The general conditions: are they still useful?

…The result of these details is that the general conditions of current trade, which are by nature always excluded from negotiation, and which would aim to create an imbalance, could be called into question at least partially; a doubt on the interpretation of a clause must benefit the person who has been asked to subscribe to the general conditions.

For them to be enforceable, the general conditions must have been accepted: whoever proposes them must therefore be able to prove that his co-contractor will have taken cognizance of them and will have accepted them; it is a matter of studying what is generally done in practice, on a like-for-like basis, and verifying its validity.

Thus, in its judgment of June 17, 2021, n° 17/05445, the Paris Court of Appeal, Pole 5, chamber 5, indicates:

Invoking the provisions of thearticle L. 441-6 of the commercial code indicating that the general conditions of sale constitute the 'single' basis of the commercial negotiation, company A. deduces from this that:

– on the one hand, the general conditions of sale take precedence over the general conditions of purchase and that consequently it is not possible to contractually set aside the general conditions of sale of company A. in favor of the general conditions of purchase of company B., since such a solution is contrary to the aforementioned provisions,

– on the other hand, by holding in the reasons for judgment that company A. expressly accepted the general conditions of purchase of company B. by delivering the clay units, the court violated the aforementioned text.

However, besides that this phrase has been repealed by thearticle 123-I of law n° 2014-344 of March 17, 2014, but reintroduced in the new article L. 441-1, III of the commercial code, from theArticle 1 of Ordinance No. 2019-359 of April 24, 2019 recasting Title IV of Book IV of the said code, it should be noted that it is essentially because thearticle L.441-6 of the commercial code imposes on any seller or service provider to communicate its general conditions of sale, which the legislator deduces from this that, once they are established, these constitute 'the basis of commercial negotiation', without however expressly considering that they automatically take precedence over the general conditions of purchase when these exist.

Therefore, the parties mutually opposing their general conditions, it is first necessary to determine those which possibly apply to the dispute.

It emerges:

– order form no. 6847 of January 8, 2014, addressed to company A., that company B. ordered 120,000 units of clay from it, half to be delivered on March 3, 2014, half on the following March 31, specifying that the said orders were made to its attached general conditions of purchase,

– of the order acknowledgment of January 10, 2014, that company A. has acknowledged receipt of it by attaching its 'new general conditions of sale applicable from April 1, 2013'.

It is not disputed that the same was generally true for order form no. 7427 of June 20, 2014, concerning 8,000 units of clay deliverable on August 22, 2014.

It follows that the buyer tried to impose his general conditions of purchase and that by acknowledging receipt of the order by attaching his own general conditions of sale, the seller also tried to impose his own conditions but has thus implicitly and necessarily signified that it does not accept the general conditions of purchase annexed to the order. Even if company B. then had the possibility of canceling its order in the absence of unconditional acceptance of its general conditions of purchase, it did not claim to have done so and does not dispute having finally accepted subsequent deliveries. . In the presence of general conditions, the essential stipulations of which are not compatible with each other, it should be considered that they cancel each other out and that no general condition is applicable, which leads to examining the dispute only according to the rules of common law and to declare henceforth without object the request of company A. for cancellation of article 1 of the GTC of company B. in respect of a possible significant imbalance in the obligations between the parties, since this stipulation does not apply to the dispute.

See as well : New obligations for review platform operators

Many texts add to the mandatory pre-contractual information under penalty of administrative sanctions or qualification as a misleading commercial practice.

• consumer code
• the DGCCRF or DDPP recommendations can be used as a guide

For your legal audit:

For your legal audit of a website, marketplace or application, including in the context of sales platforms, call on the firm Roquefeuil lawyers, specialized in digital law:

• Verification of the legal identification of the site
• Verification with regard to the law specific to the type of site (news, e-commerce (dropshipping, marketplace, classic sale), discussion, classified ads, intermediation, other services, etc.)
• Verification with regard to the law specific to the sector of activity, to the types of products or services
• Identification of publisher and host responsibilities
• BtoC: Verification of applicable consumer law, means of complaint and "right of withdrawal" mentions, abusive clauses
• Moderation Compliance
• Compliance with platform law (classification of ads, loyalty, etc.)
• Verification of the contracting process and advertising
• Verification of the conditions for processing personal data and cookies (privacy and confidentiality policy)
• Verification of intellectual property rights and rights of database producers

Beyond the analysis of the site itself, the web entrepreneur will have to check his supplier contracts to know what is his real freedom of action on the site:

What are my rights to the graphic charter? On the software and resources used? On domain names and trademarks? Is my trademark or domain name right reliable? Am I protected against plagiarism? Am I free vis-à-vis my communication agency?