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The links implies acceptance of terms and conditions

On June 6, 2007, a user decides to acquire the site Promovacances.com stay for two in Martinique with a starting August 2, 2007 and return August 16, 2007 for a total of € 3,195. On July 25, 2007, he sent a mail to the company under which he Karavel demand for compelling medical reasons, the postponement to a later date of travel. On July 28, 2007, they addressed a second letter to the company Karavel asking to postpone the dates of travel. If no answer, he decided to go to the airport August 2, 2007 where they were denied boarding on the grounds of the cancellation of their reservation.

The Internet therefore decided to refer the District Court of Paris 10e to obtain compensation for their injuries. The court, in a ruling dated November 5, 2008, had upheld their claims and attributed the sum of 5,000 euros in damages and 1,200 euros under section 700 CPC.

Indeed, the court found that "the request to postpone the date of travel such that done in a very short period does not give rise to a contractual payment and that, in this case, the tour operator is not entitled to consider itself released from its obligation to provide benefits related to travel pay, and the customer always enjoying the trip to the originally scheduled date.

The tour operator decided to appeal this decision based on the general conditions of sale where "under Article 3 of the cancellation or modification, changing the departure date has resulted in the cancellation of the reservation and leads to the perception of a cancellation fee. "The debate, on appeal, therefore focused on the enforceability of such provision to consumers.

The judges point out that Parisians:

" the order was carried out via Internet ; in the order, the words following clear, the imperative and detached from the rest of the text: 'Do not forget to read the general conditions of sale' and follows a hyperlink underlined; that Clicking this link, you reach the general conditions of sale which provide under Cancellation / Modification to client-initiated 'in Article 3.2' Warning: changing the date of departure has resulted in a cancellation of booking. Therefore, this change will entail the collection of cancellation fees as provided in Article 3.1 ... ' ; In this case, cancellation is reached within 7 days before departure, the cancellation fee is 100% of the price paid "

And above all:

" when of purchase, 'click' End valid command general conditions of sale "

In these conditions, consumers' thus can not seriously contend that they did not
approved the terms and conditions .

The Paris Court of Appeal reversed so the trial decision and ordered the couple to return the sums paid by the company Karavel following the trial decision.

Note that this question of accepting general had already arisen in several cases. The TGI Bobigny, in a case brought by LastMinute at UFC Que Choisir was estimated that

"if is correct that the statement of general conditions of sale is made at the end of the ordering process, provided it is true that the client can commit irrevocably after a tick in the box that requires it to take prior knowledge of these matters. As indicated in the tour, it is up to the consumer to become aware of these conditions and no system can ensure their effective reading.

And the court therefore invited the tour operator " to submit its terms and conditions clearly and accessible prior to consumer choice .

So, again, a judge said that if he belongs to cyber-shop to provide a mechanism for acceptance of general conditions, and this in a clear, accessible and prior, it is never to cyber-shop s ensure that the consumer has actually read these terms and conditions.

Source: CA Paris, 11.25.2010, SAS Karavel c / X. (Unpublished)

Author: Benoit Tabaka - http://tabaka.blogspot.com