B2B vs Consumer Sales in France: How the Buyer's Status Changes the Rules

Why the buyer's status changes the rules in a B2B vs consumer sale in France

French law does not apply one uniform set of selling rules to every transaction. The same delivery of the same goods can be governed by very different regimes depending on a single fact: the identity of the buyer. This is the heart of the B2B vs consumer sale in France question. Where the buyer is a consumer, a protective body of rules in the Consumer Code (the Code de la consommation) is superimposed on the ordinary law of sale. Where both parties act for their business, the ordinary law of the Civil Code and the Commercial Code governs, and the parties enjoy far greater freedom to allocate risk between them.

For a foreign business selling into France, this distinction is not academic. It determines the warranties you owe, the length of time a buyer has to complain, who must prove that a defect existed, and whether the limitation-of-liability clause in your standard terms will survive a challenge. A clause that is perfectly effective against a professional buyer of the same trade may be struck out as an abusive term when the buyer is a consumer.

The practical consequence is that you cannot draft a single set of general terms and conditions and expect them to work for every customer. Selling business-to-business and selling to the public are two different legal exercises. Understanding where the boundary lies — and how a business buyer can occasionally slip back into a protective zone — is the difference between an enforceable contract and an unpleasant surprise before a French court. It also feeds directly into the broader question of which law governs the sale of goods in France.

Consumer sales: the guarantee of conformity and the reversed burden of proof

When a professional sells goods to a consumer, the Consumer Code adds a powerful remedy that has no direct equivalent between businesses: the legal guarantee of conformity (the garantie légale de conformité). Under Article L217-3 of the Consumer Code, the seller must deliver goods that conform to the contract and answers for any lack of conformity existing at the time of delivery. This guarantee sits alongside — it does not replace — the ordinary law of conforming delivery and the warranty against hidden defects, so a consumer typically has a choice of routes.

The feature that makes this regime so favourable to the buyer is the reversal of the burden of proof. Under Article L217-7 of the Consumer Code, a lack of conformity that appears within two years of delivery is presumed to have existed at the moment of delivery. The consumer does not have to prove when or why the defect arose; it is for the professional seller to show that the goods were sound when handed over. This presumption transforms the practical balance of a dispute, because proving the cause of a fault is usually the hardest and most expensive part of any claim.

The remedies are equally buyer-friendly. A consumer can require the goods to be brought into conformity — in practice, repair or replacement — and, where that fails or is disproportionate, obtain a price reduction or unwind the sale. Crucially, these protections are mandatory. A professional selling to a consumer cannot contract them away, and any clause that removes or reduces the consumer's right to a remedy is treated as an unfair term and deemed unwritten. This mandatory character is the opposite of the freedom that governs a B2B versus consumer sale in France on the business side.

Who is a consumer? Consumer, non-professional and professional defined

Because everything turns on status, the categories must be pinned down. French law, following the EU consumer directives, works with three figures. A consumer is a natural person acting for purposes outside their trade, business, craft or profession. A professional is a person — natural or legal — acting for purposes within their business activity, including through anyone acting in their name. Between the two sits the non-professional: a legal person, such as a small association or a co-ownership syndicate, acting outside a business activity, who is granted some of the same protections as a consumer.

The decisive test is the purpose of the purchase, not the nature of the buyer. A sole trader who buys a laptop for family use at home acts as a consumer; the same person buying stock for resale acts as a professional. Where a purchase serves a mixed purpose, French and EU case law asks whether the business purpose is marginal, in which case consumer protection may still apply. This purposive approach is what allows a business buyer, in narrow circumstances, to fall outside the strictly professional sphere.

For a seller, the point is to characterise each customer relationship at the outset. A wholesaler dealing only with retailers is squarely in B2B territory. A manufacturer that also sells directly to the public through a website is running two regimes in parallel and needs two sets of terms. Getting the characterisation wrong — treating a consumer as a professional in your paperwork — does not change the buyer's real status; it simply produces clauses that a court will disregard.

