VSow can we prevent mail order companies, prosecuted for having organized unfair advertising lotteries, from escaping conviction by going into bankruptcy, then continuing their practices, under another corporate name? “By attacking the bailiff who gave them his deposit, when he should have refused”, answers Me Edouard Caupert, lawyer at the Paris bar and partner of UGGC Avocats.
In June 2013, he therefore simultaneously brought proceedings against the Belgian mail-order company D. Duchesne and the Nice bailiff office Franck-Bretaudeau-Eliaou-Albertini. He asked that they be condemned together, “Jointly and severally”, to pay to his client, Mme X, the sum of one million euros.
Between 2007 and 2012, this octogenarian received eighty-three letters from distance selling brands (Biotonic, TV Direct Distribution, TVD Santé, Notre Vie), all held by D. Duchesne, announcing that she was the winner. “Official” of sums the addition of which represents one million euros. Although she claims these winnings (and she orders for nearly 4,000 euros of merchandise), she will never get them: their allocation is subject to a drawing of lots, which should have been indicated in large print.
Already condemned
the May 6, 2021, the Montpellier Court of Appeal (Hérault) therefore applies the case law that the Court of Cassation has developed in 2010 (09-12.585), on the occasion of a dispute between, already, the company D. Duchesne and another “winner”: “In application ofarticle 1371 of the civil code, the organizer of a lottery who announces a win without showing, at first reading, the existence of a hazard, obliges himself (…) to deliver it. “
It reverses the judgment of first instance, which refused to add up the eighty-three announcements of winning, and only took into account the first three, on the grounds that in the fourth, Mr.me X “Could no longer believee “ in the existence of such promises. It condemns the company D. Duchesne to pay one million euros.
But it also condemns the study of bailiffs to pay this sum, jointly and severally. She considers that Me François Franck, already condemned by the Rouen Court of Appeal in 2003, “By giving his guarantee as a ministerial officer to the actions of the company D. Duchesne (…), has promoted, supported and given credibility to the maneuvers employed “ by the latter.
In the meantime, the Belgian company has gone bankrupt and the Nice partners have decided to liquidate their firm early. “But the joint sentence will have to be executed by the National Chamber commissioners of justice, which guarantees the professional liability of bailiffs », Assures Me Caupert. The heirs of Mme X, deceased, could then receive the announced earnings.