Case law

  • Case Details
    • National ID: N° de pourvoi : 03-11411
    • Member State: France
    • Common Name:Société des paiements Pass / Mme X
    • Decision type: Other
    • Decision date: 23/11/2004
    • Court: Cour de Cassation (Supreme court)
    • Subject:
    • Plaintiff:
    • Defendant:
    • Keywords:
  • Directive Articles
    Unfair Contract Terms Directive, Article 1, 1. Unfair Contract Terms Directive, Article 2 Unfair Contract Terms Directive, Article 3, 1.
  • Headnote
    1. With its ruling of 21 November 2002, the ECJ stated that Council Directive 93/13/EEC of 5 April 1993 is opposed to any Member State regulation which, in an action brought by a professional against a consumer and based on a contract concluded between them, prohib-its the national judge presiding over the case from raising – either ex officio or following an objection raised by the consumer – the unfair nature of a term in the aforementioned con-tract once the period for foreclosure has elapsed.
    2. A contract term in a preliminary credit offer that reduces the borrower’s period of reflection with regard to renewing the credit arrangement originally made does not simply impact on the way in which the contract is performed, but rather is in breach of the requirements laid down in articles L. 311-8 to L. 311-13 and R. 311-6 of the Consumer Protection Act (Code de la consommation, CC). As such, it invalidates the preliminary credit offer.
    3. Under article L. 311-37 CC, a consumer is not entitled to take action against a professional more than two years after the point at which the event giving rise to the dispute took place.
    4. It is not possible to forestall this two-year period for foreclosure on the basis of EU case law. In fact, forfeiting one’s rights to interest because the preliminary offer was invalid is not one of the penalties in the case of an unfair term, which can only be viewed as not being in writing.
  • Facts
    On 20 October 1998, the financial services company (société des paiements), Pass, granted Mrs X credit of 1524.49 euros at 14.82 % APR for a one-year term to be renewed by tacit agreement. After the credit arrangement had been renewed several times, the company demanded repayment of the loan on the grounds that Mrs X had defaulted. Subsequently, on 15 January 2002, Mrs X invoked a number of invalid features in the preliminary credit offer to argue, under article 311-37 CC, that the lender had forfeited his right to interest payments. The lender then lodged a “fin de non recevoir” plea arguing that Mrs X had no grounds to make the claim since it was no longer possible to invoke the invalidity of the preliminary offer more than two years after it had been drawn up.
  • Legal issue
    The Supreme Court overturned the Court of First Instance decision to reject the “fin de non recevoir” plea that there were no grounds for Mrs X to make her claim. The ruling was made for the following reasons:
    In rejecting the “fin de non recevoir” plea, the Court of First Instance explained that, in its ruling of 21 November 2002, the ECJ had stated that Council Directive 93/13/EEC of 5 April 1993 is opposed to any Member State regulation which, in an action brought by a professional against a consumer and based on a contract concluded between them, prohibits the national judge presiding over the case from raising – either ex officio or following an objection raised by the consumer – the unfair nature of a term in the aforementioned contract once the period for foreclosure has elapsed. The court thus concluded that the period for foreclosure laid down in article L. 311-37 CC should not apply in this instance.
    However, the court also recognised that the contract binding the two parties stated that the borrower would be informed of the contract renewal conditions and, if he wished not to renew, he would have to notify the lender formally at least one month prior to the renewal date. Furthermore, article L. 311-9 CC stipulates that the lender must inform the borrower of the contract renewal conditions three months prior to the renewal date. The court therefore concluded that this constituted a reflection period for the borrower. The aforementioned term reduces this reflection period and puts the borrower in a weaker position since it places further obligations on him.
    This term did not merely impact on the way in which the contract would be performed, but rather the validity of the preliminary contract offer, which no longer complied with the requirements laid down in articles L. 311-8 to L. 311-13 and R. 311-6 CC.
    However, the Supreme Court ruled that, by forestalling the “fin de non recevoir” plea on the basis of ECJ case law concerning unfair terms at the same time as arguing that the preliminary offer had been invalidated, the Court of First Instance had broken the law. In fact, the invalid features of the preliminary offer on their own would incur the penalty of forfeiting any rights to interest payments. Yet, this penalty does not apply with regard to unfair terms, which can only be regarded as not being in writing. As a result, the court was not entitled to invoke ECJ case law on banning unfair terms, since this ban could not apply in this particular case.
  • Decision

    Full text: Full text

  • Related Cases

    No results available

  • Legal Literature

    No results available

  • Result