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ECLI:FR:CCASS:2019:C100068

In consumer law, the Court of Cassation is demanding as regards the definition of the qualities of consumer and professional. As soon as persons are deemed to be exercising a professional activity, even if it is secondary, the rules of the Consumer Code are excluded as soon as these activities are in question. The fact that by convention one is attached to some of them does not constitute a general attachment.

In concrete terms, private individuals who take out real estate loans to finance the purchase of buildings intended for furnished rental, exercise a professional activity, which excludes them from the category of consumers and from the possibility of invoking the two-year limitation period under Article L. 218-2 of the Consumer Code.

By notarial deed dated 20 June 2006, a bank had granted a real estate loan to borrowers. Following a seizure-assignment procedure conducted by the bank, the borrowers, invoking the statute of limitations of the claim, had summoned the bank to release the seizure, arguing, in particular, that the lender's claim was time-barred and that, according to them, it was subject to the two-year statute of limitations of the Consumer Code. In their view, the real estate financing granted to them expressly referred to the procedure under the Scrivener Act No 78-22 of 10 January 1978. The Court of Appeal refused to grant their application.

Can private individuals who take out real estate loans to finance the purchase of buildings intended for furnished rental exercise be included in the category of consumers?

In this judgement of 23 January 2019, the Court ruled in substance that a private person exercising, on an ancillary but usual basis, the activity of renting furnished accommodation for which he was registered in the RCS, cannot claim the status of consumer.

In addition, the mere reference in the loan deed to some legal provisions of the consumer code relating to real estate credit, "which cannot lead to a voluntary submission to all the provisions of this code", does not have the effect of modifying the quality of the borrower and the nature of the loan and, therefore, does not allow the application of the two-year time limit of article L. 218-2 of the code.

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The Court of Cassation rejects the appeal of the plaintiff. The solution is in line with long-standing case law. It should be noted that registration in the RCS is a criterion used by both the Court of Cassation and the CJEU, without necessarily being conclusive. In this respect, the solutions are therefore convergent.