13 January 2020

General principle of prohibition of lotteries: Exceptions
Article L. 322-4 of the Internal Security Code, which sets out the exception to the principle of the prohibition of lotteries, referring to traditional lotteries with participants constituting a restricted circle and pursuing a social, cultural, scientific, educational, sports or local events purpose with low stake bets, is not likely to infringe the principle of lawfulness, insofar as, even though the criterion of the organization of lotteries in a restricted circle has not been subject to any statutory definition, it has been clarified in the case law, is not particularly complex and ensures that the litigant knows which lotteries are prohibited and that the court can carry out its role without its interpretation being susceptible to arbitrary criticism.
Court of Cassation, criminal chamber, 18 December 2019, LawLex202000002JBJ

General principle of prohibition of lotteries: Exceptions
Article L. 322-4 of the Internal Security Code does not violate the presumption of innocence, insofar as it does not follow from its provisions setting out the exemptions to the principle of prohibition of lotteries, “for traditional lotteries, organized in a restricted circle and pursuing a social, cultural, scientific, educational, sports or local events purpose with low stake bets”, that it is the responsibility of persons prosecuted for prohibited lotteries to show that they constitute a restricted circle, but for the prosecuting authority to establish that the elements constituting the offense are present.
Court of Cassation, criminal chamber, 18 December 2019, LawLex202000002JBJ

Obligation to inform and advise: Professional creditor
The manufacturer of a new product is required to provide the buyer, even if a professional user of the product, with the information necessary for its use and about any eventual risks that may arise from the use thereof, if applicable.
Court of Cassation, commercial chamber, 27 November 2019, LawLex2020000012JBJ

Obligation to deliver goods in conformity: Obligation to provide information and advice
The sellers of a building breach their obligation to deliver goods in conformity where they inform the purchasers on the deed of sale and in the report following the sanitation system inspection, that the conformity of the septic tank serving their residence could be made better in the future by improvements to the ventilation system in order to avoid premature wear and tear, whereas they were aware of the recurrent malfunctions of the sanitation system and knew that its performance was not adequate to be “declared in conformity”.
Court of Cassation, 3rd civil chamber, 5 December 2019, LawLex201900001566JBJ

Legal guarantee of conformity: Sanctions in kind
The seller who is responsible for defects of conformity during the delivery of the good and for implementing the solution proposed (replacement or repair) within the one-month period under Article L. 217-10 of the Consumer Code, breaches its obligations by offering an alternative solution within a period of 12 weeks, exceeding the legal period, regardless of the fact that the buyer had initially accepted a manufacturing period of 12 weeks when the order was placed.
CA Paris, 20 December 2019, LawLex202000007JBJ

Legal guarantee of conformity: Rescission
The consumer is entitled to return the non-compliant good and to recover the sale price when the seller offers to replace it within a period of 12 weeks, whereas in application of Article L 217-10 of the Consumer Code the latter has only one month in which to deliver a replacement to the buyer’s home.
CA Paris, 20 December 2019, LawLex202000007JBJ

Deception: Substantive qualities
A professional seller of puppies is guilty of aggravated deception as to the substantive qualities of the goods – in this case, dogs from Slovakia allegedly in good health on the basis of a certificate of good health and an international animal health certificate – for the sale of two non-vaccinated puppies that can carry potentially deadly viruses which are transmittable to humans or animals, such as rabies, and whose actual age did not correspond to the information on the sales certificate, which made their subsequent vaccination ineffective as it was carried out too early, and posed a risk for the health of humans and animals.
Court of Cassation, criminal chamber, 3 December 2019, LawLex2020000013JBJ

Liability for defective products: Defective presentation/information
A product is defective when its directly accessible visual aspect does not meet the safety conditions of Article 1245 of the Civil Code in respect of the average user.
CA Montpellier, 10 December 2019, LawLex201900001569JBJ

Liability for defective products: Lack of proof
The fact that the leaflet inserted in the packaging of each hip prosthesis does not contain a contra-indication relating to the risk of rupture in the case of overweight patients or mention any risk of rupture in the course of normal use, that it has not been demonstrated that the operating technique used and the type of equipment chosen by the surgeon had any marked impact; and that there is no mention of a fall or impact suffered by the patient or any inappropriate conduct by the latter which may have caused or contributed to the rupture – constitutes a series of serious, accurate and consistent presumptions establishing proof of the defective nature of the hip prosthesis in question whose femoral head ruptured 10 months after the hip operation, which is much shorter than the average fifteen-year duration of prosthetic implants.
CA Toulouse, 9 December 2019, LawLex201900001571JBJ

Liability for defective products: Person liable
The forwarding, by the person in charge of the bicycle workshop to his hierarchical superior, of the victim’s complaint concerning the lack of safety of a new bicycle bought seven days previously, does not constitute acknowledgment of the liability by the manufacturer.
CA Toulouse, 3 December 2019, LawLex201900001570JBJ

Liability for defective products: Compliance with standards
The producer can be liable for the defect even when the product was manufactured in compliance with accepted practices and existing standards or it has obtained an administrative authorization, and therefore continued sale of a prosthesis and the fact that it has not been withdrawn from the market cannot rule out the possibility of a defect.
CA Toulouse, 9 December 2019, LawLex201900001571JBJ