B2B sales: the Civil Code default and freedom to allocate risk

Where both parties contract for their business, the protective Consumer Code falls away and the sale is governed by the general law: the seller's duty of conforming delivery, the warranty against hidden defects under Article 1641 of the Civil Code, and the warranty against eviction, all read against the background of the Commercial Code for commercial sales. There is no automatic two-year presumption of conformity in the buyer's favour and no mandatory catalogue of remedies imposed on the seller. This is the defining contrast in a B2B vs consumer sale in France.

The warranty against hidden defects remains the central protection for a business buyer. Under Article 1641 of the Civil Code, the seller answers for latent defects that render the goods unfit for their intended use, or so reduce that use that the buyer would not have bought, or would have paid less, had the defect been known. The defect must be hidden, inherent in the goods and pre-existing the sale. A defect that a diligent professional buyer could have detected on a basic examination is treated as apparent and is not covered — the courts hold a professional buying within their own field to a higher standard of inspection.

The great difference in the B2B sphere is freedom of contract. The rules on hidden defects are default rules, which means the parties may adjust them. A business seller can, within limits, limit the warranty to certain defects, cap its liability, allocate the risk of loss, and fix delivery and inspection procedures. This freedom is what allows sophisticated B2B contracts to distribute risk commercially — and it is precisely the freedom that the Consumer Code denies against a consumer. The extent of that freedom is the subject of limiting or excluding warranties in B2B sales.

The professional-of-the-same-speciality rule and the limits of exclusion

The freedom to limit warranties in a B2B sale is real but bounded, and the key boundary is the case-law rule on the professional seller's knowledge of defects. A professional seller is presumed to know the defects in the goods they sell. Where the buyer is not a professional of the same speciality, the courts treat that presumption of knowledge as irrebuttable, which means the seller is deemed to have acted in bad faith. Under Article 1643 of the Civil Code, a seller who knew of the defect cannot shelter behind a warranty exclusion clause.

The consequence is a sharp dividing line inside the B2B world. If the buyer is a professional of the same speciality as the seller — trading in the same field, with the same technical competence — a clause limiting or excluding the hidden-defects warranty is valid and enforceable. If the buyer is a professional of a different speciality, the presumption of the seller's bad faith operates fully and the exclusion clause is denied effect. The Cour de cassation has consistently applied this distinction, and has confirmed that a seller cannot use a limitation clause to escape the financial consequences of a defect they are presumed to have known.

A related limit deserves emphasis. Even between professionals, a clause cannot strip out the essence of the seller's core obligation; a term that empties the delivery obligation of its substance is deemed unwritten. So two questions decide the fate of a B2B warranty exclusion: are the parties of the same speciality, and does the clause leave the seller's essential obligation intact? Only if both answers are favourable will the clause hold. For the buyer's side of this, see our note on the warranty against hidden defects.

Where a business buyer may still get protection

It is tempting to assume that once the buyer is a company, all consumer-style protection disappears. That is not quite right, and the exceptions matter in a B2B versus consumer sale in France. The first route is the same-speciality rule seen above: a business that buys outside its own field is, in effect, in the same weak position as a lay buyer when facing the seller's presumed knowledge of defects, and warranty exclusions will not bind it. A restaurant that buys a specialist refrigeration unit is not a refrigeration professional, and the seller cannot exclude the hidden-defects warranty against it.

The second route is the protection given to the non-professional — a legal person acting outside any business activity. Certain Consumer Code protections, including the control of unfair terms, extend to non-professionals as well as consumers. A small owners' association buying goods for the building it manages may therefore benefit from rules that a trading company would not. Whether a given buyer qualifies is a question of purpose and requires care.

A third, more general safeguard applies even between two fully commercial parties. French law controls significant imbalance in commercial relationships and, in adhesion contracts, treats a clause creating a significant imbalance in the parties' rights and obligations as unwritten. These controls do not turn a business buyer into a consumer, but they give a court tools to police the most one-sided B2B terms. The message for sellers is that even a professional buyer is not wholly unprotected, and drafting should not assume otherwise.

Practical consequences for your general terms and conditions

The practical upshot of the B2B vs consumer sale in France divide is that your general terms and conditions cannot be one document. Selling to the public and selling to businesses require distinct sets of terms, because a clause that is a legitimate risk-allocation tool in one context is an unlawful, unwritten term in the other. A single set of terms borrowed from another market and translated will almost always be too aggressive for consumers and, sometimes, ineffective even against businesses.

