GENERAL PRINCIPLES
LexInter | April 27, 2002 | 0 Comments

GENERAL PRINCIPLES

DEFINITION

The term “consumer” is subject to various definitions. This is so in

the 1968 Brussels Convention
the Rome Convention of 1980
the Directive on unfair terms in consumer contracts
the Directive on consumer protection in respect of distance contracts

The consumer is generally defined as any natural person who, outside the framework of his trade, business or profession, enters into a contract with a supplier himself in the exercise of his professional or commercial activity.

However, certain national laws widen the category of consumers to extend it to the layman, which includes the professional when he acts outside his professional competence.

In French law, the notion of consumer has given rise to numerous questions and to fluctuating case law. If the directive of April 5, 1993 leans towards a restrictive definition of the consumer defined as a natural person not entering within the framework of a professional activity (art.2, b) the French law aims not only the consumer but also the ” Not professional”. The Court of Cassation adopted an extensive definition of the consumer by considering that a legal person could benefit from the protection as long as he was relative to the content of the contract ” in the same state of ignorance as any other consumer”(Cass. 1st civ., April 28, 1987, D. 1988.1 n. Delecbecque, JCP 1987.II.20892 n. Paisant, RTD Civ. 1987, 548, obs. Mestre. She then adopted a more restrictive vision by delimiting the area of ​​protection for contracts not directly related to his professional activity (Cass. 1re civ.> Nov. 24, 1993, D. 1994 som. com.p. 236, obs Paisant, Defrénois, 1994 p. 818 obs . D. Mazeaud, Cass. 1re civ. 21 Feb. 1995, JCP 1995.II.22502, n. Paisant, 5 Nov. 1996 contracts, conc.consom. 1997 n ° 12)

Quebec’s consumer protection law in article 34 establishes the contracts to which it applies. Article 3117 of the Civil Code of Quebec.

We will compare the Magnusson-Moss Warranty Act (1975) on the protection of consumers with regard to the warranty obligations of sellers. According to the Uniform Commercial Code, “consumer goods” are defined (UCC §ç-109 (1) as follows

” goods bought for use primarily for personal, family or household purposes ”

A similar definition can be found in the scope of the United Nations Convention on Contracts for the International Sale of Goods, art. 2 (a) which excludes from its application sales ” of goods purchased for personal, family or household use ”

First by a praetorian development, then on the basis of consumer law, case law applies to the consumer, and often to the professional of another specialty, specific rules, protecting him on unfair Clauses in particular making unenforceable clauses of limitation of liability.

 

 CONSUMER PROTECTION

EUROPEAN LAW and consumer protection

Consumer law and seller identification

Article L 121-18 of the Consumer Code provides for identification obligations by providing the following elements

Company Name
telephone number
address of headquarters
address of the establishment if it is different from that of the head office

Article 4 of the Distance Selling Directive provides

” in good time before the conclusion of the contract, the consumer must be provided with the following information: … identity of the supplier and, in the case of contracts requiring advance payment, his address ”

Consumer law and information obligation

The obligation of information has its first source in article 1602 of the Civil Code which prescribes that “the seller is required to clearly explain what he undertakes”. It is supplemented by the provisions of article 1162 which provides for the interpretation against the one who stipulates.

This obligation was reinforced by article L 111-1 of the consumer code which provides that

any professional seller of goods or service providers must before the conclusion of the contract put the consumer in a position to know the essential characteristics of the good or the service

This obligation results from Article 4 of the Directive concerning information on the essential characteristics of the good or service.

Freedom of establishment and location of service providers

This question will have to be regulated by harmonized provisions between the Member States of the Union. In fact, information technologies and telecommunications networks make it very easy to set up or move an electronic commerce business, or the elements of its operation that allow it to be “located”, in a country whose the regulations are less restrictive.

The European Commission notes that this not only prejudices consumer protection, but that it is likely to lead to a distortion of competition.

The potential criteria of location and establishments in themselves pose definitional problems: should we retain a formal criterion or a technological criterion, knowing that an e-commerce enterprise may correspond to a fragmented organization (see above). . Article 2 -c) of the proposal for a directive on certain legal aspects of electronic commerce (OJEC n ° C 30/4 of 5.2.1999), rather takes up the formal criterion of the permanent establishment.

Articles

Country of origin and electronic commerce, defense of the interests of European companies and consumers, Lolivier, Marc; Caparros, Asuncion, Gazette du Palais, 11/18/1999, pp 4-11

New information and communication technologies, Frayssinet, Jean, Lamy IT law, 07/01/2000, oo 2-16

Publicity

Advertising and marketing on the Internet-An overview of Belgian and European law, Verbiest, Thibault, Expertises des systems information
01/01/2000, 414-416

Consumer information: advertising for credit transactions

Article L 311-4 of the Consumer Code, clear and complete consumer information, presentation of financial products

Rennes Court of Appeal, March 31, 2000, SA Coopérative Compagnie du Crédit Mutuel de Bretagne v Association Federation Housing, Consumption and Environment of Ile et Vilaine,

Advertising for a credit: a website is an advertising medium, Galloux, Jean-Christophe, Communication Electronic commerce, 01/06/2000, pp 24-25

A website can constitute an advertising medium, Hazan, Alain
SOURCE Légipresse, 01 / 06/2000, pp 97-99

Consumer merchant contracts

Electronic commerce, a first standard contract the merchant-consumer contract of the Paris Chamber of Commerce and Industry, Vivant, Michel, Revue Lamy Droit des affaires, 01/09/1998, pp 9-13

Affiliate contract

Consumer Code, article L 122-35; Law of December 31, 1989

The affiliation contract on the Internet, Manara, Cédric, Dalloz, 05/11/2000, pp 3-4

     consumer access to commerce

The evolution of practices must be done without penalizing those who   do not have a technological culture. There is a   technical illiteracy which is a question of   knowledge, financial means and access to technology, and which can also result from subjective considerations. The development of English as a   sabir, and of   automatic translators, should not   conceal comprehension problems. Fair trade requires that there be no “excluded from technology” and the indisputable advantages that it presents.

With regard to those, professionals or consumers, who have a technological culture, it is necessary to underline the risks of behavior of the technological tool.   It is first of all the impulsiveness that allows, if not encourages, the ease of communication and therefore the inconsiderate and disproportionate aspect of the orders that can be made   and   the costs that can be incurred.

It is also about the disempowering aspect of technological means. Depersonalization and dematerialization, by removing physical contact and personal relationship, remove moralizing factors. The criminogenic factors of the technical challenge in the absence of physical risk and the feeling of impunity within the framework of this depersonalization are also well known.

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