In France, abroad and for consumers

Terms of sale are defined by article L.441-1 et seq. of the French Commercial Code. They form the contractual link between seller and buyer. They are therefore the cornerstone of commercial relations.

Two steps are necessary to make the GCS enforceable:

– Reading the terms of sale,

– Acceptance of the terms of sale.

The Cour de Cassation (French Supreme Court) also states that there is no presumption of agreement to the general terms and conditions, and that acceptance must be proven by the party invoking them.

• The importance of acceptance among professionals.
  
  

Article 1119 paragraph 1 of the French Civil Code clearly states that “the general terms and conditions invoked by one party shall only have effect with regard to the other if they have been brought to the latter’s knowledge and if the latter has accepted them”.

In practice, it frequently happens that the parties transmit their general terms and conditions (GTC) to each other, without formal acceptance.

In this situation, the general terms and conditions are useless, since they have not been accepted by the other party.

This means, for example, that any jurisdiction clause inserted in the general terms and conditions will be ineffective, which may have the effect of putting the seller in a difficult position.

It is also important to specify, for sellers, that the buyer’s silence in the face of the GTC does not constitute acceptance (article 1120 of the French Civil Code: “Silence does not constitute acceptance, unless otherwise required by law, custom, business relations or particular circumstances”).

In a ruling handed down on March 16, 2022, the French Supreme Court (Cour de cassation) reiterated that, in the absence of proof of express acceptance by the contracting party, and in the absence of any legible mention of the general terms and conditions, and even if the contracting parties have had an ongoing business relationship, the general terms and conditions cannot be applied.

• In case of negligence and discrepancy between the GTC of the contracting parties.
  
  

When the contracting parties have not taken the time to agree on the general terms and conditions of sale for the seller and of purchase for the buyer, the Civil Code provides a rule when the situation is such that each party wishes to prevail and two clauses are incompatible; they are without effect (article 1119 Civil Code).

• In the event of negligence and discrepancies between the General Terms and Conditions and the Special Terms and Conditions.
  
  

Similarly, when the parties have not correctly agreed on the general conditions applicable between them, and a discrepancy arises between special general conditions and particular general conditions, the particular general conditions take precedence (article 1119 of the French Civil Code / ch. civ 09/02/1999).

• International application of general terms and conditions.
  
  

Application of the general terms and conditions will depend on the law applicable to the contract.

If the contract does not specify this, for European contracts we refer to European Regulation no. 593/2008 of June 17, 2008, which stipulates, for example (article 4), that the contract for the sale of goods is governed by the law of the country in which the seller has his habitual residence.

Not all legislations have the same rules, as in France, where proof of acceptance is required.

At the same time, in the case of a sale of goods, the Vienna International Convention of April 11, 1980 applies, unless excluded by the parties.

This convention stipulates (article 18) that “The acceptance of an offer takes effect at the moment when the indication of acquiescence reaches the offeror”.

However, article 19 specifies that: “A reply which tends to be an acceptance of an offer, but which contains additions, limitations or other modifications, is a rejection of the offer and constitutes a counter-offer”.

It is therefore important to specify exactly the applicable law and the competent court in the dispute clause between the parties, and to ensure that these provisions are accepted.

• The consumer’s consent to the GTC.

When a consumer enters into a commercial relationship, we refer to article L.221-13 of the French Consumer Code. The professional is obliged to make available to the consumer, in a “clear and comprehensible” manner, additional information such as contact details, the services concerned, etc.

In order for these GTCs to be enforceable against the consumer, they must be signed by the consumer, in order to prove that he or she has taken cognizance of them, as well as his or her consent to be bound by their provisions.

They cannot simply be referred to incidentally in the contract (CA Versailles 03/05/2016, n°15-02.478).

A certain formalism is also required.

Our firm is at your disposal to help you draft your general terms and conditions, in France and abroad.