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Unfair clauses: what is deemed unwritten is imprescriptible – Contract and obligations

The protection offered by consumer law in terms of unfair terms continues to occupy the first civil chamber of the Court of Cassation. After recalling that the principle of temporal concentration of the claims in question of appeal of article 910-4 of the code of civil procedure is not applicable to him (Civ. 1D2 Feb 2022, n° 19-20.640, Dalloz news, 8 Feb. 2022, ob. C. Helaine; D. 2022. 277 ), the high court continues to knit a tailor-made regime that goes beyond the legal specifications and respects the – let’s say it – fairly high requirements of the Court of Justice of the European Union (CJEU) on the subject. By its judgment delivered on March 30, 2022, the First Civil Chamber takes note of the latest case law of the Court of Justice (CJEU June 10, 2021, cases C-776/19 to C-782/19, Dalloz news, July 9 2021, obs J.-D. Pellier; D. 2021. 2288 note C. Aubert de Vincelles ; Same. 2022. 310, ob. R. Boffa and M. Mekki ; Same. 574, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; RDI 2021. 650, obs. J. Bruttin ; RTD com. 2021. 641, ob. D. Legal ) by offering a particularly important solution in contract law, especially consumer law.

The facts are known because the case is part of a certain legal saga: on December 16, 2008 and October 5, 2009, a bank granted several home loans to individuals denominated in foreign currency (Swiss francs) but repayable in euros (these are the famous “Helvet Immo” loans). These loans have, in this case, for interest the financing and the acquisition of apartments and parking spaces. By deed of January 19, 2012, the borrowers sued the bank for breaches of its obligations, in particular on the concrete functioning of the financial mechanism in question. Later, the plaintiffs in the proceedings raise the abusive nature of certain clauses of the two loan contracts. The case gave rise to a first judgment rendered by the Paris Court of Appeal on September 29, 2016, then to a first judgment by the Court of Cassation (Civ. 1DMay 16, 2018, n° 17-11.337, Dalloz news, June 5, 2018, obs. J.-D. Pellier; D. 2018. 1069 ; Same. 2106, ob. DR Martin and H. Synvet ; Same. 2019. 279, ob. Mr Mekki ; Same. 607, ob. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; Same. 607, ob. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; AJ contract 2018. 330, obs. J. Lasserre-Capdeville ; Euro RTDs. 2019. 410, ob. A.Jeeauneau ) already noticed at the time. In 2018, the first civil chamber was able to specify with regard to this judgment of appeal “that it was incumbent upon it, assuming that the disputed clause does not define the main object of the contract or, in the contrary case, that it is not written in a clear and understandable manner, to determine automatically whether the exchange risk did not weigh exclusively on the borrower, and whether, consequently, the said clause did not have the purpose or effect of creating a significant imbalance between the rights and obligations of the parties to the contract (our underlining), taking up for the occasion the famous solution resulting from the judgment Pannon (ECJ June 4, 2009, case C-243/08, D. 2009. 2312 note G. Fishmonger ; Same. 2010. 169, ob. N. Fricero ; Same. 790, obs. H. Aubry, E. Poillot and N. Sauphanor-Brouillaud ; Rev. Prat. rec. 2020. 17, ch. A. Raynouard ; Civil RTD. 2009. 684, ob. P. Remy-Corlay ; RTD com. 2009. 794, ob. D. Legal ). Here is the case a second time before the Paris Court of Appeal, differently composed, which declares inadmissible because prescribed the requests tending to see various clauses characterized as abusive clauses within the meaning of article L. 132-1 of the code of consumption then applicable to facts prior to Ordinance no. bank thus incurring its contractual liability on the basis of article 1147 of the old civil code, applicable to the case whose facts predate ordinance n° 2016-131 of February 10, 2016 and its application on 1East October 2016.

The borrowers are therefore appealing in cassation, arguing, on the one hand, that the mechanism resulting from Article L. 132-1, which has become L. 212-1 and L. 241-1 of the Consumer Code, cannot fall under the five-year prescription. On the other hand, they consider that the court of appeal of reference deprived its decision of legal basis on the contractual responsibility. However, in the meantime, the so-called “Helvet Immo” cases have swarmed into the litigation raising questions more or less close to this situation, so that several courts have decided to ask questions for a preliminary ruling, in particular on the prescription applicable to Article L 132-1, now L. 212-1, of the consumer code. A stay of proceedings is therefore pronounced on November 25, 2020 to await the decisions of cases C-609/19 and C-776/19 to C-782/19. The judgment rendered on March 30, 2022 by the…

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