Acceleration Clause Without Formal Notice: An Unfair Term Deemed Unwritten – CA Metz, 3rd Ch., 26 February 2026, No. 24/02013

Metz Court of Appeal, 3rd Chamber, 26 February 2026, No. 24/02013

The facts of the case: a revolving credit and unpaid instalments

The case examined by the Metz Court of Appeal originates in a classic contractual relationship between a customer and her bank. On 19 September 2020, Mrs [U] opened a bank account with the Caisse de Crédit Mutuel Rives de Moselle. A few months later, on 10 December 2020, she took out a revolving credit called “Passeport Crédit” for an initial amount of €20,000.

On 30 December 2020, the entire available amount, €20,000, was drawn down. This credit was repayable in 60 monthly instalments of €380.64 each, at a contractual interest rate of 3.94% per annum. Revolving credit, a widespread financial product but one that is often a source of litigation, allows the borrower to have a reserve of money that is replenished as repayments are made.

The difficulties began when Mrs [U] stopped paying her instalments. Faced with this default, the bank adopted a classic litigation strategy: after sending a formal notice on 27 June 2023, it declared acceleration of the loan (déchéance du terme) on 11 August 2023. This acceleration allows the bank, in principle, to demand immediate repayment of the entire outstanding capital, and not only the unpaid instalments.

On 29 April 2024, the CCM summoned Mrs [U] before the consumer protection judge (juge des contentieux de la protection) of the Metz Court of First Instance (tribunal judiciaire). The bank claimed a double order: on the one hand, the sum of €4,770.98 in respect of the debit balance of the current account, and on the other hand, the sum of €17,916.37 in respect of the revolving credit. This second sum corresponds to the outstanding capital following the declared acceleration. The bank also sought capitalisation of interest and an award under Article 700 of the Code of Civil Procedure (code de procédure civile).

The court proceedings: from the consumer protection judge to the court of appeal

The consumer protection judge, the court of first instance with jurisdiction over disputes between professionals and consumers, delivered judgment on 17 October 2024. Its decision was nuanced and adopted a lukewarm, mixed position that satisfied neither party.

On the one hand, the judge declared inadmissible the claim for payment of the balance of the revolving credit, that is, the €17,916.37 claimed by the bank as outstanding capital. On the other hand, the judge declared admissible the payment claims seeking an order for the unpaid instalments of the revolving credit and in respect of the bank overdraft. Mrs [U] was thus ordered to pay €2,495.79 for the debit balance of the bank account and €5,726.40 for the unpaid instalments of the revolving credit, all with interest.

Dissatisfied to see its principal claim declared inadmissible, the Caisse de Crédit Mutuel appealed on 4 November 2024. In its submissions of 29 April 2025, the bank asked the court to reverse the judgment insofar as it declared inadmissible its claim for the balance of the credit and to order Mrs [U] to pay it the sum of €17,916.37 with contractual interest and capitalisation.

An important procedural point should be noted: the appellant limited the devolutive effect of the appeal. In accordance with Article 915-2 of the Code of Civil Procedure, it removed from its appeal certain heads of the operative part of the judgment, in particular the provisions ordering Mrs [U] to pay in respect of the bank overdraft. The court therefore had to rule only on the provisions expressly challenged in the appeal submissions.

The hearing was held on 11 December 2025 before the Third Chamber of the Metz Court of Appeal. Mrs [U], the respondent, did not appear and was not represented. The case was therefore examined by default. On 12 February 2026, the court took a proactive step by inviting the parties, by note, to submit their observations on a point of law that the court below had not raised of its own motion: the potentially unfair nature of the acceleration clause contained in the contract.

This judicial initiative testifies to the active role that the judge must play in protecting consumers. Article L. 212-1 of the Consumer Code (code de la consommation) indeed requires the judge to raise of his or her own motion the unfair nature of a contractual term, even if the parties do not invoke it. The bank replied on 17 February 2026, arguing that the point raised had no bearing on the outcome of the dispute, since it had duly sent a formal notice before declaring acceleration.

The judgment was delivered on 26 February 2026 and made available at the court registry in accordance with Article 450, paragraph 2, of the Code of Civil Procedure.

