimbursement for the benefit of the consumer, of the payments made, plus interest on legal rate, so that the disputed clause, the object or effect of which is to allow the trader to withhold sums paid by the consumer when the latter renounces to perform the contract, without providing for the right, for this consumer, to collect compensation of an equivalent amount from the trader when it is the latter who waives it, thus creating an imbalance between the rights and obligations of the parties to the detriment of the consumer, such asstated the unfair terms commission in its recommendations n ° 91-02 and 04-02, in that it punishes more heavily the non-performance of the consumer than that of the professional, must be regarded as abusive, the court of appeal has violated the aforementioned provisions;

And on the twelfth plea:

Considering article 1154 of the civil code;
Whereas, to reject the association UFC 38 – What to choose from its request for the capitalization of the interest produced by the damages which had been awarded to it at first instance, with provisional execution, the judgment states that, as regards the compensation for damages, assessed at the time when the court of appeal rules, there is no need to capitalize the interest;
Whereas in being determined thus, while the aforementioned text does not require that, in order to produce interest, the accrued interest on the capital is due at least for a whole year at the time when the judge rules, but only requires that the capitalization either ordered under the conditions set by the aforementioned article, the court of appeal violated it;
And whereas in application of article 627, paragraph 2, of the new code of civil procedure, the Court of Cassation is able, by setting aside without referral, to put an end to the dispute, by application of the appropriate rule of law;
FOR THESE REASONS :
BREAK AND CANCELED, but only in that it partially reversed the judgment ordering the deletion of article 2, article 3, paragraph 2, and articles 6 and 9 in fine of the general conditions of sale inserted in the order forms for new vehicles offered by Automobiles Peugeot to consumers, and dismissed the association UFC 38 – Que Choisir from its request for capitalization, as well as in that it confirmed the judgment ordering the removal of Article 1-Models, paragraph 2, sentence 2, of the same general conditions, the judgment rendered on June 1, 2004, between the parties, by the Grenoble Court of Appeal;
DIT there to be referral;
DECLARES the clause stipulated in article 2 to be abusive, unless it is specified that the consumer has the corresponding right to terminate the contract in the event that the final price is too high compared to the price agreed upon when ordering, the clause stipulated in article 3, paragraph 2, and those stipulated in articles 6 and 9 in fine of the general conditions; says, therefore, that they are deemed unwritten;ORDERS the capitalization of interest relating to compensation allocated to the association UFC 38 – What to choose and expired for at least one full year, under the conditions provided for in article 1154 of the civil code;

Orders the company Automobiles Peugeot to pay the costs;
Considering article 700 of the new code of civil procedure, the company Automobiles Peugeot rejects its request; condemns her to pay the sum of 2,000 euros to the association UFC 38 – What to choose;Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the partially overturned judgment;

Thus done and judged by the Court of Cassation, first civil chamber, and pronounced by the president in his public hearing on November 14, two thousand and six.
Publication: Bulletin 2006 IN ° 489 p. 424 Contested
decision: Grenoble Court of Appeal, 2004-06-01
Case law precedents: On n ° 1: On the definition of unfair terms, in the same sense as: Opinion of the Court of Cassation, 2006-07-10, Bulletin 2006, Opinion, n ° 6, p. 9. On n ° 2: To be reconciled: Civil Chamber 3, 1995-03-08, Bulletin 1995, III, n ° 77, p. 52 (rejection); Civil Chamber 3, 1998-02-18, Bulletin 1998, III, n ° 42, p. 29 (partial cassation), and the judgments cited.

 

Court of Cassation
Civil Chamber 1

Public hearing of July 5, 2005 Rejection

Appeal number: 04-10779
Unpublished
President: M. ANCEL

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE
THE COURT OF CASSATION, FIRST CIVIL CHAMBER, delivered the following judgment:Whereas the Federal Union of Consumers of Isère, (UFC 38), requested the deletion in the standard sales contracts offered by the company Gauduel, dealer of the Ford France brand, of eleven clauses of the general conditions of sale inserted in motor vehicle order forms on the basis of the provisions of Articles L. 421-1 to L. 421-7 of the Consumer Code; that three of the contested clauses were declared abusive in application of the provisions of Article L. 132-1 of the Consumer Code in its drafting resulting from the law of February 1, 1995;

