Abuse of weakness

Elements of the offense

Abuse of weakness or abuse of ignorance is a offense.

This offense exists if 3 elements are met:

• Vulnerability of the victim
• Abuse committed by the perpetrator
• Injury suffered by the victim.

This is the case when a person takes advantage of the vulnerability another to lead her to do an act or abstention contrary to her interest.

Vulnerability must be visible or known to the perpetrator.

Vulnerability may be due toage (minor, elderly), illness, theinfirmity, the physical or mental disability or thestate of pregnancy. It can also be a depressive state durable or temporary.

The victim is not aware of his actions and ignores the consequences.

For example, it may be an elderly person who does not understand the financial consequences of their commitment. The same applies to a minor who enters into a contract without having the legal capacity.

The victim may also be in state of psychological or physical subjection, i.e. under right-of-way due to severe and repeated pressure or manipulation disrupting his judgment (in the cults for example).

Examples of abuse of weakness

The abuse of weakness or the abuse of ignorance may take various forms:

• Unnecessary sale, for example, the subscription of an internet subscription by a person who does not have a computer
• Sale of a house for a price well below its real value
• Remittance of large and unusual amounts of money (transfers, checks, payment by credit card, bank withdrawals), without real consideration
• Signature of a bank power of attorney to a person who does not understand French
• Psychological pressure exerted on a person, under the influence of a cult, to push him to refuse the medical care necessary for his survival. The same applies to a third party (neighbor, friend) or a family member. These pressures must lead the victim to do an act contrary to his interest.

In the event of a commercial contract, there may be a abuse where the consumer's commitment shall be obtained in the following circumstances:

• Home visit (tricks or tricks can be used to convince the consumer to buy a good or sign a contract of engagement)
• Following a solicitation by telephone (possible constraint) or following an offer made at home, to go to a place of sale, with particular advantages (gifts, discounts...))
• On the occasion of meetings or excursions organized by the perpetrator
• In a place not intended for the marketing of the good or service (parking, hotel ...) or in the context of a fair (or trade show)
• In an emergency situation which has made it impossible for the consumer to consult a qualified professional and which results in momentary vulnerability (e.g., locked lock, car or heating failure).

Amicable resolution of the contract

The contract can be canceled for lack of consent.

The cancelation request can be made on free paper following a template:

Request the cancelation of a home sale for abuse of weakness or abuse of ignorance

The request may be addressed to the professional concerned.

If annulment of the act is requested, the victim must provide proof abuse of weakness or abuse of ignorance, by any means. For example, it may be a medical certificate indicating its vulnerability on the day of the contractual commitment.

The victim can request the cancelation of the fraudulent contract and the restitution of the amount of money paid. It may also seek damages as compensation for its damage.

The victim has 5 years to request the invalidity of the contested act.

In the event of the death of the victim, the action may be brought by his heirs only if the victim's harm existed before his death.

If the victim is minor at the time of the facts, the 5 years from the date of his majority.

If the victim is a protected major, the prescription from 5 years from judgment who decides on the measure of guardianship or curatorship.

Judicial termination of the contract

The victim can refer the matter to the court to request the judicial termination of the contract.

It may also request damages and interest.

She must prove that the abuse committed by the author and its consequences are intentional and that he knows his vulnerability.

Before the court, the victim must be represented by a lawyer except in certain cases.

It must bring the matter before the court by assignment or by query.

Filing of a complaint

The victim can lodge a complaint for these facts.

If the victim is minor, she can make this approach alone or accompanied of his parents.

If the victim is under guardianship, it's the guardian who files a complaint on his behalf.

If the victim is under curatorship, the curator assists him.

The complaint must be filed in a 6 years from the day on which the acts were committed.

If the facts were repeated by the perpetrator, it is the last act committed that will start the delay.

If the facts were hidden by the author, it is a cause of lengthening the time limit which cannot exceed 12 years from the commission of facts.

The victim (or his/her representative) may claim compensation for the damage. For this, it must be constituted civil party during the proceedings and until the hearing.

It may seek compensation for one or more of the following:

• The amount of the price of the asset or money misappropriated
• Damages and interest for the deprivation of the object and for non-material damage
• Amount to cover the cost of the trial.

If the victim becomes a civil party, he must quantify his claims.