The General Obligation of Pre-Contractual Information in the Civil Code

Extract

[...] This severity reflects the desire of the drafters of the reform of the law of obligations to make the pre-contractual obligation to inform a truly essential obligation. However, paradoxically, the Cour de cassation seems to want to repair only the loss of chance of not contracting or contracting on less advantageous terms, considering the fact that it is difficult to know what the behavior of the creditor would have been if he had been duly informed. Nullity is also possible in addition to liability when we are in the presence of a defect of consent, since Article 1112-1 provides that the breach may 'lead to the annulment of the contract in the conditions provided for in Articles 1130 and following.' The article, however, insists on the absence of automatism of this sanction, and notably in the case of pre-contractual negotiations where, in the absence of the conclusion of a contract following the negotiations, there can be no nullity since no contract will have been concluded between the parties. [...]

[...] Taking into account the relationship between the parties, the creditor could expect the debtor to provide him with all the information in their possession. Overall, we can think that the obligation to provide information will find its main application within the framework of the relationships between professionals and laymen, since they necessarily have knowledge that is not within the reach of laymen, and they must communicate this knowledge to them. It will ultimately be up to the creditor of the information to prove that the three conditions were met in order for the debtor to be sanctioned, if the debtor cannot prove that he correctly delivered the information. [...]

[...] Nevertheless, the reform brings a general and protective regime that is more than necessary regarding an obligation as important as that of pre-contractual information. Subject for reflection Article 1112-1 of the Civil Code specifies that the obligation to inform must relate to information that is of determining importance. The term is well chosen, one can understand that the legislator wants to make the link with the vices of consent since the error, the fraud or the violence must have been determining of the consent. [...]

[...] Finally, the creditor of the information must legitimately ignore it or have trusted the debtor. There is no need to be a jurist to understand this statement. This simply means that no information should be delivered to the person who already has knowledge of the information. In addition to ignoring the information, the creditor must also demonstrate legitimate ignorance. For example, a person who, despite their best efforts, could never have had access to the information will be considered to be in a state of legitimate ignorance. [...]

[...] Deceitful reticence simply constitutes the silence kept on information that is known to be decisive for the other contracting party. However, within this framework, it was necessary to characterize an obligation to inform incumbent on one of the parties and that the latter had voluntarily failed to comply with it. From the 1980s onwards, in numerous judgments of the Cour de cassation, the concept of good faith made its appearance in order to justify the failure to comply with the obligation of information under deceit. [...]