NEWS

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09-01-2019

 

A professional can benefit from the right of withdrawal for

creating a professional website

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While consumer law mainly contains provisions protecting consumers in their relations with professionals, the latter can still benefit from some of its protective rules when concluding a contract related to their professional activity. This is the case with the 14-day right of withdrawal, the benefit of which is extended to professionals who conclude a contract concluded off-premises, provided that the subject of these contracts does not fall within the scope of their main activity and that this professional employs less than five employees (article L. 221-3 of the Consumer Code).

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However, consumer law does not define what is covered by the notion of main activity. The Court of Cassation recently adopted a restrictive interpretation of this concept which is favorable to the professional who is offered an off-premises contract (Cass. Civ. 1ère, September 12, 2018, appeal no. 17-17.319).

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In this case, an architect had signed, outside the establishment, a contract for the creation and operating license of a website for the purposes of her professional activity before denouncing it within the 14-day withdrawal period. The co-contracting party then refused to take this withdrawal into account and sued the architect for payment of the price of his service.

The Douai Court of Appeal dismissed the co-contracting party's request and considered that the creation of a website for a professional, even if this site is linked to his professional activity, does not fall within the scope of his primary activity.

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In support of its appeal, the company has therefore argued that this contract falls within the scope of the main activity of the architect since he participates in the satisfaction of the needs of his professional activity, of which the promotion is a part. of his professional activity.

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The Court of Cassation dismissed this appeal, considering that commercial communication and advertising via a website do not fall within the scope of a professional's main activity. Therefore, an architect who has less than five employees can benefit from the right of withdrawal provided for in Article L. 221-3 of the Consumer Code when he concludes a contract relating to the creation of a website outside the establishment, regardless of the promotional purpose pursued by this contract.

 

RolandRinaldo, lawyer, Cabinet ARTLEX Nantes

JeansOrious, lawyer, Cabinet ARTLEX Nantes

 

Court of Cassation, 1st civil chamber, September 12, 2018, appeal n°17-17.319, concept of consumer, concept of professional, concept of contract falling within the main field of activity of a professional, creation of a website linked to the professional activity, contract concluded outside the establishment, right of withdrawal