Analysis of the unfair nature of the acceleration clause

The European legal framework and the CJEU judgments

To assess the unfair nature of the disputed clause, the Metz Court of Appeal relies on a solid legal arsenal, built by both European and national law. Article L. 212-1 of the Consumer Code (code de la consommation), which transposes European Directive 93/13/EEC of 5 April 1993, forms the foundation of the protection. This provision states that in contracts concluded between professionals and consumers, terms are unfair if their object or effect is to create, to the detriment of the consumer, a significant imbalance between the rights and obligations of the parties to the contract.

The notion of “significant imbalance” is at the heart of the system. The aim is not to penalise every term that is disadvantageous to the consumer, but only those that seriously upset the contractual balance. This assessment must take into account all the circumstances surrounding the conclusion of the contract and the nature of the goods or services to which it relates.

The Court of Justice of the European Union (CJEU) has developed extensive case law on the application of this directive, particularly as regards acceleration clauses. In its judgment of 26 January 2017 (Case C-421/14), the CJEU laid down precise criteria for assessing the unfair nature of such a clause. It indicated that the national court must examine several cumulative elements:

• Does the right given to the professional to declare the whole of the loan due depend on the consumer’s failure to perform an obligation that is essential in the context of the contractual relationship?
• Is that right provided for in cases where such a failure is sufficiently serious in the light of the term and amount of the loan?
• Does that right derogate from the ordinary rules of law applicable in the matter in the absence of specific contractual provisions?
• Does national law provide adequate and effective means enabling the consumer subject to such a clause to remedy the effects of the loan becoming due?

These criteria are intended to ensure that acceleration, a serious measure that upsets the economy of the contract, occurs only in justified situations and with sufficient procedural safeguards for the consumer. The judgment of 26 January 2017 thus marked a turning point in the protection of borrowers against bank contractual terms.

This development in the case law reflects a constant determination on the part of the Luxembourg Court to strengthen consumer protection. The criteria are not a list of conditions to be met one after the other, but a body of indicators allowing the court to assess, case by case and in context, whether or not the clause creates a significant imbalance.

The absence of prior formal notice: a significant imbalance

Examination of the “Passeport Crédit” revolving credit contract reveals a particularly terse clause. In the paragraph entitled “Warning about the consequences of a default”, on page 3 of 7 of the contract, it is simply stated: “In the event of default (by the borrower), the lender may demand immediate repayment of the outstanding capital plus unpaid accrued interest.”

This wording calls for several critical observations. First, it does not define what is meant by “default”. Is it a single missed payment? Several successive unpaid instalments? Exceeding a certain threshold of delay? The terminological vagueness leaves considerable room for discretion to the lending institution, which could potentially trigger acceleration at the first payment incident.

Next, and above all, the clause provides for no prior formal notice to be sent. It authorises the bank to demand “immediately” full repayment of the outstanding capital, without granting the consumer any time to regularise the situation. Yet formal notice is a fundamental procedural safeguard in contract law.

The Metz Court of Appeal firmly recalls the applicable principle: “While a contract for a loan of money may provide that default by a non-trader borrower will result in acceleration, the creditor cannot, save by express and unequivocal provision, be held to have acquired acceleration without the delivery of a formal notice that has remained without effect, specifying the period within which the debtor may prevent it.”

This principle, which stems from settled case law, aims to prevent the borrower from being brutally placed in an inextricable situation. Formal notice fulfils several essential functions:

In the absence of any requirement for prior formal notice, the disputed clause deprives the borrower of these safeguards. The court finds that this clause “is liable to create a significant imbalance between the rights and obligations of the parties, to the detriment of the consumer who is thus exposed to a sudden worsening of the repayment conditions and without any means of remedying the effects of such a clause.”

The expression “sudden worsening” deserves emphasis. A borrower who takes out a credit repayable in 60 monthly instalments legitimately expects his or her debt to be spread over time, and organises the budget accordingly. The possibility for the bank to demand full repayment overnight, without notice or period for regularisation, constitutes a brutal and unforeseeable upheaval of the economy of the contract. The consumer is placed in a situation where it is materially impossible to meet his or her obligations.

This analysis is in line with the criteria identified by the CJEU. The clause provides no adequate and effective means enabling the consumer to remedy the effects of early enforceability. It derogates from the ordinary rules of law, which generally require prior formal notice to render the debtor in default. It therefore does create a significant imbalance.

