INTRODUCTION TO LAW – CORRECTED ASSIGNMENT D0006

CORRECTED ASSIGNMENT D0006

The proposed correction aims to be as comprehensive as possible, for your correct information and
to serve you as a supplement of knowledge. All the elements it contains
were therefore not required in your copy.

I. REFLECTION QUESTIONS

1. What are the objective reasons that make the law necessary
current consumption?

Civil contract law assumes equality between the parties, which leads to fairness in their agreements.
exchanges. Now, by definition, professionals are in a superior position compared to
to consumers. Trade exchanges could no longer be fair without the
recourse to specific rules: consumer law.
Since the 1960s-1970s, we have observed a de facto economic inequality in the
most of the relations between professionals and consumers: deceptions, non-clauses
fair, absence of possibility for discussion, marketing techniques, sales,
increasingly aggressive canvassing..., which leads public authorities to deviate from
civil law in the sense of a necessary protection of consumers, often unaware or
isolated. It is the beginning of the consumerist movement.

According to Jean CALAIS-AULOY and Franck STEINMETZ, in Consumer Law, Handbook

Dalloz Private Law, 4eedition, 1996 :
"To acquire goods or services, consumers engage with
natural or legal persons, who make a profession of selling goods or providing
services. However, the relationship between professionals and consumers is naturally
unbalanced. The professional's competence, the information available to them, and often their
financial dimension, allows it to dictate its law to the consumer.
This does not mean that professionals are, by hypothesis, dishonest people.
looking to take advantage of the situation. What I mean is that professionals are, by
the nature of things, in a position of superiority, and that consumers risk being it
the victims.
This imbalance has always existed. Already, in Roman law and in ancient law, various rules
tended to protect buyers (they didn't yet say "consumers") against
the deceptions...
It was in the 1960s that consumers, in turn, posed a problem of
society. This period corresponds, however, to an unprecedented economic development,
which multiplies the goods and services offered to consumers. But it also corresponds to
to the increase in the size of companies, to the greater complexity of products and

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services, the development of credit, advertising, and marketing. This increases the
disparity between economic partners: professionals are increasingly finding themselves
more in a position of strength vis-à-vis consumers...
Thus arises the necessity to protect consumers, not only against the
dishonesties that have been known for a long time and which are fortunately not
frequent, but also against the abuses of economic power, which are more dangerous
because they are inherent to the system in which we live and they are not always
perceived by public opinion.

It can therefore be seen, from reading this excerpt, that the development of consumer society
a, through the increase in purchasing power, allowed the expansion of markets.
Providers of goods and services are often of national or even international size.
They implement large-scale technical and commercial means to
to maintain or increase their market shares. They think in terms of volume without much
to care about the isolated consumer with their specificities.

This mass consumption has led to a reduction in costs, often to the benefit of
consumer, but often also to the detriment of the quality of the service provided or the good
sold. The economic weight of the individual consumer has become insignificant.
Contracts concluded between professionals and consumers are therefore placed, notably
Since the emergence of the post-war consumer movement, under surveillance
particular and increasingly reinforced by the legislator.

2. Why are consumers not always the best equipped?

to enforce their rights?

Besides the economic aspect that gives them little psychological weight, consumers
Individuals cannot know all the regulations...
They do not always have the time or the money necessary for legal action.
especially since disputes sometimes have little financial significance.

3. What individual or collective solutions allow for it?

respect consumer rights?

Every consumer can take legal action. It is their most fundamental right. If each
if the consumer exercised this right in practice, consumer law would be perfectly
respected by professionals.
This does not happen in practice. Individually, consumers can therefore
subscribe to legal protection insurance contracts. The insurer will then have to bear the costs.
of proceedings after attempting an amicable agreement with the professional.

As part of collective actions, consumers can come together in

consumer associations, to which the law grants the right to take legal action for
to precisely defend the collective interests of consumers and, more particularly, to

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halt or remedy the "events causing direct or indirect harm to the collective interest of
consumers.
These 'facts' are understood in a broad sense by our consumer law (actions
illegitimate, abusive clauses, non-compliance with legislation...), as well as the notion of "interest"
collective of consumers" that must be found in new types of actions, actions
open to associations and aiming for the repair of a sum of individual damages.
There is even now, in France, a "class action" open to associations and
leading to the grouping of aggrieved consumers in a class action lawsuit ("
class action). This action already existed in the United States and some had been proposing it since
it took a long time to introduce this possibility in France, to prevent dozens of victims from
are compelled to hire their own lawyers to plead, while the damage and the
legal means are identical. This class action has, however, long faced
the hostility of jurists, who saw it as a breach of the principle that 'no one pleads by'
prosecutor." It was introduced into our Consumer Code in 2014.