On the first plea:

Whereas UFC 38 accuses the judgment under appeal (Grenoble, September 8, 2003) of having violated the k of the appendix to article L. 132-1 of the Consumer Code and article R. 132-1 of the same Code by rejecting the association of its request to have the clause appearing in article 1-2 of the general conditions of sale declared abusive, according to which: “the customer agrees to have the characteristics of the vehicle modified unilaterally without change in price as soon as, without affecting the quality of the vehicle, the modification results from a technical development (Decree n ° 78-464 of March 24, 1978) “whereas an abusive clause constitutes an unfair clause which does not mention that, after the conclusion of the contractof sale, a modification linked to technical development cannot be opposed to the purchaser of a motor vehicle without a valid reason expressly specified in the contract ;

But given that the Court of Appeal which notes for reasons adopted that article 1-1 of the contract expressly stipulated that the customer was informed of the essential characteristics of the vehicle and would indicate, if necessary, in the line “observations” those to which he subordinated commitment and the good of command actually included in the space reserved for the designation of the vehicle, a line “comments” allowing the customer to define, if so, what were for him the essential characteristics of the vehicle, so that this clause which reserved for the customer the right not to follow up the contract if the modification made to the characteristics of the vehicle related to one of those which he would have considered decisive for his consent, did not create any significant imbalance between the rights and obligations of the parties, and, for specific reasons, that the concept of evolution technique necessarily aimed at improving the product went in the direction of the interests of the consumer who benefited without change in price and for an equal vehicle quality from a technical improvement, deduced from this exactly that the clause, in accordance with the provisions of the article R. 132-2 of the Consumer Code was not abusive;

On the second plea, taken in its two branches:
Whereas UFC 38 accuses the judgment under appeal of having rejected the association of its request for one of the clauses of the general conditions of sale (article 6-1), inserted in the order forms, to be declared abusive. and according to which: “if the present order mentions the recovery by the company (seller) of a used vehicle, this recovery is subject to the delivery of the new vehicle, the cancellation of the order cancels the take-back obligation . In the event that the vehicle has been taken back by the company (seller) before this cancellation, (…) if the vehicle has been resold, the price returned to the customer will be the final agreed recovery price “, then, according to the way :
1 / that article 6-1 does not provide in any way that the purchaser agrees to the resale of his used vehicle, even in the event of a possible cancellation of the main sales contract , the court of appeal would have distorted the said clause in violation of article 1134 of the Civil Code by asserting the contrary;
2 / that, pursuant to c of the appendix to article L. 132-1 of the Consumer Code, is abusive, the clause which provides for a firm commitment by the consumer when, on the contrary, the performance of the professional’s services is subject to a condition the fulfillment of which depends solely on its will; that this is the case with the clause providing in the event of cancellation of the order by the purchaser of a motor vehicle, the reimbursement to the purchaser of the only trade-in value of his used vehicle and not that of the real value at which the trader resold it on his own initiative before the cancellation of the order, thus obtaining a profit preventing the parts from being placed back in the conclusion of the contract ;But given that the Court of Appeal which holds for reasons adopted that this clause was intended to regulate the consequences of the cancellation of the main contract of sale when this was accompanied by the repossession of the used vehicle of the purchaser and that this vehicle had been resold before the cancellation of the contract , identical restitution being impossible, by providing that this restitution could only correspond to the value of the property to be returned as the parties had agreed with knowledge of a possible cancellation of the contractprincipal and that the profit that the trader could derive from the resale did not constitute an excessive advantage since he was the counterpart of the costs and risks to which he was exposed during this operation, so that the said clause did not entail no imbalance to the detriment of the consumer who perceived exactly what had been agreed in the contract , deduced from it exactly, without committing the alleged distortion, that the disputed clause did not present an abusive character;

