The commercial chamber, mouthpiece of the law: regarding a judgment of May 14, 2025, concerning the pre-contractual duty of information (Article 1112-1 of the Civil Code)

On May 14, 2025, the Commercial Chamber of the Court of Cassation delivered a significant judgment (Appeal No. 23-17.948 | Court of Cassation) concerning the scope of the pre-contractual duty of information, under Article 1112-1 of the Civil Code.

In a dispute between the assignee of a company holding a fast-food business – who complained of being unable to fry due to requirements related to the co-ownership regulations and strong opposition from the occupants to the installation of any smoke extraction or ventilation system that had been concealed from him… – and the assignor, the commercial chamber dismisses the appeal of the former and rules in favor of the latter.

The court of appeal had sovereignly held “that it was not established that the possibility of frying was a determining condition for the consent” of the assignee.

Therefore, the commercial chamber rules that the assignor could not be reproached for any breach of his pre-contractual duty of information even though the company was engaged in fast food activities and the lease seemingly mentioned the presence of an extractor hood.

In this landmark decision – published in the Bulletin and honored on the information site of the Court of Cassation -, the Commercial Chamber states that: “6. It follows from Article 1112-1 of the Civil Code that the pre-contractual duty of information only concerns information that has a direct and necessary link with the content of the contract or the quality of the parties, and whose importance is decisive for the consent of the other party” (emphasis added).

While initial comments tended to emphasize a tightening of the case law on the issue, it seems to us, on the contrary, that the judge is here, in accordance with Montesquieu’s wish, merely “the mouth of the law.”

It suffices to briefly revisit the genesis of this provision to be convinced.

This is illuminated by a simple comparison between, on the one hand, the draft of Article 1129 from the draft ordinance of February 25, 2015, submitted for public consultation, and, on the other hand, the current Article 1112-1 of the Civil Code resulting from the ordinance of February 10, 2016, on contract reform (and not modified by the ratification law of April 20, 2018).

We had feared that the initially vague wording provided for in Article 1129 of the draft ordinance would create legal uncertainty, which the legislator intended to combat through the recodification of a praetorian and unpredictable contract law (in “Benevolent Views on the Draft Reform of Contracts”, dep247_article_philippedupichot_mai2015_0.pdf, spec. p 44). Driven by an ambitious conception of pre-contractual loyalty, the draft ordinance indeed provided that ” the party to the contract who knows or should know information whose importance is decisive for the consent of the other must inform them as soon as, legitimately, the latter is unaware of this information or trusts their co-contractor “. However, it is precisely because this wording was too “generous” and threatened the attractiveness of French law that, following high-level arbitrations, the legislator took into account the feedback from consultations and inserted strict conditions for the recognition of such a duty.

Hence the carefully crafted drafting of Article 1112-1 which, while retaining the substance of the draft ordinance in its first paragraph (“the party who knows information whose importance is decisive for the consent of the other must inform them as long as, legitimately, the latter is unaware of this information or trusts their co-contractor“), was enriched in its final version with three safeguards in paragraphs 2 to 4:

• first safeguard (paragraph 2), the exclusion of the estimation of the value of the service (“this duty of information does not concern the estimation of the value of the service”); this is a confirmation of the so-called “Baldus” case law (Cass. civ. 1^st May 3, 2000, No. 98-11.381) whose objective is to ensure the security of transactions by excluding from the scope of pre-contractual information an element that is nevertheless fundamental in the eyes of the parties;
• second safeguard, the characterization of information decisive for consent (paragraph 3): “information that has a direct and necessary link with the content of the contract or the quality of the parties is of decisive importance”; however, it is precisely this limitation of the scope of the duty of information, which directly relates to the first paragraph, that the Commercial Chamber merely reiterates here;
• third safeguard, of a probative nature (paragraph 4): “it is incumbent upon the party claiming that information was owed to them to prove that the other party owed it, with the burden on the other party to prove that they provided it; this is undoubtedly the most insidious as it practically leads to placing on the party invoking a duty of information the difficult proof of the meeting of its conditions cumulatively:
  • (i) information decisive, thus having a direct and necessary link with the content of the contract or the quality of the parties:
  • (ii) ignorance or trust placed in the contractor similarly legitimate;
  • (iii) information not based on the estimation of the value of the service).

The solution rendered by the Commercial Chamber is therefore fully justified and fortunate in two respects.

Firstly, because the Court of Cassation states the law here with clarity, scrupulously respecting both the letter and the spirit of the contract reform. Indeed, this is precisely the role expected of a Supreme Court in this regard.

Secondly, because Article 1112-1 of the Civil Code is of considerable scope since it is part of the general contract law, applicable in the absence of any contrary special provision. Thus interpreted, it is likely to ensure the security of countless contractual operations, starting with those of M, by containing unpredictability and preventing litigation.