THE COURT OF CASSATION FIRST CIVIL CHAMBER Limited training
LexInter | November 16, 2002 | 0 Comments

THE COURT OF CASSATION, FIRST CIVIL CHAMBER. Limited training.

April 4, 2001. Judgment n ° 670. Cassation.

Appeal No. 98-23.157.

CIVILIAN BULLETIN.

NOTE  Noblot, Cyril, La Semaine Juridique, General Edition, n ° 50, December 12, 2001, pp. 2301-2303   

On the appeal brought by:

1 ° / Mr. Michel Deplanque,

2 ° / Mr. Bernard Deplanque,

both living rue des fontaines, 80300 Miraumont,

in cassation of a judgment rendered on September 28, 1998 by the Paris Court of Appeal (1st civil chamber, section A), in favor of:

1 ° / of Mr. Jean-Marie Camus, residing 64, rue Saint-Fursy, BP 193, 80204 Péronne Cedex,

2 ° / of the General Insurance and Provident Society (SGAP), whose registered office is 50, rue de Chateaudun, 75442 Paris Cedex 09,

defendants in cassation;

The applicants invoke, in support of their appeal, the two grounds of cassation annexed to this judgment;

Resources produced by the SCP Parmentier and Didier, Advocate for the Councils, for the DEPLANQUE consorts;

FIRST MEANS OF TERMINATION

The judgment under appeal is criticized for having dismissed the DEPLANQUE consorts of their claims for compensation against Mr. Jean-Marie CAMUS;

FOR THE REASONS THAT the appellants maintain that the damage for which they claim compensation, results from the fact that their dispute of the leave was declared time-barred, for disregard of the time limit of Article L. 411-54 of the Rural Code, without their having been able have their requests examined on the merits by the competent courts; that however this circumstance is not sufficient to establish their damage; that indeed, consorts DEPLANQUE, maintaining that Madame HEQUET did not meet the conditions of personal exploitation of the plot taken back, have, after the stop of January 4, 1989, brought an action in reinstatement against him; that by decision rendered on October 13, 1993, the Paritary Court of Rural Leases of PERONNE rejected their request thus validating, as to its substantive conditions, the repossession of the land by its owner; that therefore, even assuming that their application to challenge leave, declared inadmissible following the deficiencies of their lawyer, had been examined on the merits, the appellants do not establish that they had a chance of seeing their claims relating to the use of the plot;

1 °) ALORS THAN the real and serious nature of the lost chance must be assessed with regard to the probability of success of the action which has not been initiated; that by referring to a subsequent and different procedure, known as reinstatement, to assess this probability of success and not to the relevant procedure for contesting the leave which could not be completed five years previously, the Court of Appeal violated article 1149 of the Civil Code;

2 °) ALORS THAN the judge can not disregard the terms of the dispute as set by the parties in their conclusions; that the exhibitors argued in their conclusions the loss of a chance to see the holiday declared void; that therefore by ruling on the loss of a chance to exploit the plot with regard to the conditions of reinstatement, the Court of Appeal violated Article 4 of the new Code of Civil Procedure.

SECOND MEANS OF TERMINATION

The judgment under appeal is criticized for having dismissed the DEPLANQUE consorts of their claims for compensation against Mr. Jean-Marie CAMUS;

FOR THE REASONS THAT it is established that Mr. Jean Marie CAMUS, lawyer of Mr. Michel DEPLANQUE, was informed by the latter, on May 20, 1987, of the leave issued on March 24, 1987 by Mrs. HEQUET who intended to resume for his benefit the funds belonging to him; that it was up to Mr. Jean-Marie CAMUS, lawyer by profession, to spontaneously and clearly inform his client, Mr. DEPLANQUE, farmer wishing to continue operating the plot of which he was a tenant, of the imperative nature attached to the deadline for four months provided for in article L. 411-54 of the Rural Code to contest the recovery action brought by the owner of this property; that it is therefore rightly that the referred judgment noted that Mr. Jean Marie CAMUS had failed in his duty of advice; that the appellants maintain that the damage for which they claim compensation, results from the fact that their dispute of the leave was declared time-barred, for disregard of the time limit of article L.411-54 of the Rural Code, without their having been able to examine on the merits of their requests by the competent courts; however that this circumstance is not sufficient to establish their damage;

ALORS THAN judges are required to respond to the means of conclusions which they are seized; that in their conclusions of appeal, the DEPLANQUE consorts argued in particular that Master CAMUS had advised them to contest the foreclosure of the action for nullity of the leave first in appeal and then in cassation and that, being able to ignore that only the state of the constant jurisprudential interpretation in matters of foreclosure of the leave, these actions were doomed to failure, Maître CAMUS had committed a fault in his duty to advise; that by leaving unanswered the means of the conclusions of the DEPLANQUE consorts asking for compensation for their damage in this respect, the Court of Appeal violated article 455 of the new Code of Civil Procedure.

