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Cazeau & Associés’s Newsletter – June 2023



ChatGPT for lawyers, what’s next?

The topic  is inescapable, in our newspapers, on professional networks, every day, we can’t avoid it….

ChatGPT has arrived on our desks, in our computers (mostly) and … in our brains?

And we’re betting that the topic  will  remain  with us for a long time until it becomes an integral part of our working tools, and finally, in a few decades’ time, nobody will be talking about it anymore.

But for now, we’re still in the first chapter.

So what should we remember, and how should we approach the  topic ?

First, get trained.

That’s what we’re doing, thanks to the training courses offered by our  bar association, which we’d like to thank for giving us the opportunity to exchange views during a very interesting webinar, with experts who are showing us the way…

To sum up, the tool is intrinsically evolutionary. So it’s important to keep up with it, and to train yourself… often!

Good news for curious minds!

Next, it’s very interesting to discover the history of the development of artificial intelligence, and of ChatGPT, because we understand how the story began, how long it’s been going on, and we get a better idea of the future evolution.

We also understand that the data is up to date in September 2021, and not afterwards, so for us lawyers, beware (well, for now, because nothing lasts, everything evolves!).

And then we learn how to talk to the machine : it likes questions on …. Questions.   A bit like us.

ChatGPT is an extraordinary tool, but it doesn’t contextualize, and above all, it doesn’t create, it doesn’t invent…. ( for the time being….)

A good lawyer is one who knows how to create, invent and innovate….

It’s almost vacation time, and guess what? The machine  is never on vacation.


Unlawful clauses in contracts between suppliers and buyers

In an opinion issued on February 27, 2023, the Commission d’examen des pratiques commerciales (French Trade Practices Review Board) noted the significant presence of unlawful clauses in contracts between suppliers and buyers in the automotive manufacturing sector, either through a significant imbalance or through an advantage without consideration.

The firm has recently been working extensively on these clauses in industrial subcontracting contracts, particularly in the pharmaceutical sector.

CEPC analyzes four categories of clauses contained in the General Purchasing Conditions (CGA) drawn up by the supplier, and in the warranty conditions.

These four categories relate to logistics organization, applicable pricing conditions, warranties owed by the supplier, and intellectual property rights.

The CEPC notes that one of the stipulations in the GTCs is designed to make the supplier subject to the manufacturer’s GTCs, by introducing the principle of the non-enforceability of the supplier’s GTCs, as well as of all its reservations or corrections, in clear contradiction with article L. 441-1 of the French Commercial Code, which stipulates that the GTCs are the basis of commercial negotiation.

– Clauses relating to logistics organization.

A significant imbalance is constituted by the provision in the GTC of the possibility of modifying, at the buyer’s discretion, the requirements in terms of frequency and quantity of deliveries, methods of transport, shipping and packaging, drawings and specifications of the goods supplied, without any deadline for the entry into force of these modifications, in order to allow the supplier to adapt, while at the same time leaving him to bear the expenses and costs associated with these new requirements, without any possible renegotiation, particularly in terms of pricing, while moreover the allocation of these costs is carried out unilaterally by the customer.

The same applies to clauses relating to quality (including the need for the seller to strive for continuous improvement in the quality of goods, manufacturing processes and logistics) and to the buyer’s requirements and procedures in this area, as regularly modified or updated by him.

The unbalanced nature of these obligations is amplified by the inclusion of a stipulation relating to recourse and indemnification.

This stipulation specifies that if the seller fails to perform any of its obligations in full and on time, the buyer will be entitled to claim from the seller all direct, indirect, incidental, special and consequential damages, lost profits and revenues, as well as all legal fees and costs incurred by the buyer.

Drafters of logistics specifications and other supply conditions, including in the food or non-food supply chain, may wish to draw on this analytical grid when assessing the lawfulness or otherwise of the content of their documents.

– Clauses concerning applicable pricing conditions.

For example, the obligation to maintain for a long period of time a price agreed in the context of “first-time assembly”, i.e. in consideration of quantities greater than those likely to be ordered for after-sales, may give rise to a significant imbalance in economic terms, as well as to an advantage manifestly disproportionate to the consideration.

– Clauses concerning warranties owed by the supplier.

The warranty conditions refer to an article of the General Terms and Conditions, which makes the supplier solely responsible for the conformity and quality of the products manufactured for the buyer.

Following a reminder of the manufacturer’s obligations under the various warranty regimes, and the cases in which its obligations in this respect may be excluded or limited (e.g. fault of the victim), the CEPC observes that neither the article of the CGA nor the warranty conditions provide for the possibility of exonerating the supplier from liability, even in the event of fault on the part of the purchaser (for example, in the case where the non-conformity results from errors in the “specifications, drawings, samples, description and quality standards supplied or otherwise specified by the Purchaser”).

In so doing, insofar as it places full responsibility for product quality on the supplier, without reserving the case where the manufacturing defect is attributable to the purchaser, this article of the GTC creates an imbalance in the rights and obligations of the parties which does not appear to be offset by any other clause in the GTC or the general warranty conditions.