Assessment of unfairness in abstracto

Faced with the bank’s argument, the Metz Court of Appeal adopts a position of principle that is particularly important. The credit institution argued that the unfair nature of the clause should be set aside since it had, in practice, sent a formal notice to Mrs [U] on 27 June 2023, before declaring acceleration on 11 August 2023. According to the CCM, the respondent’s rights had been respected and she had suffered no detriment, so that there would be no significant imbalance.

The court brushes this argument aside by stating a fundamental principle: “The assessment of the unfair nature of a term is made with regard to the term itself and not according to the way in which the creditor implements it.”

This statement reflects an in abstracto approach to the review of unfair terms. The judge does not have to examine how the clause was applied in the case at hand, but must assess its unfair nature in itself, that is, as it results from its wording and its insertion in the contract. This method has several decisive advantages.

First, it guarantees equal treatment among all consumers. If unfairness depended on the concrete application of the clause, some borrowers would benefit from protection while others, in an identical situation but facing a less scrupulous bank, would be deprived of it. Assessment in abstracto ensures uniform protection.

Second, it prevents a professional’s occasional goodwill from validating an inherently imbalanced clause. A bank cannot make an unfair term lawful by applying it moderately. The review concerns the clause itself, independently of its performance.

Finally, assessment in abstracto makes professionals accountable. It encourages them to draft balanced contracts from the outset, rather than counting on a moderate application of imbalanced clauses. This is a preventive rather than a curative logic.

The court thus concludes: “The fact that the appellant cannot rely on acceleration because of the unfair and unwritten nature of the clause does not render its payment claim inadmissible but partially unfounded.” This distinction between inadmissibility and lack of merit is essential and carries important practical consequences, which we will now examine.

The legal consequences of the clause being deemed unwritten

The admissibility of the payment claim

Article L. 212-1 of the Consumer Code provides that unfair terms are “deemed unwritten”. This expression means that the clause is deemed never to have existed. It disappears retroactively from the contract, as if it had never appeared in it. The contract continues without that stipulation, provided it can survive without it.

The consumer protection judge had declared inadmissible the bank’s claim for payment of the balance of the revolving credit. This legal characterisation meant that the legal action itself was tainted by a defect making it unfit to be examined on the merits. Inadmissibility is a bar to proceedings (fin de non-recevoir) that definitively blocks access to the court without examination of the merits of the claim.

The Metz Court of Appeal adopts a different analysis, more nuanced and legally more rigorous. It considers that the unfair nature of the acceleration clause affects not the admissibility of the action but its merits. In other words, the bank has the right to bring legal proceedings to claim payment of sums under the credit (its action is admissible), but it can succeed only to the extent that its claim is well founded.

This distinction may seem technical, but it is essential. Inadmissibility penalises a procedural defect or the absence of a right to bring proceedings. Lack of merit penalises the absence of a substantive right. In this case, the bank does have a claim against Mrs [U] (she owes it money under the credit), but the extent of that claim is limited by the nullity of the acceleration clause.

The judgment is therefore reversed insofar as it declared inadmissible the claim for payment of the balance of the revolving credit. The court declares this claim admissible, but goes on to examine to what extent it is well founded.

Limitation to unpaid instalments that have fallen due

Since the acceleration clause is deemed unwritten, the bank cannot rely on the acceleration declared on 11 August 2023. The credit therefore continues to produce its normal effects: it remains repayable in staggered monthly instalments according to the original contractual schedule. Capital not yet due remains not payable.

The Metz Court of Appeal states the applicable rule clearly: “In the absence of regular acceleration, the lender is entitled only to unpaid instalments that have fallen due.”

This solution follows the logic of instalment credit. The very nature of a loan repayable in monthly instalments is to divide the debt over time. The borrower does not owe the entire capital upon conclusion of the contract, but only the instalments as they fall due. As long as the term has not expired, the corresponding capital remains unavailable to the creditor.

In practice, the court carries out a precise calculation. From the summary of unpaid instalments and the account history produced to the court, it finds that Mrs [U] still owes the sum of €9,135.36 in respect of unpaid instalments that fell due from 5 May 2022 to 24 April 2024. This calculation corresponds to 24 unpaid monthly instalments of €380.64 each (€380.64 × 24 = €9,135.36).