On the third plea:
Whereas the UFC 38 accuses the judgment under appeal for having rejected its request to have it declared abusive in application of the provisions of Articles L. 132-1 and R. 211-4 of the Consumer Code, the clause inserted in article 8-1-1, 1st of the general conditions of sale appearing in the order forms according to which: “Ford France Automobiles SAS guarantees that if any part of a vehicle purchased shows a failure due to a defect of material or workmanship for a period of twelve months from the actual delivery, this part would be repaired or reconditioned at the factory or replaced free of charge by any of the Ford dealers or official agents of the European Union “, whereasit emerged from the reconciliation of this article with article 8-1 that these two clauses were in reality aimed at the only legal guarantee against hidden defects, guarantee covering defects resulting from a defect in material or manufacture within the meaning of article 8-1-1 1st, which was likely to cause confusion in the mind of the consumer on the exact extent of his warranty rights on the part of the seller;consumer confusion over the exact extent of his warranty rights on the part of the seller;consumer confusion over the exact extent of his warranty rights on the part of the seller;
But given that the Court of Appeal noted for reasons adopted that article 8-1 of the general conditions which clearly stipulates that the warranty conditions granted by the manufacturer “did not subsist in the legal warranty against the consequences of defects or vices hidden “, while article 8-1,1er set out the scope and geographical extent of the conventional guarantee granted so that the distinction between legal and conventional guarantees was thus perfectly materialized and of such a nature as to fairly enlighten the consumer on their separate and combined stake, exactly deduced that the disputed clause which met the requirements of Article R. 211-4 of the Consumer Code, was not abusive;
The fourth plea:
Whereas UFC 38 reproaches the judgment under appeal for having rejected its request for declaring illegal or abusive two clauses of the general conditions of sale inserted in articles 8-1-1, 2e and 8-1-2 , 6th according to which:
article 8-1-1, 2e: “However, the following are not covered: indirect damage, fire when it is due to an undetermined cause, failures resulting from simple wear or the assembly of parts not manufactured or not approved by Ford. The vehicle must not have been neglected, misused, modified, used in racing or rallying and the loaded weights must not be exceeded. The vehicle must have undergone in the network of Ford dealers and official agents all the Ford maintenance operations service given to the purchaser upon delivery of the vehicle. Such maintenance in the Ford network allows the control of the essential elements of the vehicle. If the maintenance has been carried out outside the network of dealers or official agents Ford,the buyer must provide proof that the failure is not due to maintenance not in accordance with Ford standards or to a fault in control “;
any deterioration of the anticorrosion protection of the bodywork or of the underbody resulting from poor maintenance, or following external damage must be repaired at the owner’s expense as soon as possible; the damaged body or underbody parts will have been repaired in view of the guarantee of the part considered according to Ford specifications and with Ford or Motocraft parts “;whereas the clause which limits or excludes the conventional warranty that an automobile manufacturer grants to its customer is abusive when the latter entrusts the routine maintenance or repairs of its vehicle to an independent professional from its network of exclusive dealers or ‘official agents and that by denying any abusive nature to the said clauses on the grounds that the customer retained the right to demonstrate that the damage excluded from the conventional warranty fell within the legal warranty or the common law liability of the manufacturer and that of establish, when he contacted an independent professional,that his vehicle had been maintained and the protection of his bodywork ensured according to the specifications of Ford France moreover not defined in the general conditions of sale, the Court of Appeal violated Article L. 132-1 of the Consumer Code;

But given that the Court of Appeal held for reasons adopted that these provisions falling within the framework of the conventional guarantees granted, their only purpose was to specify the exclusions and the limits that the manufacturer intended to bring to them, without removing or reducing the right to compensation for the consumer who retained the ability to demonstrate that the damage excluded from the conventional warranty fell within the legal warranty or the common law liability of the professional; that it also retains that the other provisions did not in themselves have the effect of imposing on the consumer the choice of the professional responsible for the maintenance of the vehicle or of excluding any conventional guarantee in the event that the contract provided for the possibility for the buyer to have his vehicle serviced outside the Ford network, a professional not being in addition, conventionally bound to guarantee repair parts on which he had not been able to exercise control; that having thus established that the said clauses did not have the effect of creating a significant imbalance between the rights and obligations of the parties, it exactly deduced that the two disputed clauses, complying with the provisions of article R. 132- 1 of the Consumer Code, were not abusive;

FOR THESE REASONS :
DISMISSES the appeal;
Orders UFC 38 to pay the costs;
Considering article 700 of the new Code of Civil Procedure, rejects the request of UFC 38;
Thus done and judged by the Court of Cassation, First Civil Chamber, and pronounced by the president in his public hearing on July 5th, two thousand and five.

 

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