2 Obligations d’Information

The Civil Code provided for two grounds of vitiation of contracts founded on imbalances of information between the parties: erreur sur les qualités substantielles de la chose (mistake as to the substantial quality of the subject matter) and dol (dishonest conduct).⁷ In the hands of French jurists and courts, both of these have been expanded far beyond their Roman antecedents.⁸ As a result, in general a party can escape a contract for erreur for mistake as to any aspect of the contract (except mere value) if it formed a determining element in a party’s decision to enter the contract,⁹ and as long as both parties were aware of the factual circumstances which give rise to the essential quality of the mistake.¹⁰ A party may escape a contract on the ground of dol where any dishonest dealing by the other party causes his ‘determining mistake’, that is, one without which he would not have entered the contract.¹¹ It therefore includes fraudulent misstatements, but is rather wider, extending to any chicanery intended to deceive as long as it was effected by the other party to the contract. Where a party’s dol has caused the other party harm, it attracts liability in delict under article 1382 of the Civil Code irrespective of whether the contract is annulled.¹² So stated there is a considerable overlap between erreur and dol, though it is said that where a defendant is dishonest it is easier for a claimant to establish his own mistake.¹³ They differ, however, in that dol necessarily constitutes a delictual fault so as to attract liability in damages as well as annulment,¹⁴ whereas erreur does not rest on any wrongful conduct in the other party.¹⁵ While the courts long allowed a claimant to choose (p.65) whether to claim annulment of the contract for erreur or instead termination of the contract under the garantie légale,¹⁶ in 1996 the Cour de cassation held that where there was a ‘latent defect’ within the meaning of the garantie légale, a buyer could not instead claim annulment on the ground of substantial mistake.¹⁷ On the other hand, where a buyer’s mistake has been induced by the dol of the seller, then the courts still appear to allow a buyer to claim annulment for dol.¹⁸

Moreover, since the 1960s the courts have accepted that dol par réticence (a knowing and dishonest failure to disclose a relevant matter) can give rise to annulment of the contract¹⁹ and it was in this context that the presence of an obligation d’information first became important, for where such an obligation exists any knowing silence will constitute dol par réticence without more.²⁰ However, obligations d’information soon took on a much wider significance. For it was argued that sometimes a party to a contract ought to have been aware of information of significance to the other and ought to have told him about it: where this is the case, silence or the (honest) giving of mis-information constitutes breach of an ‘obligation to inform’.²¹ The main significance of this development was that any failure in the provision of information which caused harm would necessarily give rise to liability in damages.²²

The Civil Code makes no explicit mention of obligations d’information and their development illustrates the willingness of French courts and jurists to develop practical legal devices on apparently shaky legislative foundations.²³ Sometimes they have been founded on the requirement of good faith²⁴ or the demands of equity²⁵ and, in the context of sale, a seller’s obligation to inform is sometimes seen as ‘accessory’ to the obligation to deliver the property.²⁶ The legitimacy of the case law was confirmed by legislation in 1992 which imposed obligations on ‘business sellers of property or suppliers of services…before the conclusion of the contract, to put a consumer in a position to know the essential characteristics of that property or those services’.²⁷

For long manufacturers and, later, business suppliers of goods were seen as the prime examples of those bearing an obligation d’information, both of whom were held by the courts liable in damages for their failure to supply information concerning the (p.66) goods to their buyers.²⁸ Within this context, the obligations have not been restricted to warnings of danger, but have included duties to give proper instructions as to the effective use of products, to advise a customer of the disadvantages of the goods offered or even the availability of a more suitable product on the market.²⁹ As a result, obligations d’information have been ‘one of the most effective ingredients in the development of the liability of manufacturers and business sellers’.³⁰

However, even after this legislation the legal classification of obligations d’information and the consequences of their non-performance remain uncertain. The formal position is clear: a pre-contractual obligation d’information turns a knowing silence into dol par réticence so as to allow annulment on this ground;³¹ whereas breach of a contractual obligation d’information (for example, forming part of the seller’s obligation de conformité) attracts the possibility of résolution for non-performance under the droit commun, depending on its seriousness.³² As between parties to a contract, liability in damages for breach of pre-contractual duties is delictual, whereas breach of contractual obligations can only be contractual.³³ However, while attempts have been made to find a basis for distinguishing between pre-contractual and contractual obligations d’information,³⁴ they are difficult to distinguish in practice.³⁵ This even remains true beyond the parties to a contract, for some argue that the benefit of the contractual obligation to inform can be transmitted with the thing as its ‘accessory’ as does the benefit of the garantie légale,.³⁶ while others hold that beyond the parties to the contract, breach of an obligation to inform gives rise only to liability in delict.³⁷ The courts have themselves taken no very firm line on the issue of classification, preferring to take whichever conceptual basis appears to them the more convenient, an approach made less significant by the fact that the content of the duty is not affected by its classification.³⁸

A key influence on the incidence of judicial imposition of obligations d’information has been the status of the parties. The legislation of 1992 imposed an obligation d’information only on business suppliers of property and services to consumers, but (p.67) the courts have imposed one also on one business to another even in the absence of any danger.³⁹ As between businesses, the courts have steered a middle course,⁴⁰ either imposing an obligation to inform on business sellers, but then reducing liability on the basis that the buyer ought also to have known of the matter and that a failure to do so constitutes contributory fault,⁴¹ or refusing to impose the obligation where a business buyer is found also to have the competence to understand the matter.⁴² In this way, the courts have nuanced their decisions so as to take into account the relative status, skill and means of knowledge of the parties to the contract in question, rather than simply accepting or denying the imposition of obligations d’information.

