Consent
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CIVIL CODE |
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Section I: Consent |
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Article 1109 |
| There is no valid consent if the consent has been given only by mistake , or if it has been extorted by violence or surprised by fraud . |
| The contract is only validly formed if the consent is given in full knowledge of the facts and freely. Consent must be the expression of a will preceded by reflection. This is also the reason why consumer law provides for reflection periods or a right of repentance. in particular within the framework of the regulation of door- to- door sales.Under the provisions of the Civil Code, if the consent is determined by inaccurate data there is an error. This may be spontaneous, it is a question of error in the strict sense, or it may have been provoked, it is a question of fraud.
If consent is the result of pressure, consent is not free but the result of violence. |
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Article 1110 |
| The error is a cause of nullity of the agreement that when it falls on the substance of the thing which is the object. It is not a cause of nullity, when it only falls on the person with whom it is intended to contract, unless the consideration of this person is the main cause of the agreement. |
| The Civil Code only mentions two types of error , that of substance and that of person. The contract, however, is not formed in the event of an obstacle error resulting from an error in the nature of the contract or in the object of the contract. Error is in fact considered to destroy consent as a result of the radical absence of a common intention.
Error in substance, moreover, is understood to mean error in the substantial qualities of the thing. The Court of Cassation considers that “the error must be considered as relating to the substance when it is of a nature that without it one of the parties would not have contracted” (Cass. Civ. March 1, 1988, Bull. Civ. . I, n ° 56 p. 37). Case law broadly understands the notion of error as to substance. The condition of the good sold, its convenience of use or the cost resulting from this use constitutes a substantial quality (CA Versailles, 3 Feb. 2000 RJDA n0 502). The sale of the shares of a company having sold some time before the transfer its business which was its essential asset is tainted with a defect of consent (Cass. com. Oct. 1, 1991, RJDA 11/91 n ° 930). The agreed quality constitutes a substantial quality. On the other hand, the error on an insubstantial quality of the service, the error on the person in cases where the consideration of the person was not the determining reason of the agreement and the error on the value are not of the causes of nullity of the engagement. The dolin the formation of the contract designates all the deceptions by which a contracting party causes his partner to make an error which determines him to contract (J. Ghestin, La reticence, le dol et l’hà © sicence, le dece l’erreur ’ . 247). Deceit is an act of disloyalty by one of the contracting parties towards the other. It can be a matter of maneuvers, lies or a simple reluctance. The Court of Cassation decided that “fraud can be constituted by the silence of a party concealing from the contracting party a fact which, if it had been known to him, would have prevented him from contracting” (Cass. 3rd civ. 15 Jan. . 1971, Bull. Civ. III n ° 38, p. 25, RTDCiv. 1971, p. 839). Reticence constitutes fraud: this is the case with the failure to The fraudulent reticence always makes the error caused excusable (Cass. Civ. 3rd. Feb. 21, 2001, Bull. III, n ° 20) The victim of deceitful maneuvers can exercise the action in tort, he is not obliged to ask for the nullity of the contract if he prefers to limit himself to asking for damages. |
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Article 1111 |
| Violence exerted against the person who has contracted the obligation is a cause of nullity, even though it has been exerted by a third party other than that for whose benefit the agreement was made. |
| Violence is an act of force which undermines or suppresses the freedom of consent. The evil with which the threat is exercised may be physical or moral or pecuniary. It must be unfair, as the use of legal remedies cannot constitute violence.The violence has spread to economic dependence, in particular thanks to competition law provisions relating to the abuse of economic dependence. |
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Article 1112 |
| There is violence when it is of such a nature as to make an impression on a reasonable person, and when it can inspire in him the fear of exposing his person or his fortune to considerable and present harm. We have regard, in this matter, to the age, sex and condition of the persons. |
| v. case law on transactional violence |
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Article 1113 |
| Violence is a cause of nullity of the contract, not only when it has been exercised on the contracting party, but also when it has been exercised on his or her husband or wife, on his descendants or ascendants. |
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Article 1114 |
| The only reverential fear towards the father, the mother, or other ascendant, without there having been exerted violence, is not enough to cancel the contract. |
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Article 1115 |
| A contract can no longer be attacked for cause of violence, if, since the violence ceased, this contract has been approved either expressly, or tacitly, or by allowing the restitution period fixed by law to pass. |
| v. ABUSE OF WEAKNESS |
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Article 1116 |
| Deceit is a cause of nullity of the agreement when the maneuvers practiced by one of the parties are such that it is obvious that, without these maneuvers, the other party would not have contracted. It cannot be presumed, and must be proven. |
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Article 1117 |
| An agreement entered into by error, violence or fraud is not automatically void; it only gives rise to an action for invalidity or rescission, in the cases and in the manner explained in section VII of chapter V of this title. |
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Article 1118 |
| The lesion only vitiates the agreements in certain contracts or in respect of certain persons, as will be explained in the same section. |
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Article 1119 |
| In general, one cannot commit or stipulate in one’s own name except for oneself. |
| Article 1120 |
| Nevertheless, one can be strong for a third party, by promising the fact of this one; except the indemnity against the one who stood up or who promised to have it ratified, if the third party refuses to keep the engagement. |
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Article 1121 |
| Similarly, one can stipulate for the benefit of a third party, when such is the condition of a stipulation which one makes for oneself or of a donation which one makes to another. Whoever made this stipulation can no longer revoke it, if the third party has declared that he wants to take advantage of it. |
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Article 1122 |
| One is deemed to have stipulated for oneself and for his heirs and successors in title, unless the contrary is expressed or results from the nature of the agreement. |
