Communicating General Sales Conditions in the hospitality sector
The obligation to communicate General Sales Conditions (“GSC”)
There is no per se obligation to communicate GTCs to a customer.
If your customer is a professional, Article L. 441-1 of the French Commercial Code applies: “any person engaged in production, distribution or service activities who draws up
general terms and conditions of sale is required to communicate them to any buyer who requests them for a professional activity”.
This means that GTCs must only be provided at the request of the business customer, and only if GTCs exist.
If your customer is a consumer, then Article L 111-1 of the French Consumer Code applies. This sets out a list of information that you must provide to your customer before concluding a contract. This information may be provided in the form of a general terms and conditions of sale, or in any other form.
Although the drafting and communication of GTCs is not compulsory, it is strongly recommended, and is standard practice in the business world. In the event of a dispute with a customer, your GCS will protect you.
However, if you have drawn up GTCs and wish them to apply, in accordance with article 1119 of the French Civil Code, you must :
(i) to have brought them to your customer’s attention
(ii) And your customer must have accepted them
The form of communication of the GCS to a customer
The most common way of communicating GTCs to a customer is electronically. This poses no particular problem, as long as you can ensure that the customer accepts them.
For example, when ordering over the Internet, it is customary to have the customer tick a box indicating that he “accepts the
General Terms and Conditions of Sale”, while indicating where he can read them if he has not yet done so.
Acceptance of the General Terms and Conditions may also be evidenced by a signature on an order form, stating that the customer has read and accepted the General Terms and Conditions.
To ensure the enforceability of each clause, they must all appear in the General Terms and Conditions accepted at the time of signature. The fact that a condition was included or known when a previous contract was concluded, for example, is not sufficient to render it enforceable in a more recent contract.
Similarly, no clause may be included in an appendix to the contract or to the GTC that has not been signed or electronically accepted by the customer.
Please note that some clauses are subject to special formalities.
Because of their sensitive nature, they must be presented with particular care. This is the case, for example, with the retention of title clause, which must be agreed in writing, at the latest, at the time of delivery.
If you would like to draw up or revise your General Terms and Conditions of Sale, or if you would like advice on how to present them to your customers and obtain their consent, please do not hesitate to contact us.
