Court of Cassation Ruling on Pre-Contractual Information Obligation

Extract

[...] It was thus up to the Court of Cassation to determine the articulation between the scope of the general pre-contractual information obligation provided for by the Civil Code and that of the special pre-contractual information obligation provided for by the Tourism Code. The High Jurisdiction therefore had to answer the following question: does the respect of the special information obligation provided for by the Tourism Code suffice to exonerate the professional from his general obligation of common law information? The Court of Cassation, in its decision of 25 September 2024, answered this question in the negative. [...]

[...] The Court of Cassation therefore rightly judged the appeal judgment which held that the company had committed a fault engaging its liability. Towards an Extended Protection of the Consumer The Court of Cassation illustrates here a jurisprudential evolution in favor of a reinforced protection of the consumer, specifying that the tourism professional must meet a double requirement of information, combining the special rules of the Tourism Code and the general principles of contract law. If the adage specialia generalibus derogant allows us to consider that a special rule can derogate from a general rule in case of contradiction, this condition not being met here, articles L. [...]

[...] A necessary cumulative application of pre-contractual information obligations The Court recalls that the special obligation of the Tourism Code cannot alone exhaust the pre-contractual information duty. It must be completed by the general obligation arising from common law This cumulative requirement is explained by the importance of this duty, which is based on the recognition of a determining information, the absence of which calls into question the consent of the contracting party The insufficiency of special law to satisfy the pre-contractual information duty The Court of Cassation recalls, in accordance with Articles L. [...]

[...] Court of Cassation, Civil Chamber 25 September 2024, No. 23-10.560 - Is the respect of the special obligation of information provided by the Tourism Code sufficient to exempt the professional from their general obligation of common law information? In contract law, the pre-contractual obligation of information is an essential mechanism for protecting the consent of the parties. Enshrined in Article 1112-1 of the Civil Code, it requires each party to reveal to their co-contractor the determining information for their consent. [...]

[...] In other words, the Court considers that the fact that the agency provides general information, mandatory for all travelers, does not exempt it from the obligation to communicate information adapted to the specific situation of its clients. This includes, in particular, the case where their passport contains a mention of a previous trip to Iran, which requires a visa request. The agency should therefore warn them of the risk of not obtaining this visa before a very close departure date. To this end, it relies on the joint application of the specific rules of the Tourism Code, derived from European directives, and Article 1112-1 of the Civil Code. [...]