Clearly personalised and right of withdrawal for a website

By a judgment of 17 October 2024, the Douai Court of Appeal ruled on the concept of clearly personalized property applied to a website with regard to the benefit of the right of withdrawal.

A dispute over the right of withdrawal in the creation of a website
 

In this case, a service provider approaches a company specializing in the towing of vehicles – acting in a non-professional capacity – in order to support it in the context of the creation and rental of its website. The contract concluded was an off-premises contract and included a waiver of the right of withdrawal.

Due to a contractual breach, the customer alleges that he has not validly informed of his right of withdrawal and sues the service provider to request the nullity of the contract. The service provider puts forward the plea according to which the contract for the creation of the website falls under the contracts for which the withdrawal period is not applicable, as long as the creation of the website met the customer’s specifications.

Exceptions to the right of withdrawal for a clearly personalised good

Indeed, it is first necessary to recall the general principle according to which a contract concluded remotely or off-premises between a professional and a consumer must give rise to the application of a withdrawal period of 14 days, pursuant to Article L121-18 of the Consumer Code.

Article L121-18 of the Consumer Code provides for cases of exclusion from the right of withdrawal, in particular in the presence of a contract for the supply of a good made to the consumer’s specifications or when the good is clearly personalized (Article L121-28, 3° of the Consumer Code).

To contradict the applicant, the claimant mainly puts forward three arguments. The first concerns the inapplicability of consumer law, the second concerns the novelty of the request and the third  concerns the inapplicability of the right of withdrawal to a contract for the supply of a personalised good.

The Court of Appeal’s analysis of the right of withdrawal

First of all, with regard to the first argument, the Court of Appeal recalls that Article L221-3 of the Consumer Code provides that certain provisions of consumer law, in particular the provisions relating to the right of withdrawal,  applicable to relations between consumers and professionals, are extended to contracts concluded off-premises between two professionals, provided that the subject matter of these contracts does not fall within the scope of the main activity of the professional solicited and that the number of employees employed by the latter is less than or equal to five. It deduces the applicability of the provisions on the right of withdrawal.

With regard to the second argument, the provider indicates that the applicant requested at first instance the resolution of the contract concluded on 22 October 2019, while on appeal he requested the nullity on a principal basis, and the resolution in the alternative. To reject this argument, the Court of Appeal recalls the case law of the Court of Cassation according to which, where claims are based on distinct legal bases, but tend to the same ends, namely the retroactive annulment of the disputed contract, the claim relating to a distinct legal basis must not be assessed as a new claim (Court of Cassation 1st Civil Chamber, 24 November 2021, appeal No. 19-19.036).

Is a website clearly personalised?

Finally, with regard to the third argument, the Court of Appeal finds that the contract in question is a contract providing for the creation of a “standard” showcase site (menu, articles, photos’), including a contact form, the creation and hosting of an email address and a database as well as a quarterly referencing follow-up. Some options have been “checked” in the proposed list: flash info, slideshow, newsletter, and testimonials.

In view of these elements, the Court of Appeal of Douai considers that these mentions alone do not demonstrate how the product would be made according to the specifications of the consumer or clearly personalized. Indeed, it considers that the service provider should have been able to justify a specification or specific instructions specific to the will of the client, which prevents the qualification of clearly personalized.

In any event, the Douai Court of Appeal specifies that even if this contract concerned a clearly personalized property, the nullity of the contract is incurred solely because the service provider has not informed the customer of the inapplicability of the right of withdrawal, which constitutes a breach of Article L221-5 of the Consumer Code.

References: CA Douai 17-10-2024 No.23/01154, Sté CKM Towing c/ Sté Cristal’Id