To encourage distance selling within the domestic market, a European directive in 2011, imposed rules that are often more protective of consumers than those of the Member States. In terms of delivery, it therefore provided that the “Risk of loss or deterioration »Of the goods, during transport, must be borne by the seller, and not by the buyer (Article 20).
To do this, the “Risk transfer” only intervenes when the latter takes “Physically possession” of the good he ordered – which, in France, does not comply with the provisions of the Civil Code (article 1196) whereby “The transfer takes place when the contract is concluded”.
The Villeurbanne (Rhône) district court disregarded this rule, transposed into the consumer code (article L. 216-4) by the Hamon law of March 17, 2014, when it has, June 12, 2019, unsuccessful litigant, Quentin His. He asked that the company Broderie de Lomagne be ordered to reimburse him for an order never received (100 euros) and to pay him damages (200 euros). He had, on December 2, 2017, purchased personalized t-shirts from her website, Tunetoo.com.
Fifteen-day period
Under the terms of the general conditions of sale, Mr. His had to be delivered within fifteen days by the Colissimo company, which was supposed to drop his package in his letter box. However, at the end of December 2017, he still had not received anything. The seller, assuring that he had sent him the goods, had refused to reimburse him. Mr. His had therefore sent him a registered letter asking him to do so. Alas, this letter, too, had been lost! What La Poste had recognized, by paying him regulatory compensation of 16 euros.
The court, confusing compensation for the letter and compensation for the package, believed that Colissimo had “Implicitly admittedt “ have lost the latter. He considered that the seller was “Not responsible” of the failure of the delivery man and judged… that he did not have to compensate his customer.
Mr. His, who is a lawyer, “Then decide not to stop there” and to appeal in cassation. His advice, Me Gilles Thouvenin, claims that the court violated Article L. 216-4 of the Consumer Code, under which “ the seller must bear the risk of loss of the package until it takes physical possession by the purchaser ” : he could not rule as he did, although he had “Noted” that Mr. His never had “Physically taken possession” of the parcel.
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