For consumer terms, the drafting task is to comply, not to exclude. The guarantee of conformity, the two-year presumption and the mandatory remedies must be respected, and any attempt to reduce them will be disregarded and may expose you to enforcement action. For B2B terms, the task is to allocate risk validly: define the goods and their intended use precisely, set clear inspection and notice obligations, and calibrate warranty limits and liability caps to what the same-speciality rule and the ban on gutting essential obligations will allow.

The steps below set out a workable process for placing a sale in the right regime and building the matching terms. Following it at the contracting stage is far cheaper than discovering, in litigation, that a customer you treated as a professional was in law a consumer, or that a clause you relied on was unwritten from the start.

Consumer vs B2B sales: a side-by-side comparison

The table below summarises how the two regimes diverge on the points that decide most disputes. It is a map, not a substitute for advice on a specific transaction, but it captures the core of the B2B versus consumer sale in France distinction: mandatory protection on one side, contractual freedom within limits on the other.

Frequently asked questions about B2B vs consumer sales in France

Does French consumer law apply to my B2B sale?

No. The Consumer Code guarantee of conformity applies where the buyer is a consumer, and to a limited extent a non-professional. A sale between two parties both acting for their business is governed by the Civil Code and Commercial Code. The protective consumer regime, including the two-year presumption, does not apply to an ordinary B2B sale.

What is the garantie légale de conformité?

It is the legal guarantee of conformity in the Consumer Code. Under Article L217-3, a professional selling to a consumer must deliver goods that conform to the contract and answers for defects existing at delivery. Under Article L217-7, a defect appearing within two years is presumed to have existed at delivery, reversing the burden of proof in the consumer's favour.

Can a business buyer claim consumer protection?

Sometimes. A business that buys outside its own speciality cannot have the hidden-defects warranty excluded against it, because the seller is presumed to know the defect. Separately, a non-professional legal person acting outside any business may benefit from certain protections, such as the control of unfair terms. But a company buying within its field in the ordinary way is treated as a full professional.

Can we exclude warranties against a business buyer?

Only in a narrow case. A clause limiting or excluding the warranty against hidden defects is valid where the buyer is a professional of the same speciality as the seller. Against a professional of a different speciality, the seller's presumed bad faith under Article 1643 of the Civil Code neutralises the clause, and against a consumer it is void.

Who counts as a consumer in France?

A consumer is a natural person acting for purposes outside their trade, business, craft or profession. The test is the purpose of the purchase, not who the buyer is: the same person can be a consumer for a household purchase and a professional for a business one. A separate category, the non-professional, covers legal persons acting outside a business activity.

Does the two-year presumption apply between businesses?

No. The presumption that a defect appearing within two years existed at delivery is a feature of the consumer guarantee of conformity. In a B2B sale the buyer must prove that the defect was hidden, inherent in the goods and present before the sale, typically with the help of an expert report.

Do I need two different sets of terms and conditions?

In practice, yes, if you sell both to businesses and to the public. Consumer terms must comply with mandatory protections and cannot exclude the guarantee of conformity, whereas B2B terms can allocate risk within limits. A single document rarely works for both, because clauses valid in one regime are unwritten in the other.

Key takeaways on B2B vs consumer sales in France

How our French lawyers help with B2B vs consumer sales in France

Petroff Avocats advises sellers and buyers on both sides of the B2B versus consumer divide. For sellers, we build and separate your consumer and B2B general terms and conditions, draft warranty and liability clauses that survive the same-speciality rule and the ban on gutting essential obligations, and keep your consumer terms compliant with the mandatory guarantee of conformity. For buyers, we assess your status, identify whether a warranty exclusion can be resisted, and pursue remedies for defective or non-conforming goods. Whether you are selling into France from abroad or buying from a French supplier, we place the transaction in the right regime before a dispute arises and defend your position if one does.

This article is for general information only. It does not constitute legal advice and does not create a lawyer-client relationship. The law of sale distinguishes many situations that cannot all be covered here, and the treatment of any clause depends on the facts. Contact our French lawyers for advice on your situation.