Pact of preference
The pact of preference is a contract by which the owner of a good undertakes, if he comes to sell it, to sell it by preference to the beneficiary, at the price fixed, or to say by expert or at the price proposed by a potential buyer
Sanction of the preference pact
The preference pact was the subject of a reversal of jurisprudence through a judgment of the mixed chamber May 26, 2006. Since a judgment of May 4, 1957, the dominant case law refused to grant the beneficiary of an ousted preferential agreement the right to replace the third party.
In its judgment of the mixed chamber, the Court of Cassation decided that “the beneficiary of a preferential agreement is entitled to demand the cancellation of the contract entered into with a third party in disregard of his rights and to obtain its substitution. to the purchaser ”, provided that“ the third party was aware, when he contracted, of the existence of the preference pact and of the beneficiary’s intention to avail himself of it ”.
The annual report of the Court of Cassation specifies this double condition is justified by the fact that an action for annulment and replacement runs up against the rights that the third party may have acquired in good faith, which then characterizes a legal impossibility of obtaining against him the forced execution of the pact. But when the bad faith of the third party is thus characterized, the substitution of the beneficiary in his rights is the only way to give the commitment of the promisor the effect expected by the beneficiary and, thereby, to ensure full effectiveness. of this type of convention.