The Implementation and Conditions of the Pre-Contractual Information Obligation in the Civil Code

Extract

[...] I - The creation of the pre-contractual information obligation It took the ordinance of 10 February 2016 for the general pre-contractual information obligation to be explicitly defined in the Civil Code Previously, no text provided for or imposed a general obligation to inform A - The praetorian contribution to the pre-contractual information obligation Before the reform introduced by the ordinance of 10 February 2016, it was the case law that allowed the creation of an information obligation that initially became accessory then general 1 - An obligation of accessory information Until the ordinance of 10 February 2016, on which we will return later, there was no general information obligation imposed on the contracting parties in the context of negotiations. Only certain special obligations were imposed by the legislator on the contracting parties and developed in the second part of our presentation. The Court of Cassation proceeded by successive stages in order to organize this general obligation of information. In fact, in a first time, the High Jurisdiction attached this obligation to various texts, considering it as an indispensable accessory to other existing obligations. [...]

[...] However, the second paragraph of article 1112-1 of the Civil Code provides however a limit This obligation of information is however limited. Indeed, it stipulates 'that nonetheless, this duty of information does not relate to the estimation of the value of the performance' (Civil Code, 1112-1 paragraph 2). This restriction means that even if it were a crucial and determining information for the conclusion of the contract, the co-contractant is not required to communicate to the other party the value of the good or the performance. [...]

[...] However, no general principle emerged from this jurisprudence, which is why the Court of Cassation intervened in a second time to establish this pre-contractual information obligation in a more coherent manner. 2 - A general obligation of information The Supreme Court attached the general pre-contractual information obligation to the regime of contract law. It thus distinguished two hypotheses according to which the lack of information had an impact on the consent of one of the parties at the time of the formation of the contract, or on its proper execution. [...]

[...] The creditor of this information is therefore at least required to inform themselves, or at least to take the necessary steps, as would anyone who wishes to contract with another party. They should not remain passive in their negotiations and wait for the debtor of the information to act. In fact, the Court of Cassation ruled in a judgment of June (Cass. Cvi, June 2009), that the failure to meet the obligation to provide information that was attributed to a landlord was not established in the sense that normally diligent tenant would have informed himself'. [...]

[...] In all cases, information on the value of the performance is not within the scope of the information obligation stipulated by the Civil Code. In addition and logically, this limit has been extended to the dolous reticence, in article 1137, paragraph 3 of the Civil Code, which until then, unlike article 1112-1 of the Civil Code, imposed an obligation of information even on the value of the performance. This is no longer the case since the law of 20 April 2018 ratifying the ordinance of 10 February 2016. [...]