4. Why do consumer associations play a role

primordial in the effectiveness and evolution of consumer law?

Apart from their possibilities for legal action to enforce regulations of the
consumer law, associations play an educational role for consumers,
through their publications and their actions sometimes reported by the media.
They can play a preventive role when they detect, through their members, a
risk of damage, such as in the case of abusive clauses for example, or a possible
non-compliance with the law.

They can, through their interventions, influence the legislator so that he adapts the law of the
consumption through constant innovations from professionals, in terms of products and in
business tips
They constitute an important pressure group that professionals avoid confronting.
One can mention, for example, the boycott of "hormone-fed veal." They have much more
weight than an individual consumer.

5. The common law adage that "no one is supposed to be ignorant of the law"
It also applies to consumer law. What do you think?

It should first be clarified that this adage means that ignorance of the law is possible, but that in
In no case does this ignorance exempt the citizen from respecting the law. One cannot imagine
a company that would condition the respect of the law on its knowledge by individuals...
In recent years, the government has made real efforts to make the law accessible.
to citizens, including in the field of consumer law. For example, all the
Codes are accessible online at the website www.legifrance.gouv.fr.
The media is also a good channel for making the public aware of new developments.
in the subject.

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Consumers, like professionals, therefore have the real opportunity to access

the knowledge of the texts of law. But the knowledge of the rule of law is not sufficient
to make it effective: just as some drivers exceed the speed limits
of speed (and yet they know the legal rule in this matter), some professionals
they are rarely willing to deviate from the rules of consumer law, either out of negligence or interest.

Surely, an increase in penalties could make professionals think about

the obligation to respect laws and regulations, but without individual or collective action of the
consumers, consumer law remains largely ignored.

II. PRACTICAL CASE

MRS. DEGRANVILLE AGAINST THE ANTIQUARY

Introduction

Article 1138 of the Civil Code forms the basis of the principle "res perit domino": the thing
perished in the hands of its owner, that is to say at the risks of its owner. The matter
which is submitted to us will allow us to shed particular light on this principle, applied
to the sale of certain bodies.
Indeed, Mrs. de Granville was to be delivered, the day after her purchase, paid in cash, of a
Louis XV style chest of drawers. On the agreed day, the seller does not deliver the item. Despite the
claims of Mrs. de Granville, the seller does not comply and it is by chance that Mrs.
de Granville learns that the store, and consequently the dresser, have been destroyed by a
fire.
Mrs. de Granville intends to find compensation, insofar as she has obviously paid.
for a good that she will never own. Her problem is therefore to obtain at least the
refund of the dresser paid for and not delivered by the agreed deadline, at the latest
damages and interests that will be added to the reimbursement of the price paid.

Let us examine the remedies available to her: it is first necessary to determine the implications.
from the destruction of property on the possibilities of repair, then the courses of action that remain
open to Mrs. de Granville.

1. The qualification of the contract and the ownership of the purchased item

It is a sale (art. 1582 C. civ.) concluded on Tuesday between a professional (the antique dealer) and a
consumer (Mrs. de Granville).
According to the Civil Code, it is entirely valid even if it is verbal, since the sale is
a consensual contract: no need for a written document, and therefore no particular clauses of any kind
nature in this case.
According to Article 1583 of the Civil Code, the transfer of ownership in a sale occurs without
formality and in an abstract and immediate manner, as soon as the parties agree on the subject and on the
price, and completely independently of the parties' performance of their obligations.

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Or, here, the agreement on the item (the dresser chosen by the buyer) and the price (which has even been
paid, proof of its acceptance by the buyer) took place on Tuesday. Consequently, the
the transfer of ownership from the antiquarian, seller, to Mrs. de Granville, buyer, has taken place
immediately and without further formalities on Tuesday.

2. Means of action

a. On the delivery time

Scheduled for Wednesday, it was not respected.
Or, in terms of delivery time of the good or execution of the service rendered
of the contract, the Consumer Code provides for a general obligation of information, in
Article L. 111-1 4°: "in the absence of immediate execution of the contract," the professional
communicate to the consumer, in a readable and understandable manner, "the date or the deadline
to which the professional commits to deliver the goods or to perform the service.