Generally, the jurists and courts accept that obligations d’information (where contractual) are classed as obligations de moyens⁴³ with the result that a buyer has to show a failure to provide appropriate information by the seller and that this resulted from a lack of care⁴⁴ or that the information supplied was insufficient given the risk or the interest of the user.⁴⁵ However, the Cour de cassation has held that it is for a person owing an obligation d’information to show that he has fulfilled it,⁴⁶ which reduces the significance of its classification as obligation de moyens to an indication that a seller need supply only that information which he could normally know: he does not have to indicate the properties of a product or characteristics of property which are capable of being discovered at some later date.⁴⁷ Moreover, the courts themselves vary the content of the obligation according to the status of the parties and the subject matter of the information in question, being much stricter where safety is in issue and where the buyer is inexperienced or unknowledgeable.

Many cases of obligations d’information imposed on sellers of goods have consisted of a duty to warn of the dangers of the product to person or property, whether generally or in the absence of certain precautions. So, for example, a manufacturer was held liable in damages to his crop for failing to inform a farmer of the need to water the plants after treating them with its artificial fertilizer (though liability was reduced on the basis that the farmer ought also to know about the use of fertilizers).⁴⁸ Similarly, the manufacturer of an insecticide was held liable to a farmer when the product blew (p.68) into his eye, the Cour de cassation declaring roundly that ‘a maker of a product must furnish all indispensable information for its use and notably warn the user of all the precautions to be taken where it is dangerous’.⁴⁹ And where a householder had used glue for tiling in his kitchen and vapour from the glue was ignited by a gas cooker, killing his daughter, injuring several other members of his family and damaging the kitchen, the glue’s manufacturer was held liable in contract to the householder and in delict to the other victims on the basis of its failure to warn adequately of the product’s dangers and necessary precautions for use.⁵⁰

French courts have also relied on obligation d’information in sellers and manufacturers to impose liability where a product proved ineffective rather than unsafe: ‘a vendeur professionnel has by reason of this status an obligation to inform the buyer of the conditions of use of the product’,⁵¹ though this is true only where meaningful instructions can be given.⁵² Sometimes, a seller must advise a buyer as to the choice of the product, pointing out if there are any difficulties in its use,⁵³ whether the buyer is a private individual or is also in business,⁵⁴ though not where a buyer is in a position to appreciate the matter himself⁵⁵ French courts have even held sometimes that a seller ought to have informed his customer that there is a better product on the market which he should use or that for some other reason he should not use the product offered for sale.⁵⁶ For example, a winemaker engaged a mason to paint the inside of a wine vat and the mason bought a paint termed ‘Registrat alimentaire’ which suggested that it was suitable for use with food.⁵⁷ Once painted and filled, however, the wine took the taste and smell of the paint. The winemaker recovered damages against the mason, who then recovered a partial indemnity against the retailer and manufacturer: according to the Cour de cassation, even if used perfectly the paint would have spoiled the wine and the seller, knowing the use to which it was to be put, had failed to indicate that its product was unsuitable for the job.⁵⁸ On the other hand, where a seller was unable to have foreseen his buyer’s particular use of the property, no obligation (p.69) d’information is imposed, this leading to a distinction between the buyer’s immediate supplier (who knows his particular purpose) and a more remote seller (who does not).⁵⁹ So, for example, a manufacturer of a computer system may not be liable for failing to inform its ultimate purchaser of its unsuitability for his needs, where only its immediate seller was in a position to evaluate them.⁶⁰

Many (if not all) of these cases on obligation d’information pre-date the decisions of the mid-1990s which prevented the ‘general law of contract’ (le droit commun contractuel) and particularly obligation de conformité from encroaching on the domain of the garantie légale and which treated liability for defects in safety separately.⁶¹ However, they still appear in the footnotes of the jurists and are treated as reflecting current practice. This resilience of obligations d’information even where their ambit overlaps with the garantie légale in sale may be attributed in part to their wider significance, especially in relation to the incidence of dol par réticence,⁶² but there is also a sense that cases of failures to inform, warn or advise are different from cases of liability for latent defects and may therefore rightly be treated by their own doctrine distinct from the garantie légale. On the other hand, from the mid-1990s the courts do appear to have preferred to treat claims for personal injuries based on failures to warn either on obligations de sécurité or on the new provisions of the Civil Code which implemented the Product Liability Directive. As I shall explain, however, the problems encountered by French implementation of this Directive may revive the significance of obligations d’information on vendeurs professionnels.⁶³