The difference from the sum initially claimed by the bank is considerable. The credit institution sought €17,916.37, corresponding to the outstanding capital after acceleration. It obtains only €9,135.36, roughly half. This drastic reduction illustrates the concrete impact of protection against unfair terms: the borrower sees her immediately payable debt cut in half.

It should be made clear that Mrs [U] will of course have to continue repaying the credit according to the original schedule for future instalments. The order made by the court is not a write-off of the entire debt, but a limitation of immediate enforceability. The capital not yet due remains owed, but according to the contractual timetable.

The court attaches to this order interest at the contractual rate of 3.94% per annum and insurance at the rate of 0.50% per annum from 25 April 2024. These rates correspond to those provided for in the original contract and continue to apply normally. The first-instance judgment is therefore reversed insofar as it had ordered Mrs [U] to pay only €5,726.40: that amount was manifestly undervalued and did not correspond to the exact calculation of the unpaid instalments.

The refusal of capitalisation of interest

The Caisse de Crédit Mutuel also sought capitalisation of interest, a mechanism by which accrued and unpaid interest is added to the capital so as itself to bear interest (sometimes called “compound interest” or “anatocism”). This technique allows the creditor to obtain remuneration on sums that are owed to it but have not been paid.

Capitalisation of interest is provided for by Article 1343-2 of the Civil Code (code civil), which states that accrued interest, due for at least one full year, may itself bear interest. However, this mechanism does not apply automatically in consumer credit. It runs up against a specific protective rule laid down by the Consumer Code.

Article L. 312-38 of the Consumer Code indeed provides that “no indemnity or cost other than those mentioned in Articles L. 312-39 and L. 312-40 may be charged to the borrower in cases of early repayment or default provided for by those articles.”

Articles L. 312-39 and L. 312-40 exhaustively define the indemnities that the lender may claim in the event of early repayment or default by the borrower. Capitalisation of interest is not among those expressly authorised indemnities. It therefore constitutes an additional cost that cannot be charged to a consumer borrower.

The Metz Court of Appeal states this principle: “The rule laid down by Article L. 312-38 of the Consumer Code (…) precludes the application of the capitalisation of interest provided for by Article 1343-2 of the Civil Code.”

This solution illustrates the principle of specialty in consumer law. Where a special rule protecting the consumer exists, it takes precedence over ordinary law, even if the latter would allow a different solution. Consumer law constitutes a protective public policy (ordre public) that derogates from the general rules of civil law in a direction favourable to the consumer.

The bank is therefore dismissed from its claim for capitalisation of interest. It can claim only interest at the contractual rate on the unpaid capital, without that interest being added to the capital.

The court also specifies that the court of first instance had not ruled on this claim for capitalisation, even though it had been made from the first instance. This silence in the judgment amounted implicitly to a rejection, which the court expressly confirms on appeal.

The practical scope of this decision

Reviewing existing credit contracts

The judgment delivered by the Metz Court of Appeal has a scope that goes well beyond the individual case of Mrs [U]. It provides valuable insight into the validity of acceleration clauses in revolving credit contracts offered by banks. Many consumers who have taken out this type of credit are potentially affected by an identical issue.

Revolving credit, also called “revolving” credit, is a widespread financial product in France. The amounts borrowed are generally modest (a few thousand to a few tens of thousands of euros). These credits are frequently associated with payment cards and are actively marketed, particularly in retail chains. The legislature has strengthened the regulation of these products on several occasions because of the over-indebtedness risks they present.

In this context, the question of the validity of acceleration clauses inserted in these contracts is of considerable importance. If the standard wording used by the Caisse de Crédit Mutuel in the case judged by the Metz court is declared unfair, it is highly likely that similar clauses appear in contracts offered by other banks.

Borrowers who have been subject to acceleration declared on the basis of a clause similar to the one examined by the Metz court potentially have an effective defence. They can challenge the validity of that acceleration by invoking the unfair nature of the contractual term.

