He added that commercial law also plays an important role, as its texts regulate sales and, above all, fair and consistent practices recognised by the courts, especially concerning culinary recipes. He also noted that administrative, rural, and tax law are similarly decisive. The challenge was mastering all these rules, scattered across different levels — global, community, and national — and synthesising them for application in France to various products. He explained that this was how it had been demonstrated that there were laws governing shrimp, cod, wine, and candy. He pointed out that the Consumer Code, which has existed in France since 1993, incorporates the 1905 law on fraud and falsification, representing a significant contribution, although many other laws still apply, such as the Penal Code and the Public Health Code. Branlard highlighted that gastronomy law was both written and largely based on custom and case law, including numerous para-regulatory texts such as ministerial circulars and decisions of the Direction générale de la concurrence, de la consommation et de la répression des fraudes. He noted that the Fraud Service “made” food law in the sense that its opinions were closely followed by manufacturers and often applied by the courts. before being purchased, there is no sale until the buyer has tasted and approved them.” Vente à degustation (emptio add gustum) or by approval, often referred to rather unhappily as “by approval,” is analysed as a unilateral promise of sale. Any ambiguity regarding the tasting must first be resolved. This is in no way a tasting prior to the sale, which is ultimately only a part of the negotiations. The specificity of the sale by tasting is that the principle of the contract is established, but without the contract being formed, the buyer reserves the right to assess the item and see if it is to their liking. The buyer’s subjective decision is entirely free. The French Supreme Court (Cour de Cassation) ruled that Article 1587 applies automatically, at least for the commodities covered (wine and oil): provided that no explicit or implicit stipulation in the contract excludes it, and that there is no contrary usage, approval of the thing is automatic (obviously for wholesale sales); mere silence regarding it cannot constitute a waiver. The consequence of a refusal is that the sales contract becomes null and void, and any deposits must be refunded. The statement in the contract that the goods must be of “fair and merchantable” quality in principle excludes approval, because this quality is assessed objectively and not subjectively (Dalloz, 3112, Contrat et période précontractuelle, page 1242, 3112.176). As Norbert Olszak notes, it is uncommon to find case law on Article 1587 of the Civil Code concerning sales by tasting, and even rarer to encounter a case where a refusal of approval after tasting is the main issue. Indeed, Article 1587 is frequently invoked even when nothing has been tasted, for example, to determine who bears the loss of goods, to justify a failure to deliver or even to contest the territorial jurisdiction of a court in cases of fraud (Recueil Dalloz 2001, 729). Since, according to the plain text, there is no sale before tasting and approval for wine, oil, and “other things that one is accustomed to tasting before purchasing,” it becomes possible to identify the owner who bears the risk. This is how the application of the principle was claimed for oats or butter, not to actually taste these products, which had moreover perished, but to exclude their property. Article 1453 of the Spanish Civil Code also states that the sale made as a trial or test of the thing sold, and the sale of things that are customarily tasted or tested before receiving them, will always be presumed to be made under a suspensive condition. XIV
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