THE COURTYARD,

Acknowledges the Deplanque consorts that they declare that they are withdrawing their appeal in that it is directed against the General Insurance and Provident Society (SGAP);

Whereas Mr. Michel Deplanque who operated, under a rural lease, a plot of approximately 6 hectares, contacted Mr. Camus, lawyer, for the purpose of obtaining the authorization to transfer his lease to his son Bernard Deplanque ; that, by act of March 24, 1987, his lessor, Mrs. Hequet, notified him a leave for purposes of recovery for personal exploitation; that he gave this leave to his lawyer who did not do any diligence to contest it within the period of 4 months; that, by judgment of 17 February 1988, the joint court of rural leases found that Mr Deplanque was foreclosed to assert any means whatsoever against this act; that he, moreover, authorized the cession of the lease until its term, that is to say until September 30, 1988; that by judgment of January 4, 1989, the court of Amiens appeal upheld the judgment and ordered the eviction of the lessee, the lease having expired; that the appeal against this decision was rejected; that subsequently, consorts Deplanque formed a request for reinstatement which was rejected by a judgment of 13 October 1993; queimant that their lawyer, by failing to contest leave within the legal period, had committed a fault having deprived them of a chance to see it cancel, the consorts Deplanque brought an action responsibility against him; that the confirmatory judgment attacked the rejected this request; the Deplanque consorts lodged a request for reinstatement which was rejected by a judgment of 13 October 1993; queimant that their lawyer, by failing to contest leave within the legal period, had committed a fault having deprived them of a chance to see it cancel, the consorts Deplanque brought an action responsibility against him; that the confirmatory judgment attacked the rejected this request; the Deplanque consorts lodged a request for reinstatement which was rejected by a judgment of 13 October 1993; queimant that their lawyer, by failing to contest leave within the legal period, had committed a fault having deprived them of a chance to see it cancel, the consorts Deplanque brought an action responsibility against him; that the confirmatory judgment attacked the rejected this request;

On the first plea, taken in its first branch:

Having regard to article 1149 of the Civil Code;

Whereas when the damage resides in the loss of a chance of success of a legal action, the real and serious nature of the lost chance must be assessed with regard to the probability of success of this action;

Whereas to dismiss the Deplanque consorts from their action, the Court of Appeal, after noting that a judgment of October 13, 1993 had rejected their request for reinstatement in the plot which was the subject of the leave issued on March 24, 1987, considered that they did not establish that they had a chance to see their claims relating to its exploitation prosper;

Whereas by thus relying on the result of a subsequent reinstatement procedure to assess the loss of a chance for the Deplanque colleagues to succeed in an action for nullity of leave, whose conditions of exercise were different and which should have been brought five years ago, the Court of Appeal violated the aforementioned text;

And on the second means:

Considering article 455 of the new Code of Civil Procedure;

Whereas by leaving unanswered the conclusions of the Deplanque consorts, arguing that by advising them to contest the foreclosure of the action for the annulment of the leave without being able to ignore that in the state of the case law this claim was doomed to the ‘failure, Mr. Camus had failed in his obligation to advise thus causing them a distinct prejudice for which they sought compensation, the Court of Appeal disregarded the requirements of the aforementioned text;

FOR THESE REASONS, and without there being any need to rule on the remainder of the complaints:

BREAK AND ANNUL, in all its provisions, the judgment rendered on September 28, 1998, between the parties, by the Paris Court of Appeal; returns, consequently, the cause and the parts in the state where they were before the aforementioned judgment and, to be done right, returns them before the court of appeal of Paris, otherwise composed;

Orders M. Camus to pay the costs;

Considering article 700 of the new Code of Civil Procedure, rejects the request of Mr. Camus;

Said that on the diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed on the sidelines or following the broken judgment;

On the report of Mrs. Cassuto-Teytaud, referendum advisor, the observations of the SCP Parmentier and Didier, lawyer of consorts Deplanque, of the SCP Boré, Xavier and Boré, lawyer of Mr. Camus, the conclusions of Mrs. Petit, general counsel; M. LEMONTEY, president.

 

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