General terms and conditions of sale in a foreign language: are they enforceable against French customers?
Court of Cassation, First Civil Chamber, 7 June 2023, no. 22-12.916, Unpublished
Baptiste Assié – Paris, 23 June 2023. You’ve never read them and yet you agreed to them. These days, general terms and conditions of sale are used by all international e-commerce sites. Yet some still don’t bother to translate them into their customers’ language. Far from penalising such a practice, the Cour de cassation ruled that the mere fact that a text is written in a foreign language is not sufficient to render it unenforceable against the customer, even if the exchanges between the parties were exclusively in French. Explanations.
The facts were as follows: between 2014 and 2018, a French motorhome manufacturer and retailer regularly placed orders with a German supplier for panoramic roof windows. All their exchanges were in French.
When a dispute arose between the parties, the French company sued the German company before the French courts. However, the German company raised a plea of lack of jurisdiction based on its general terms and conditions of sale, which contained a clause conferring jurisdiction on the German courts.
However, in a ruling handed down on 18 November 2021, the Grenoble Court of Appeal declared itself competent to hear the case, on the grounds that the general terms and conditions of sale (including the jurisdiction clause) were drafted in German, that the parties traded exclusively in French and that the text could not therefore be enforced against the French company because it was contrary to their commercial practices.
Not content with this decision, the German company appealed to the French Supreme Court, arguing that the duration of its relationship with the French company necessarily implied adherence to its general terms and conditions of sale.
The Court of Cassation therefore had to answer the following question: are general conditions of sale drafted in a foreign language enforceable against a French company notwithstanding the exclusive use of French in its dealings with the foreign company?
In a ruling dated 7 June 2023, the Court of Cassation ruled in the negative, upheld the German company’s claims and quashed the ruling.
The Court held that the lower courts had not sought “to ascertain the existence of a legal right”. whether, notwithstanding the use of a foreign language, the commercial relations between the company [allemande]and the company [française]over the period 2014/2018 did not characterise a repeated practice between the parties from which tacit consent to the general terms and conditions of sale could be deduced, including the jurisdiction clause “.
This decision shows that the use of a foreign language in the general terms and conditions of sale by a foreign trader does not in itself render these terms and conditions unenforceable against his customers, even if the trader uses his own language to communicate with his customers. It should be noted, however, that such a clause may be challenged on other grounds, in particular on the grounds that it is unfair.