This general obligation is specified in Articles L. 138-1 and following: "The

The professional delivers the good or provides the service on the date or within the timeframe indicated.
consumer, in accordance with 4° of article L. 111-1, unless the parties have agreed otherwise
otherwise. In the absence of indication or agreement regarding the date of delivery or execution, the
The professional delivers the good or performs the service without unjustified delay and no later than thirty.
days after the conclusion of the contract.

In the event of the professional failing to deliver the goods or provide the service
of the service on the date or at the expiration of the stipulated deadline or, failing that, no later than thirty days after
the conclusion of the contract, the consumer can cancel the contract by registered letter
with a request for acknowledgment of receipt or in writing on another durable medium, if, after having
enjoins, under the same terms, the professional to carry out the delivery or to provide the
service within a reasonable additional time, the latter did not fulfill it in this
deadline.
Mrs. de Granville could potentially rely on these legal texts.
consumption to resolve its sales contract, but it wouldn't really help.
in this case, because the resolution of the contract is a retroactive sanction that requires the parties to
to restore things to the state they were in before the conclusion of the contract - which is
impossible here since the dresser has been destroyed and the delivery failure is due to force
major...

b. On the obligation of delivery

The timeframe set by the seller for delivering the item has not been respected, for a reason or
another one.
So, if we consider the delivery deadline, we can consider another basis for the action:
the failure to fulfill the obligation of delivery, based on Article 1604 of the Code
civil.

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The buyer may hold the seller liable for non-performance of their obligation of
delivery, the delivery was to be made within 48 hours and has still not been completed 72
hours after the formation of the contract.

Indeed, according to articles 1604 and following of the Civil Code, the obligation to deliver must have
place from the moment of the contract formation. But, according to article 1610, the principle is the agreement.
about the deadline for delivery.
In the event of silence from the parties, it does not necessarily mean that the sale is available.
That is to say that the delivery was to occur at the time of the formation of the contract. According to
the texts, the delivery should in principle take place at the time of the conclusion of the contract,
but in such cases, judges tend to apply the practices to which the parties are
supposed to have referred to. These practices often provide that the delivery must take place after
formal notice to deliver.
In the presence of an agreed term, which is the case at hand, it must be scrupulously
respected. In such a case, the buyer is not even required to formally notify the seller.
Of delivery, the failure to deliver within the agreed term can lead to the termination of the contract.
against the seller and damages, that is to say all the classic sanctions
of contractual liability.
Here, the delivery delay was even noted by sending a registered letter with acknowledgement of receipt, which will be a
proof of the antique dealer's failure to fulfill their delivery obligation, reparable
in justice.

c. On the loss of the thing

. The rule that the thing perishes for its owner.

The fire led to the disappearance of the object, its destruction. This loss must therefore be
supported by one or the other of the parties to the sale, and it will be our responsibility to determine
which of these parties was to bear the 'risk' (in practice, this refers to the loss of the
a chair or that of its price, without compensation).
According to article 1138 of the Civil Code, previously stated, which constitutes the foundation of
principle "res perit domino", the thing perishes for its owner, the risks are therefore on the owner.
charge of the owner of the thing.
The sales contract, which pertains here to a specific object, transfers, under Article 1583 of the
Civil code, immediately the property, in the absence of contractual stipulations deferring the
moment of property transfer. And the transfer of risks, without contractual stipulations
opposite, is attached to that of property.
It is clearly stated in the facts of the case that the sales contract that occurred between the parties
did not contain any specific clause, so the transfer of ownership will take place according to
the rules of common law.
So, in principle, the destruction of the thing by fire after the conclusion of the contract, but
before delivery, is the responsibility of the buyer, who will not be able to receive his
commode, but will not be able to demand a refund of the price from the seller.

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In sales, the transfer of ownership, which is a principle of French law, occurs as soon as
the agreement of the parties on the subject and the price. In the absence of contractual stipulations,
Mrs. de Granville was therefore the owner of the property, from the conclusion of the sales contract, on the
Tuesday, as it has been said. This is certainly all the more true since the price was paid in cash:
no obstacle seemed able to hinder the transfer of ownership.
If we stick to the principle, we must then consider that, starting from Tuesday, it is even stronger on Monday.
Next, Mrs. de Granville was the owner of the property, and as a result, she must bear
the destruction of the thing. No recourse would then seem possible: she has paid the
furniture, but cannot retrieve it, nor get her money back; if the risks are on her,
this indeed means that she must abandon the amount paid without compensation.
. The effects of the formal notice to deliver the property

However, still based on article 1138 of the Civil Code, but in its paragraph 2,
The creditor of the obligation to deliver (the buyer) will bear the risk from the outset.
of the obligation (from the formation of the sale), "unless the debtor is in default of
deliver, in which case the item remains at the risk of the latter.
This seems to be the case here, since Mrs. de Granville sent a registered letter with acknowledgment of receipt.
the Friday following the sale that took place on Tuesday.

