Pre-contractual Loyalty in Sales Law

Extract

[...] Pre-contractual loyalty in sales law, a necessary requirement for contractual balance The preservation of contractual balance is necessary. This is notably the reason why the legislator has imposed many obligations on the professional seller These obligations aim to achieve essential equality in the context of negotiations, the pre-contractual phase The diversity of duties and obligations placed on the professional - Introductory proposal: loyalty joins good faith. It is a moral requirement. According to Philippe le Tourneau, every contractor, even a professional, must have a heart halfway between morality and law - The duty of loyalty to the charge of professionals imposes an obligation of information which is divided as follows: - An obligation of information (exposure of the underlying and consequences of the act and lighting for an informed choice) - An obligation to warn: to draw the attention of the co-contractor to the negative elements, to the risks - An obligation to advise: it relates to the opportunity of the service (Paris Oct Juris-Data, n°2006-32-7372), on a judgment of value from the debtor - Legal obligations of information: the information must be clear, precise, without ambiguity - Once the contract is concluded, other obligations (not developed as we are already in the contractual phase) still weigh on the professional: - A duty of perseverance - A duty of vigilance - A duty of transparency - A duty of loyalty These duties and obligations allow for a balance in pre-contractual relationships, in negotiations. [...]

[...] However, we also know the slowness of the law, the difficult implementation of certain texts and legislative verbosity. - The evolution of society and the Internet has brought with it new sales methods: impulse buying, sales between non-professional individuals (Le Bon Coin, Vinted, etc.). These practices are not well enough regulated. - The arrival of the Internet has further blurred this requirement of loyalty that implies good and real information of the co-contractor. The terms of use of the sites are frequently dense and difficult to understand. [...]

[...] What are the contours of pre-contractual loyalty in sales law? Pre-contractual loyalty in sales law In both public and private law, there is the principle of loyalty in contractual relationships. This principle is a cornerstone of French law. While in criminal law, it mainly concerns the theme of evidence, in civil law and more specifically in sales law, it essentially concerns contracts concluded between the parties. This notion also intervenes in labor law. It therefore touches all aspects of the law. [...]

[...] Examples: sanction of the lack of readability by judgment of June of the Court of First Instance of Troyes: 'the obligation of means of information of the users is not ensured in a sufficient way by the insertion in the TOS of simple mentions on the fraudulent acts and the quality of the personal information as long as they are without apparent character and proper to distinguish themselves sufficiently from the other contractual mentions of use of the service, which requires the implementation of a specific information page'. [...]

[...] The stakes of the good application of the pre-contractual loyalty principle are therefore important and this, even if we are located before the conclusion of any contract. In fact, it is a key stage that allows the contract to be concluded, if necessary. The question that arises in this case is the following: What are the contours of pre-contractual loyalty in sales law? In order to answer this question, it is necessary to delve into pre-contractual loyalty in sales law as a necessary requirement for contractual balance before studying the complex implementation of pre-contractual loyalty in sales law in a second time (II). [...]