Adhesion Contract versus Consumer Law, uncompetitive situation !

I Consumer Law

1/ Definition of consumer law:

According to the Consumer Code, according to its introductory article: Consumer law is the subject matter that governs the relationships between a:

1° Consumer: i.e., any natural person acting for purposes that are outside the scope of their commercial, industrial, craft, liberal, or agricultural activity;

Or a,

2° Non-professional: i.e., any legal entity not acting for professional purposes;

And a,

3° Professional: any natural or legal person, public or private, acting for purposes that are within the scope of their commercial, industrial, craft, liberal, or agricultural activity, including when acting in the name or on behalf of another professional;

Or a,

4° Producer: i.e., the manufacturer of a good, the importer of a good into the European Union, or any other person who presents himself as a producer by affixing his name, trademark, or other distinctive sign to the good;

The introductory article describes the areas where consumer law applies:

In addition to commercial, industrial, craft, liberal, or agricultural activities and materials, including the majority of goods; there are also the provision of services in the aforementioned areas, but also, and in addition,:

5° Goods containing digital elements: any tangible movable property that incorporates digital content or a digital service or is interconnected with such content or service, in such a way that the absence of this digital content or digital service would prevent the good from fulfilling its functions;

6° Digital content: data produced and provided in digital form;

7° Digital services:

II Scope

2/ Consumer law for what purpose?

Well, in my opinion, if consumer law was born at the beginning of the last century, with the emergence of industrial society and the presence of mass-produced products, it is above all adhesion contracts that necessitate or even promote consumer protection. Why? Quite simply because adhesion contracts allow no choice: you either sign or you don't, thus, negotiation is excluded in principle. Many will say, then, that an adhesion contract is simpler for everyone; a company, even if it has millions of customers, won't negotiate every condition with them, otherwise it becomes impossible.

I think the scale economy that provide "Adhesion contract " is at the end of the scheme because the big comapnies don't want to share the value added with consumer the unique reason of their existence. I think a real competition is the building or a numerous little companies (See "Bell company" case), rather than big companies. It will be profitable for a multitude of product and employment. Unfortunately, the states choose equal counterparts.

Normally, the market must be fragmented otherwise it is concentrated de facto otherwise in law.

However, with the advent of digital technology and the industrialization of procedures, this is not impossible. There is even the possibility, especially in cases where the company has thousands or even millions of customers, to freely negotiate its contract. I will come back to this in another article; that is not the point.

Therefore, consumer law proves useful in a situation where the consumer starts from a lower level, given the financial and economic standing of their counterpart, and cannot freely negotiate their terms. However, Article 1101 of the Civil Code is clear:

"A contract is an agreement by which one or more persons bind themselves, towards one or more others, to give, to do, or not to do something."

And Article 1102 of the Civil Code continues:

"Everyone is free to contract or not to contract, to choose their contracting party, and to determine the content and form of the contract within the limits set by law.

Freedom of contract does not allow for derogation from rules that affect public policy." »

However, the adhesion contract calls these principles into question. Even though the legislature and the courts have validated this concept of contract. Originally established between professionals only, it was expanded at a time when information technology was not yet democratized and accessible to all.

Well, as I pointed out, in the digital and AI era, anything is possible, even negotiating with millions of consumers almost simultaneously. How do I see it?

To be continued in a future article.

Author

Vidal Bravo - Jandia Miguel

Ingineer - Master II in law

Consumer law centre - Training and research unit / Montpellier I

Panthéon Assas - Paris II