In this way, it will be possible to consider that the risks were put back since Friday.
at the seller's expense, even if the buyer was already the owner of the item.
For this, Mrs. de Granville will have to prove that the letter was indeed received before the disaster.
(on Friday, the AR being valid) and that its content was explicit regarding the seller's delay and
to its notice of formal notice.
The buyer having sent a registered letter with acknowledgment of receipt, this situation
certainly falls within the forecasts of the article. Indeed, one can assume that if the seller
would have been delivered on time, the loss of the item would not have occurred in the hands of
the buyer.
But it is the judges of the case who will decide in this instance and sovereignly, based on the
circumstances and the content of the letter, if this letter was indeed a formal notice, transferring
So again the risks, from the head of the purchasing owner to that of the seller, who will have to
so replacing the dresser (a hypothesis hardly achievable here, as it is a certain body
and it's not something like that, we can't easily find the same dresser,
same time...) or, more surely, reimburse the price paid.

d. On the seller's obligation to preserve

There is, in sales, an obligation to keep the sold item in good condition, which
weighs on the one who physically holds the thing.
Here, the holder of the sold item was the seller: thus, as the debtor of the delivery,
A jurisprudential obligation of result aimed at the conservation of the thing weighed on him.
Regardless of the transfer of ownership and risks, he was required to keep the thing.
in the state it was in at the time of the contract formation, and this until delivery. The

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the seller can only be relieved of this obligation by proving the case of force majeure for
to free oneself, because if the loss is due to their fault, it remains their responsibility and they must also, in addition, ...

damages and interest for poor performance of its obligation of preservation.

We should then discuss the nature of the fire: is it a case of force majeure or a
is a fortuitous event sufficient to exempt the seller from this obligation of preservation?
Note: when the obligation of retention rests on the buyer, it is only a matter of means.

3. Possible recourse against the seller's insurance

The claim, by Mrs. de Granville, for the insurance indemnity that may be paid to
Seller - through his fire insurance - may be possible here, as a special privilege on
this compensation is provided for in article 2332-8° of the Civil Code and in article L.124-3 of the Code of
assurances, for third parties (under the insurance contract) who have been harmed by an insured accident and
Compensated: "Claims arising from an accident benefiting third parties harmed are privileged.
this accident on the compensation which the insurer acknowledges or has been judicially recognized
debtor by virtue of the insurance agreement.
It is necessary that the antique dealer has been insured, well insured, able to prove to the insurance.
that he owned this dresser and that it was destroyed, and finally able to prove its value
real of the chest of drawers.

But an obstacle to Mme de Granville's recovery of the amount stands in the way: the
jurisprudence limits this privilege to liability insurances, but here we are in
insurance matter of things.

4. Competent court to consider the action of Mrs. de Granville

Mrs. de Granville is a consumer in the strict sense of the term; she has contracted in a
but purely deprived of satisfaction of his personal needs, it is therefore in this case a
private individual.

The antique dealer buys furniture to resell to his clients and provides services.
of services, he therefore carries out commercial acts by nature (art. L. 110-1 C. com.) as a title
usual, professional and independent (art. L. 121-1 C. com.), he is therefore a merchant and has
contracted as a trader in the exercise of his professional activity.
The act is therefore a mixed act in which a civil plaintiff attacks a defendant.
merchant

Mrs. de Granville, the civil plaintiff, must file her action within 10 years;
with freedom of proof;
in front of the civil court (TGI certainly given the amounts at stake or TI if the
the amount of the chest of drawers plus damages does not exceed 10,000 euros;
or the commercial court, at its choice.

Territorially, the competent jurisdiction will be the one within whose area the
place of the antique dealer's business (art. 42 NCPC) or that of the conclusion of the contract (art. 46)

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NCPC), but not that of the place of destruction of the thing, because we are in the matter
contractual and non-tortious.

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