Le Droit et Vous

Contract of construction of an individual house: the clause of tacit and unreservedly reception of the house must be deemed to be unwritten

Construction Law
Source: Supreme Court, 3rd Civil Chamber, May 6th 2015, n° 13-24.947: JurisData n° 2015-010267

A contract of construction of an individual house with provision of work plans was concluded between spouses and a society.
The specific conditions of this contract provided a clause written as follows: «any occupancy or moving in before the redaction of the minutes of reception, signed by both the contractor and the project manager, has the direct consequence of the unreservedly reception of the house and therefore the full outstanding amount is due, with no possible objection».
After expertise, the spouses summoned the society to get the refund of the sums paid, in respect of the demolition and reconstruction fees as well as the penalties for construction delays, and on a subsidiary basis, to have the exercise of their withdrawal right established, based on the provisions of the article L. 271-1 of the Construction and Housing Code, and the payment of the sums.
For the Court of Appeal, this clause must be deemed to be unwritten and therefore it dismissed the society's request to get the tacit reception of the house by the spouses established.
In support of its appeal to the Supreme Court, the society raised that:
- is valid and licit the clause of a contract of construction of an individual house, in which the parties have agreed that any occupancy or moving in before the contradictory redaction of the minutes of reception is understood as a tacit and unreservedly reception of the house; that by judging the contrary, after having accepted the possibility of a tacit reception, the Court of Appeal has violated the articles 1134 and 1792-6 of the Civil Code;
- the judge cannot misrepresent the clear and precise terms of the clause. The society considers that the contested clause does not impose an extensive definition of the reception, having as an effect to deprive the contractor of the benefice of the eight-day time limit to report the apparent disorders that were not mentioned on the day of the reception.
- even in the case of a tacit reception, the contractor can, by registered letter, within eight days following the reception, denounce the apparent disorders that were not mentioned at the time, in order to get them fixed in respect of the execution of the contract.
The Supreme Court considered, like the Court of Appeal, that «the contested clause considered the occupancy as an «effective» and «unreservedly» reception, though the reception involves the unequivocally willingness of the contractor to receive the house that the only occupancy is not enough to establish».
In these conditions, the Court of Appeal has rightly accepted, that this clause, which, «inserted in a contract concluded between a professional and a non-professional, creates, at the expense of the latter, a significant imbalance between the rights and obligations of the parties, because it imposes to the contractor an extensive definition of the reception, which is against the law, and has the effect of immediately making the outstanding sums due. »
The said clause is therefore deemed to be unwritten.

Illustration of the notion of disloyal commercial practice by companies against consumers

Consumer Law – European Law
Source: CJUE, April 16th 2015, aff. n° C‑388/13

The directive 200/29/CE of the European Parliament and the Council dated May 11th 2005, related to disloyal commercial practices of companies against consumers within the internal market, and modifying the directive 84/450/CEE of the Council and the directives 97/7/CE, 98/27/CE and 2002/65/CE of the European Parliament and the Council and the Regulation (CE) n°2006-2004 of the European Parliament and the Council (« directive concerning disloyal commercial practices »), defines the commercial practices forbidden in the European Union.
Under the terms of the article 5 of the directive, are disloyal commercial practices those which:
- do not respect the requirements of the professional diligence; and
- may affect in a substantial way the economic behaviour of the average consumer.
The directive defines two specific categories of disloyal commercial practices: misleading practices (by action or omission) and the other practices.
In the law case, submitted to the Court, a Hungarian consumer who wished to terminate his cable television contract in order to change of supplier, had asked his operator the ending date of his contract.
The operator provided an incorrect date, bringing therefore the subscriber to pay them additional fees, as the contract was cancelled one month too late.
In addition, the consumer had subscribed for the same period with a competing supplier.
Consequently the consumer had to pay fees to both suppliers for the same period.
The subscriber has then filed a complaint to the Inspection of the protection of consumers of the government decentralized services of Budapest, which sentenced the society concerned to pay a fine. The judges of first instance have confirmed the fine. However, the Court of Budapest has set aside the decision of the said national authority dated October 10th 2011 and has cancelled the fine imposed to this society.
This court has mentioned:
- the absence of intention to mislead the consumer from the professional concerned
- the alleged facts were not part of a continuous behaviour, but an isolated administrative mistake, which only concerned one client, hence could not be qualified as « practice ».
- besides, the consumer concerned could have got the exact information from several other sources.
On the contrary, the Court considered that it was indeed a misleading commercial practice, in the sense where the subscriber was communicated false information that was likely to mislead the average consumer.
The Court did not miss to remind that the scope of application of the directive is particularly extended. The notion of commercial practice is large as it includes «any commercial action, omission, behaviour, approach or communication, including advertising and marketing, from a professional».
The circumstance that the facts happened only once and for only one consumer has therefore no effect on the application of the directive.
The Court concludes that «the communication of an information, like in the main proceedings of this law case, by a company as part of the customer service of a subscription to a service of cable television subscribed by a private individual must be considered as part of the notion of «commercial practice», in the sense of the directive on disloyal commercial practices».

Mobility clause: the geographical region cannot be hypothetical

Labour Law
Source: Supreme Court, Social Chamber, May 13th 2015, n°14-12698

Law case decisions regularly consider that the mobility clause inserted in an employee's contract of employment is valid under the condition that it defines precisely the geographical zone of application (Supreme Court, Social Chamber, June 7th 2006, n°04-45846)
In this law case, an employee had signed a contract of employment, which stipulated that he was taking «the engagement to accept any change of posting in another agency, which would be necessary for the interest of the company's functioning and this, to all the regions where the society operates or will operate. »
The employee refused a new assignment, which caused his lay-off and he seized the labour court in order to ask for the nullity of this clause and his lay-off being renamed into unfair dismissal.
Even though the Court of Appeal had denied his request, the Supreme Court set aside the decision of the Court of Appeal for the motive that the mobility clause had to define precisely the geographical zone of application and cannot allow the employer to be able to unilaterally extend its reach.
The clause stipulated in the employee's contract of employment for the Supreme Court, allowed the employer to unilaterally amend its reach as it was envisaged that the employee could be assigned in a new sector where the company would be newly implanted.
The redaction of the mobility clause must therefore be as precise as possible, failing which, the judges will remove it.