Unfair Contract Terms Directive, link Consumer Rights Directive, link

ECLI identifier: ECLI:FR:CCASS:2020:C100016

In consumer law, the Court of Cassation is strict with regard to the qualification of consumer and professional qualities: as soon as persons are deemed to be exercising a professional activity, even a secondary one, the rules of the Consumer Code are excluded as soon as these activities are in question. Specifically, private individuals who take out home loans to finance the purchase of buildings intended for furnished rentals are excluded from the category of consumers and from the possibility of invoking the two-year limitation period applicable to consumers only.

A bank had granted a loan for the acquisition of condominium lots to borrowers. Following an attachment procedure conducted by the bank, the borrowers, invoking the statute of limitations of the claim, had summoned the bank to release the attachment, arguing that the lender's claim was subject to the two-year statute of limitations of the Consumer Code. The Court of Appeal refused to grant their request.

Is a loan taken out to acquire flats under the status of a professional furnished rental company exclusive of the two-year limitation period applicable only to the consumer?

In this judgment of 8 January 2020, 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.

Moreover, as the bank had not agreed to subject the contract to the provisions of the Consumer Code, the status of the borrower and the nature of the loan did not allow the two-year period provided for in Article L. 218-2 of the Code to apply.

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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.