In: Business and Management

Submitted By moimarina
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Bien évoquer l’obligation d'information du professionnel, de la règlementation sur les clauses abusives

. Modalités d'échange des consentements

Consentements échangés par correspondance
Pour les contrats courants (n° 11800), les parties échangent leur consentement par lettres (pour un exemple, Cass. com. 29-11-1994 : RJDA 3/95 n° 246), télex (pour un exemple, Cass. com. 25-5-1988, inédit), télégrammes ou télétransmission (n° 75503). L'offre d'un bien, d'un produit ou d'un service doit être faite en langue française, sous peine d'une amende de 750 € (Décret 95-240 du 3-3-1995 art. 1, I-1° et 4, al. 1 et 2 ; C. pén. art. 131-13), mais cette obligation ne peut être imposée dans le commerce entre Etats membres de l'Union européenne que dans le but de protéger le consommateur et doit donc être limitée aux mentions auxquelles l'Etat qui l'a prescrite attribue un caractère obligatoire (CJCE 3-6-1999 : RJDA 11/99 n° 1281).

Les contrats conclus par téléphone sont considérés comme formés dès l'instant de l'échange verbal des consentements par voie téléphonique (Cass. req. 14-5-1912 : D.P. 1913.1.281 note Valéry). On ne saurait néanmoins trop recommander aux parties qui procèdent à une telle conclusion de convenir de rédiger en termes identiques une note sur les conditions du contrat et d'échanger entre elles cette note pour établir la preuve de leur accord. Sur l'enregistrement des conversations téléphoniques, n° 75812.
Sur l'envoi d'un courrier recommandé électronique pour la conclusion ou l'exécution d'un contrat : Décret 2011-144 du 2-2-2011.

L'échange des consentements ne peut se produire que si les conditions suivantes sont remplies :

- l'offre de contracter, entre commerçants, doit indiquer clairement la volonté de son auteur d'être lié en cas d'acceptation (Cass. com. 6-3-1990 : JCP G 1990.II.21583 note Gross) ; mais dès lors que l'offre…...

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