The exponential growth of e-commerce in France (and around the world) has brought about a number of upheavals in the practices of consumers and trade professionals alike.
E-commerce is a highly regulated activity, and must comply with a number of rules.
When a law is not precise enough to apply to a particular case, judges are free to adapt it to provide a satisfactory response to the problem.
As e-commerce raises new questions, many judges have to consider these cases, and e-commerce jurisprudence grows with each new decision.
What is jurisprudence?
Jurisprudence is the body of legal decisions handed down by various courts and tribunals in response to the same question. 
This body, whether a court or tribunal, will be responsible for deciding which rule should apply to the case under consideration.
Sometimes, a rule of law may not be totally appropriate or precise enough for a given situation.
In such cases, a new rule of law may be enacted, either implicitly or explicitly.
In such cases, a new rule of law may be enacted, either implicitly or explicitly, to provide clarification or interpretation adapted to the case in question.
In making their decisions, the authorities concerned base themselves both on established legislation and regulations, and on the various solutions handed down by the courts.
In this way, the same answer can be given to the same legal problem by different judges.
Case law is therefore a source of law, supplementing, explaining and clarifying laws and legal rules that are not sufficiently precise or too general to resolve specific problems.
A decision that settles a specific case for the first time and is then repeated several times becomes case law, because it creates a new rule of law.
Not all court decisions carry the same weight.
- The role of the Cour de cassation is to regulate and unify decisions.
- Court decisions are generally considered to be of lesser importance, even if they are important.
In practice, even if judges remain totally free to make their own decisions and may not follow case law, they tend to align themselves with the solutions proposed by the Cour de cassation.
What does the law say about e-commerce?
While commercial law naturally applies to e-commerce, this field is subject to certain specific rules.
Unlike traditional commerce, when you place an order on a website, you are rarely, if ever, in direct contact with the merchant.
What’s more, you can only rely on the product descriptions on the site, since you can’t touch or examine them yourself.
Although mail-order sales have been around for a long time, the growth of e-commerce has necessitated a special legislative framework.
Beware of commercial practices
Naturally, as with any commercial practice, the proposed activity must never be unfair, misleading or aggressive.
In short, your commercial practice must not lead consumers to a purchasing decision they would not otherwise have made.
The product offered must therefore correspond to the product actually sold, and any advertising must reflect reality and not come close to harassment with a view to obtaining an order.
Consumer information obligation
There is an obligation to provide consumers with information specific to e-commerce.
The consumer must have direct access to information concerning the conditions for exercising the right of withdrawal (deadline, procedures, cost of return, etc.), the professional’s contact details, the steps to follow to conclude a contract or order, and the means of accessing the commercial rules concerning the offer.
The right of withdrawal
The right of withdrawal allows the consumer to cancel a contract or an order.
The deadline is fourteen calendar days.
From the day following receipt of the goods or conclusion of the contract, the consumer has this period in which to request cancellation of the contract or sale.
If, within these fourteen days, the consumer does not have all the information required by law, a new fourteen-day period will begin on the date on which this information is provided.
Delivery time
The date and time of delivery of the good or service must be clearly indicated.
If this information is missing, the professional must ensure delivery within thirty days of the sale at the latest.
If delivery has not been made by the agreed date, the customer may require the trader to deliver within a new time limit.
If the new deadline is not met, the customer has the right to request cancellation of the contract and reimbursement of any sums paid.
Contract conclusion and performance
The order must be unambiguous.
When validating the order, the customer must be informed that he/she undertakes to pay the amount due.
If the professional is unable to execute the order or deliver the goods, he may be liable to penalties.
Only a case of force majeure or a fault on the part of the consumer can exonerate the professional from part of his or her obligations.
Please note, however, that force majeure is rarely accepted, as the professional must ensure that the goods offered for sale are available when the order is placed.
If this is not the case, he must find a satisfactory alternative for the consumer.
E-commerce case law
Case law in the e-commerce sector covers a wide range of areas.
Naturally, there have been a number of convictions for deceptive commercial practices.
These range from products that don’t conform to the description to listing a competitor’s network in such a way as to give the impression that the online store is part of it.
This is the case, for example, of Pharmaket, which was condemned on November 7, 2019 by the Versailles Court of Appeal.
It listed competing pharmacies in its directory in order to lead consumers to believe that all the pharmacies belonged to the same network.
Numerous court rulings have also set the precedent for general terms and conditions of sale.
Over the past two years, several reforms have modified the consumer code and contract law.
As a result, many e-commerce sites have had to revise and update their general terms and conditions of sale to comply with the law.
Online advertising and the use of collected data (Autorité de la concurrence opinion n°2018-A-03 of March 6, 2018), infringements of free competition, contract retraction, online sales restriction (Cour de cassation, decision n°16-15.067 of September 13, 2017) and naturally compliance with the RGPD are all subjects that have led to the creation of case law in the e-commerce field.
To conclude on e-commerce jurisprudence
E-commerce must comply with current legislation.
As legislation is not always specific to e-commerce, e-commerce jurisprudence has grown considerably in recent years.
If you need assistance with your e-commerce project, don’t hesitate to contact me via my contact form. As a freelance Prestashop & Woocommerce developer and e-commerce consultant for over 10 years, I’d be delighted to talk with you to help you move your online store project forward.
