Which lawyer for abuse of weakness?
Some malicious people do not hesitate to abuse the condition of weakness of a person in a state of fragility to take advantage of it. One of your relatives or yourself may have been the object of such practices in various fields such as inheritance, gifts or even consumer law. This article explains the main points to remember about abuse of weakness and gives you some valuable advice on how to find the right lawyer.
What is an abuse of weakness?
The abuse of weakness is a malicious act carried out against a fragile person in a state of weakness. These acts are punishable by law and are contrary to public order.
These acts are also sanctioned by the Consumer Code which protects consumers.
The Penal Code strongly reprimands this litigation. The purpose of the Consumer Code is to protect consumers, particularly against aggressive canvassing practices.
The Consumer Code also refers to the abuse of weakness in the following terms:
“It is prohibited to abuse the weakness or ignorance of a person to make him subscribe, by means of home visits, to cash or credit commitments in any form whatsoever, when the circumstances show that this person was not in a position to appreciate the scope of the commitments he was making or to detect the tricks or artifices deployed to convince him to subscribe to them or make it appear that he was subjected to coercion.“
The abuse of weakness is therefore measured within the Consumer Code in relation to the capacity of appreciation of the person who suffers it.
For example this appreciation is translated by the notion of layman (or uninformed person).
Who are the persons in a state of weakness?
The persons in a state of weakness are persons in a state of fragility. This fragility presupposes a certain vulnerability which makes them easy prey to unscrupulous people.
Because of their fragility, these people are easier to convince and deceive.
They can be people :
- Sick or infirm;
- Dying, or elderly people;
- Physically or psychologically impaired;
- In a state of pregnancy;
- Not knowing the French language;
- In a situation of economic insecurity;
The elderly are more particularly exposed to abuse of weakness. They often combine the existence of coveted assets with lonely living conditions, isolation and/or psychological or physical weakening with or without loss of autonomy.
What practices can constitute abuse of weakness?
The legislator essentially sanctions the abuse of weakness in commercial activities, gifts and successions.
The abuse of weakness in commercial practices
The practices that can constitute acts of abuse of weakness are generally linked to the proposal of goods for sale or the provision of services.
The practice of abuse of weakness consists in an unscrupulous professional (seller of goods or provider of services) exploiting the weakness of his prospect to make him conclude a commitment.
Most often, the commitment thus obtained does not correspond to any real need of the person.
In the case of a door-to-door sale of an encyclopedic package to elderly people living in a rural area, in the form of a CD rom when the person or persons do not own a computer.
The commitment is generally overcharged in exorbitant proportions and will be concluded following insistent visits and reminders (which sometimes border on harassment).
The abuse of weakness in the practices of liberalities and successions
Practices that may constitute abuse of weakness can also occur in the context of gifts (donations of goods between living persons) or the settlement of an estate.
Why consult a lawyer in inheritance law for an abuse of weakness related to gifts or an inheritance?
The use of a legal professional such as a probate lawyer is strongly recommended for proven cases of abuse of weakness.
If you or a loved one has been abused, do not wait to contact a family law attorney or an estate lawyer.
It can be abuse of weakness in the context of donations, loans, life insurance, or the drafting of a will.
The abuse of weakness on a legatee generally concerns the fact that the unscrupulous profiteer takes advantage of the state of weakness of a physically or mentally diminished testator in order to obtain from him a legacy or a gift that he would not have chosen to make in a normal situation.
If he or she was already on the will, the profiteer may also seek to act to obtain more than what was originally intended.
If it was not in the will, the profiteer may seek to have it mentioned in the will.
Good to know:
If you are a party to an estate and you encounter one of these cases, you are strongly advised to contact a lawyer who is an expert or specialized in estate law.
Your reactivity will be essential in order to sanction the abuse of weakness behavior of this unscrupulous profiteer.
The inheritance law lawyer will accompany you and help you to assert your rights as follows:
- The lawyer in inheritance law will come to characterize the state of vulnerability of the person victim of the abuse of weakness: the characterization of the abuse of weakness will be crucial to avoid that the succession becomes unmanageable between the heirs.
- The inheritance lawyer will then proceed to the denunciation of the abuse of weakness before the judges: the quality of the demonstration made by the inheritance lawyer will then be determining.
- The judges will then sanction the author of the abuse of weakness
Why consult a lawyer in consumer law for an abuse of weakness linked to dubious commercial practices?
It is the consumer law (a law whose vocation is to protect consumers) which sanctions the abuse of weakness exercised within the contractual framework of a commercial proposal.
Consulting a lawyer who is an expert or specialized in consumer law will be essential to ensure that you are accompanied by a legal professional capable of mastering all the skills specific to consumer law.
The abuse of weakness will be characterized if :
The commitment made is important and useless for the person who is the victim of the abuse of weakness: the victim must be harmed. The lawyer in consumer law will be able to initiate an action for the cancellation of the contract which was concluded by the person victim of the abuse of weakness.
Good to know :
The victim of the abuse of weakness must still be alive in this case because he or she will have to file a complaint on his or her behalf.
The abuse of weakness is an offence which is prescribed after 6 years from the moment when the victim of the abuse of weakness concluded the sale or the service with the profiteer.
In other words, the victim will be able to act only in the 6 years which will follow the moment when it was abused.
The victim of the abuse of weakness will thus be able to ask a penal judge to sanction the author of the abusive maneuvers and then to cancel the contract which was thus concluded.
Of course, the author of the maneuver can be a natural person or a legal person (a company).
If a legal entity is found guilty, the sanctions will be even more severe.
Before which jurisdictions can one file a complaint for abuse of weakness?
Which jurisdictions are competent in case of abuse of weakness?
Which judge for an abuse of weakness ?
Good to know :
The abuse of weakness is relatively difficult to prove.
If the abuse of weakness occurred in the context of an inheritance, you should consult a family law lawyer or an inheritance law lawyer.
If the abuse of weakness occurs in a commercial context, you should consult a consumer law lawyer.
The work of the lawyer you will choose will be crucial since it will consist in proving the abuse of weakness.
The case of the abuse of weakness characterized to cancel a donation (a gift):
The complaint will have to be brought before a civil judge at the Tribunal de Grande Instance (TGI), the only one competent for disputes in inheritance law.
The beneficiaries of the estate may also file a complaint before a criminal judge on the basis of abuse of weakness.
The criminal complaint will have to be filed with the Public Prosecutor and of course will have to be made by filing a complaint at the police station.
If the public prosecutor does not follow up on the complaint filed, it will still be possible to file a complaint directly against the author of the abuse of weakness (direct summons before the competent court)