legislative texts
LexInter | August 29, 2002 | 0 Comments

LEGISLATIVE TEXTS

On the appeal brought by: 1 ° / Mr. Jean Claude Olie, residing at 96, chemin de Montrey, 69110 Saint-Foy-les-Lyon, 2 ° / Ms. Martine Olie, residing at 18, chemin de Montfleury, Versoy (Switzerland), 3 ° / Mrs Catherine Olie, residing 42, rue de la République, 78100 Saint-Germain-en-Laye, 4 ° / Miss Paulet Marianson, residing 61, rue Jules Ferry, 78400 Chatou, in cassation of the judgment delivered on 16 April 1998 by the Nîmes Court of Appeal (1st civil chamber), in favor of: 1 ° / of the municipality of Nîmes, taken in the person of its current mayor domiciled at the Town Hall of the said municipality Place de l ‘Hôtel de Ville, 30,000 Nîmes, 2 ° / of the SAEM of equipment of Nîmes Sud Senim, whose head office is Hotel de Ville, 30,000 Nîmes, defendants at the cassation;

The applicants invoke, in support of their appeal, a single ground of appeal annexed to this judgment;

Medium produced by the SCP Guiguet, Bachellier and Potier de la Varde, lawyer with the Councils for the Oli consorts

MEANS OF TERMINATION

The plea criticizes the judgment under appeal to have declared inadmissible the request for rescission of the sale for injury;

FOR THE REASONS THAT the OLIE consorts admit that the authentic deed of sale of 23 March and 22 April 1992 for a price of 1.350.000 Francs is the exact translation of the will of the parties expressed in the prior private deed dated of October 28, 1991 by which they promised to sell to SENIM or to any natural or legal person that would replace the property in dispute, stipulating the condition of an option being exercised by January 31, 1992 at the latest; that it is common ground that the SENIM Company accepted the promise to sell on December 15, 1991 and that it exercised the option on January 25, 1992, either within the period prescribed by the private deed and on a regular basis by letter registered with acknowledgment of receipt; what’ article 1676 stipulates that the request for rescission of sale due to injury is no longer admissible after the expiration of two years from the date of the sale; that it follows from case law that the period of two years starts from the day of the agreement of the wills and not from the decision which notes the existence of sale and that by exception, it starts from the day of the signing of the deed authentic if there is a modification of the object of the sale between the two acts; that consequently, in the absence of modification of the object of the sale, the SENIM having accepted the promise of sale on December 15, 1991, it is at the latest on December 16, 1993 that the action for rescission should have been committed to be declared admissible; expiration of two years from the day of sale; that it follows from case law that the two-year period starts from the day of the agreement of the wills and not from the decision which notes the existence of sale and that by exception, it starts from the day of the signing of the deed authentic if there is a change in the object of the sale between the two acts; that consequently, in the absence of modification of the object of the sale, the SENIM having accepted the promise of sale on December 15, 1991, it is at the latest on December 16, 1993 that the action for rescission should have been committed to be declared admissible; expiration of two years from the day of sale; that it follows from case law that the two-year period starts from the day of the agreement of the wills and not from the decision which notes the existence of sale and that by exception, it starts from the day of the signing of the deed authentic if there is a modification of the object of the sale between the two acts; that consequently, in the absence of modification of the object of the sale, the SENIM having accepted the promise of sale on December 15, 1991, it is at the latest on December 16, 1993 that the action for rescission should have been committed to be declared admissible; it starts from the day of the signing of the authentic instrument if there is a modification of the object of the sale between the two acts; that consequently, in the absence of modification of the object of the sale, the SENIM having accepted the promise of sale on December 15, 1991, it is at the latest on December 16, 1993 that the action for rescission should have been committed to be declared admissible; it starts from the day of the signing of the authentic instrument if there is a modification of the object of the sale between the two acts; that consequently, in the absence of modification of the object of the sale, the SENIM having accepted the promise of sale on December 15, 1991, it is at the latest on December 16, 1993 that the action for rescission should have been committed to be declared admissible;

ALORS THAT in the event of a unilateral promise of sale, the time limit for the action for rescission of the sale for injury runs from the day of the regularization of the sale by deed when the parties have intended to subordinate the completion of the sale to the signature of this act; that thus in the present case where it was stipulated in the promise of October 28, 1991 that the realization of the sale would be made by notarial act on the condition that the request is made by the beneficiary within three months, the Court of Appeal, considering that the sale was perfect as soon as the option was exercised by SENIM in the absence of modification of the object of the sale between the promise and the notarial deed, violated articles 1134, 1589 and 1676 of the Civil Code.

THE COURT, in the public hearing of February 23, 2000, where were present: Mr. Beauvois, president, Mr. Pronier, referendum adviser rapporteur, Miss Fossereau, MM. Boscheron, Toitot, Mrs. Di Marino, Mr. Bourrelly, Mrs. Stéphan, MM. Peyrat, Guerrini, Dupertuys, Philippot, advisers, M. Baechlin, advocate general, Mlle Jacomy, chamber clerk;

On the sole means:

Whereas, according to the judgment under appeal (Nîmes, April 16, 1998), that, following an act of October 28, 1991, the Olie consorts promised to sell a plot of land to the Senim company, for the price of 1,350,000 francs; that the company Senim accepted the promise on December 15, 1991 and exercised the option on January 25, 1992; that the sale was reiterated by authentic act of 23 March and 22 April 1992; that the company Senim sold the plot for the price of 3 415 680 francs; that, on March 1, 1994, the consorts Olie assigned the company Senim in rescision of the sale for lesion;

Whereas the Olie consorts object to the judgment declaring their request inadmissible, then, according to the means, ‘that in the event of a unilateral promise of sale, the time limit for the action for rescission of the sale for injury runs from the day the regularization of the sale by authentic deed when the parties have intended to make the completion of the sale conditional on the signing of this deed; that thus in the present case where it was stipulated in the promise of October 28, 1991 that the realization of the sale would be made by notarial act on the condition that the request is made by the beneficiary within three months, the court of appeal, considering that the sale was perfect from the exercise of the option by Senim in the absence of modification of the object of the sale between the promise and the notarial deed, 1589 and 1676 of the Civil Code ‘;

But given that having noted exactly that the two-year period provided for by article 1676  of the Civil Code started from the day of the agreement of the will and noted that the company Senim had exercised the option on January 25, 1992 and that it there had been no modification of the object of the sale between the private deed worth a promise of sale and the authentic deed, the court of appeal was able to deduce that the action for rescission, initiated on the 1st March 1994, was late;

From which it follows that the plea is unfounded;

FOR THESE REASONS :

DISMISSES the appeal;

Condemns the Olie consorts to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns the Olie consorts to pay the municipality of Nîmes the sum of 9,000 francs.

On the report of Mr. Pronier, referendum advisor, the observations of the SCP Guiguet, Bachellier and Potier de la Varde, lawyer of the consorts Olie, of the SCP Masse-Dessen, Georges and Thouvenin, lawyer of the municipality of Nîmes, the conclusions Mr. Baechlin, Advocate General, and after having deliberated in accordance with the law; M. BEAUVOIS president.

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