This challenge can be made at several stages. If the bank has not yet started legal proceedings, the borrower can send a letter contesting the acceleration and offering to continue repaying the credit according to the original schedule. If proceedings are under way, the borrower must raise the unfair nature of the clause in his or her submissions, relying on the CJEU case law and on decisions such as that of the Metz court.

It should be recalled that the judge must raise of his or her own motion the unfair nature of a term, even if the parties do not invoke it. In practice, however, it is preferable for the borrower, assisted by counsel, to develop this argument expressly in order to draw the judge’s attention to the issue and provide the relevant legal materials.

Borrowers’ rights against banks

Beyond the specific case of acceleration clauses, the Metz Court of Appeal’s judgment recalls several fundamental principles governing relations between borrowers and credit institutions.

First, consumer law is a set of rules of public policy (ordre public) from which the parties cannot derogate by contrary contractual stipulations. This protective public policy aims to rebalance the contractual relationship between the professional, who has legal and financial expertise, and the consumer, who is in a position of weakness.

Banks therefore cannot impose just any clause in their contracts. Any stipulation creating a significant imbalance to the detriment of the consumer is liable to be declared unfair and deemed unwritten. This sanction is radical: the clause disappears from the contract as if it had never existed, and can produce no legal effect.

Next, the judgment recalls that the judge plays an active role in protecting consumers. The judge does not merely examine the arguments raised by the parties, but must raise of his or her own motion the unfair nature of terms. This obligation requires particular vigilance on the part of the judge and justifies, as in this case, inviting the parties to submit their observations on a point of law that the judge considers decisive.

Moreover, the decision underlines the importance of pre-contractual information and transparency. Consumers must be able to understand the rights and obligations arising from the contract they sign. A clause drafted in vague or ambiguous terms, which does not allow the consumer to measure precisely the consequences of a possible breach, is liable to be set aside.

Finally, the judgment illustrates the essential role of European law in consumer protection. European directives, as interpreted by the CJEU, set minimum standards of protection that Member States must respect. European case law permeates national law and guides French courts in assessing the unfair nature of terms.

Borrowers should not hesitate to assert their rights. All too often, through ignorance of the law or fear of confronting a bank, consumers accept unfavourable situations that they could legitimately oppose. The assistance of legal counsel, an attorney or a consumer association, can prove decisive in having the borrower’s rights respected.

It should also be stressed that amicable remedies should be favoured in the first instance. Banks have a complaints department and disputes can be submitted to a banking ombudsman. These procedures, which are free and quick, often make it possible to find a solution without having to start legal proceedings.

Where the amicable route fails, legal action becomes necessary. The competent courts of first instance are the consumer protection judge for low-value disputes, and the Court of First Instance (tribunal judiciaire) for larger disputes. The borrower may also apply to the interim relief judge (juge des référés) in urgent cases, for example to obtain suspension of an enforcement measure.

Conclusion

The judgment delivered on 26 February 2026 by the Metz Court of Appeal is a remarkable illustration of the concrete application of consumer law to the banking field. By declaring unfair, and deemed unwritten, the acceleration clause that provided for no prior formal notice, the Metz judges adopted a firm position in favour of borrower protection.

This decision forms part of a broader case-law dynamic, driven by the judgments of the Court of Justice of the European Union, aimed at guaranteeing an effective balance between the rights and obligations of the parties in credit contracts. It recalls that banks, despite their dominant position and expertise, cannot escape the rules protecting consumers.

The practical scope of this judgment goes beyond the case at hand. It provides a framework of analysis applicable to many similar situations and is a valuable tool for borrowers faced with an acceleration declared on the basis of a potentially unfair contractual term. Limiting the enforceable claim to unpaid instalments that have fallen due, rather than to the entire outstanding capital, can represent considerable relief for consumers in difficulty.

Beyond its technical contribution, this decision conveys an important message: the law is not powerless against contractual imbalances. Consumer protection mechanisms, when actually mobilised, make it possible to correct situations of abuse and restore a fairer contractual relationship. Borrowers must still know their rights and dare to assert them, with the assistance of competent counsel.

In an economic context marked by the financial fragility of many households and the proliferation of consumer credit, the vigilance of the courts in reviewing unfair contractual terms remains more necessary than ever. The Metz Court of Appeal’s judgment of 26 February 2026 fully fits within this protective mission and deserves to be welcomed and circulated.

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