The duty to communicate decisive information

The pre-contractual obligation to provide information, enshrined in Article 1112-1 of the Civil Code since the 2016 reform of contract law, continues to be the subject of essential case law clarifications. By a rejection decision published in the Bulletin dated 14 May 2025, the Commercial Chamber of the Court of Cassation recalls and clarifies the cumulative conditions for the implementation of this duty, while reaffirming the scope of the sovereign assessment of the trial judges as to the decisive nature of information for the consent of a co-contractor.

In this case, a sale of all the shares of a company operating a fast food business was concluded on 18 September 2018. Subsequent to the transfer, the transferee and the acquired company, complaining of an intentional concealment by the transferor of the impossibility of carrying out a frying activity in the commercial premises, summoned the latter for compensation on 12 February 2020.

The Reims Court of Appeal, by a judgment of 2 May 2023, rejected their claims. The assignee and the company then filed an appeal in cassation, arguing that the impossibility of frying, as part of a fast food activity, constituted information whose importance was by nature decisive and which should have been communicated.

The question put to the Court of Cassation was therefore whether the duty of pre-contractual information requires the communication of any information having a direct and necessary link with the content of the contract, or whether the party relying on it must also prove that this information was subjectively determinative of its own consent.

The Court of Cassation dismissed the appeal, validating the reasoning of the Court of Appeal. It considers that Article 1112-1 of the Civil Code imposes a double condition: the information must not only have a direct and necessary link with the content of the contract or the quality of the parties, but also be of decisive importance for the consent of the other party.

It is therefore appropriate to set out the arguments of the assignee, who argued for an extensive conception of the duty of information (I), before analysing the rigorous solution of the Court of Cassation, which enshrines a strict interpretation of the cumulative conditions of this duty (II).

The assignee’s argument: an extensive conception of the duty to inform

In support of its appeal, the assignee developed an argument aimed at acknowledging a breach by the assignor of its obligation to provide information, relying on the one hand on the allegedly essential nature of the undisclosed information (A) and on the other hand on a reversal of the burden of proof (B).

The purportedly intrinsically determinative nature of the information

The appellant argued that the determinative nature of the information on operating restrictions stemmed from the very nature of the business being divested. According to the first part of the plea, the Court of Appeal should have deduced from the company’s corporate purpose (“fast food”) and the terms of the commercial lease (mentioning “fast food, takeaway and delivery” and the presence of a hood) that any restriction, such as a ban on frying, de facto constituted decisive information for the acquirer’s consent. In other words, the information was objectively essential and did not have to be the subject of proof of its subjective importance to the assignee.

In the second part, the trial judges were criticized for not having investigated whether the restrictions resulting from the co-ownership regulations and the opposition of the neighbors to the installation of an adequate extraction system did not have a “direct and necessary link with the content of the contract”. According to this logic, the existence of such a link would suffice to qualify the information as determinative and to impose its disclosure, without it being necessary to go further in the analysis of the acquirer’s consent. This argument tended to merge the two conditions laid down by Article 1112-1 of the Civil Code.

Alleged concealment and burden of proof

The appeal also challenged the decision on the ground of concealment and burden of proof. The third part of the plea argued that the Court of Appeal had not sufficiently investigated whether the transferor had not concealed the inadequacy of the extractor hood present on the premises, which was decisive information. This grievance amounted to a criticism for fraudulent reluctance, under Article 1137 of the Civil Code.

Finally, and conventionally in this regard, the fourth branch invoked a reversal of the burden of proof. The assignee recalled that it is the responsibility of the party who knew the information (the assignor) to prove that it provided it, in accordance with paragraph 4 of Article 1112-1. By requiring the assignee to demonstrate that the information had been concealed from it, the Court of Appeal allegedly violated this text as well as Article 1353 of the Civil Code.

All of these means were aimed at obtaining a broad application of the obligation of information, where the link of the information with the contract would entail a presumption of its determining nature. It is this approach that the Court of Cassation firmly rejected.

The solution of the Court of Cassation: the consecration of cumulative conditions and the sovereign control of the trial judges

In dismissing the appeal, the Commercial Chamber gives a strict and educational reading of Article 1112-1 of the Civil Code. It recalls that the conditions laid down by the text are indeed cumulative (A) and that the assessment of the decisive nature of information falls within the sovereign power of the trial judges (B).

Reminder of the dual cumulative condition of Article 1112-1

The Court of Cassation states in a preliminary and didactic way the guiding principle of its decision: “It follows from Article 1112-1 of the Civil Code that the duty of pre-contractual information relates only to 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“. The use of the conjunction “and” is fundamental here. The Court refuses to consider that the first condition (direct and necessary link) can encompass or presume the second (determining character).

Consequently, it finds the first part of the plea unfounded because it “postulates that the duty of information relates to any information having a direct and necessary link with the content of the contract”, which is an incomplete reading of the text. Information, even if intrinsically linked to the purpose of the contract (such as a method of operating a business), is not necessarily to be disclosed if it is not decisive for the acquirer’s consent. The Court thus clearly distinguishes the objective scope of the information (its link to the contract) from its subjective impact (its importance for the contracting party).

Confirmation of the sovereign power to assess the determining nature

The heart of the decision lies in the validation of the assessment of the trial judges. The Court of Cassation notes that the Court of Appeal held “that it was not established that the possibility of frying was a determining condition for the consent of Mr. [T]” . This finding of fact, which falls within the sovereign discretion of the trial judges, is sufficient in itself to justify the rejection of the application.

As soon as the decisive character is not proven by the person invoking the breach, the other conditions and grievances become inoperative.

In conclusion, this judgment, intended for publication in the Bulletin, is an important reminder for practitioners. It confirms that the implementation of the pre-contractual obligation of information is subject to a double cumulative proof. The party claiming to be the victim of a lack of information must not only establish the link of the information with the contract, but above all demonstrate, by elements of fact left to the sovereign discretion of the trial judges, that this information was a sine qua non condition of its commitment. The nature of the activity or the object of the contract alone is not sufficient to presume this determining character.

(Court of Cassation, Commercial Chamber, May 14, 2025, 23-17,948 23-18,049 23-18,082, Published in the Bulletin)