Recommandation 4-2018

Recommendation 4: “With regard to door-todoor selling, the supplier must ascertain that its customers have the legal capacity to contract”

0- Follow-up to the recommendation

ENGIE Grand Public has planned to update its Supplementary Terms of Sale in late May or early June 2019.

1- Observation

The claimant referred a matter to the Mediation service in her capacity as the guardian of a customer. During a door-to-door selling visit by an ENGIE DGP subcontractor, the lady customer took out a contract with supplier ENGIE. But she did not have the legal capacity to do so, as she was protected by her guardian. The contract could only be signed by her guardian, as provided for by law.

2- Mediation solution

At the request of the Mediator, supplier ENGIE cancelled the contract. The related billing was naturally cancelled, and the supplier was not allowed to bill usage for the period from the start of the subscription to its cancellation.
After the usage billed under the contract was cancelled, the costs of activation and cancellation and the costs of the customer’s subscription were also cancelled. The supplier ENGIE acknowledged the error relating to the customer’s capacity to contract.

3- Generic observation

With regard to door-to-door selling, the selling process implemented, and more particularly the ENGIE supplier’s Supplementary Terms of Sale, does not include any clauses protecting vulnerable persons. In this particular case, there is no clause ascertaining whether the Customer is under legal wardship or guardianship. Any contract entered into by a person not having legal capacity is null and void. The nullity of the contract entails its retroactive disappearance; the supplier must then cancel all issued bills and reimburse the customer.

4- Recommendation / Generic solution

The supplier must improve its selling process by raising salespersons’ awareness of the risk of a customer being placed under legal wardship or guardianship. The supplier must also modify its Supplementary Terms of Sale to enable it to ascertain the customer’s legal capacity to contract without the downstream of a potential guardian. Although the risks of nullity remains, this process will allow the supplier to provide evidence of its good faith if suspected of abuse of weakness.

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