Duty to advise of the IT service provider

The IT provider’s duty to advise is the duty, recognised by settled case law, requiring IT professionals to inform their customer, warn them and advise them on the suitability of the proposed solution for their needs, before and during performance of the contract. It applies to publishers, integrators, developers and outsourcers. The IT provider’s duty to advise stems from general contract law and from the imbalance of expertise between the professional and its customer.

The content of the duty to advise

First, the duty to inform: the provider must inform the customer of the characteristics, prerequisites and limits of the solution. Next, the duty to warn: it must draw the customer’s attention to the risks of a chosen option, an unrealistic timetable or an insufficient scope. Finally, the duty to advise as such: it must guide the customer towards the solution suited to its needs, even if that means dissuading it from an inadequate choice. This duty extends to active cooperation in defining the need, in particular when drafting the specifications of a software development agreement.

The intensity of the duty and the customer’s cooperation

The intensity of the duty varies with the customer’s expertise. It is reinforced towards a lay customer and reduced towards a customer with an IT department or assisted by an adviser. In return, the customer is bound by a duty to cooperate: express its needs, provide information, take part in tests and in acceptance testing. The courts assess the respective responsibilities in the light of these reciprocal obligations and frequently apportion liability. The texts of general contract law can be consulted on Légifrance.

Key points

In practice, breach of the duty to advise is the most frequent basis for customers’ claims against their providers when a project fails. It may lead to termination of the contract, refund of the sums paid and damages. The provider protects itself through the traceability of its advice and written warnings, meeting minutes and a rigorous definition of the scope. The firm acts in these disputes for customers as well as providers, as presented on the page contracts.