LWhen a consumer approached at home by a solar panel seller signs a purchase order, he enters into a triangular relationship: he enters into a contract with the seller, called a “principal”, then into a “dedicated credit contract” with a bank, for the same amount. When he signs the “delivery certificate” for the equipment, the bank sends the funds to the seller. The consumer must then repay his loan according to the planned schedule.
However, very often, he finds that the installation costs him more than it brings him, contrary to what the seller had promised. He can obtain from the courts that it cancels the main contract, because it is tainted by a procedural defect, with regard to the consumer code. The credit contract is then automatically canceled (consumer code article L312-55).
The seller is supposed to take back his panels and refund the price to the consumer, who must only repay this capital to the bank (without interest): a white operation for everyone. But when the seller has in the meantime been liquidated and has therefore disappeared from the triangle, the consumer is deprived of his claim, even though he still has a debt: a dramatic situation for him.
For a long time, the Court of Cassation ruled that if the bank had committed a fault, by releasing the funds without having verified the regularity of the main contract, the borrower could be discharged from this debt. But since the November 25, 2020 (19-14.908), she considers that the latter must also have suffered “harm causally linked to this fault”.
Causal link
Oddly enough, some appeal courts consider that the inability to recover his money from the insolvent seller does not constitute such damage: they consider that it is linked to the seller’s liquidation, without any causal link to the bank’s fault. However, this inability was first caused by the faulty payment, then by the seller’s compulsory liquidation. Without this initial fault, the capital would not have been lost (since it would never have been paid).
THE July 10 (2024), 22-24.754), the Court of Cassation therefore specified that, according to “the principle of equivalence of conditions”under which any wrongful act having contributed to the damage entails the liability of its author, “the inability of the borrower to obtain restitution of the price” East “a consequence of the bank’s fault in examining the main contract”The borrower therefore justifies a loss “causally linked to the bank’s fault”.
You have 20.26% of this article left to read. The rest is reserved for subscribers.