LexInter | November 14, 2002 | 0 Comments

CIVIL BULLETIN – INFORMATION BULLETIN.

On the appeal brought by: 1 ° / Mr. Lucien Plessis,

2 ° / Mrs. Colette Plessis, wife separated from property of Mr. Lucien Plessis,

both living at Hotel Le Galliéni, avenue Galliéni, 83110 Sanary-sur-Mer,

in cassation of a judgment rendered on May 20, 1998 by the Aix-en-Provence Court of Appeal (1st civil chamber, section B), in favor of: 1 ° / of Mr. Jean-Luc Errera,

2 ° / of Mr. Gaston Errera,

both residing at 1044, chemin de la Calade, 83140 Six Fours Les Plages,

3 ° / of the company Hôtel Le Galliéni, a limited liability company, whose registered office is avenue de Toulon, 83110 Sanary-sur-Mer, represented by Mr. Massiani, in his capacity as liquidator,

4 ° / of Mme Jeanne Arlandi, wife Errera, residing at 1044, chemin de la Calade, 83140 Six Fours Les Plages,

5 ° / of the Galliéni real estate company (SCI), whose registered office is avenue Maréchal Galliéni, 83110 Sanary-sur-Mer,

6 ° / of Mr. Bor, residing at 59, avenue Maréchal Foch, 83000 Toulon, in his capacity as representative of the creditors in the receivership of SCI Errera,

7 ° / of the real estate company (SCI) Errera, whose registered office is avenue Maréchal Galliéni, 83110 Sanary-sur-Mer,

8 ° / of Mrs. Mireille Bes, wife of Massiani, residing at 3091, avenue de la Résistance, Cap Brun, 83000 Toulon, taken in his capacity as liquidator of the company Hôtel Le Galliéni,

9 ° / of Mme Rose-Marie Errera, wife Bricout, residing at 117, boulevard Kistling, 83110 Sanary-sur-Mer,

10 ° / of Mr. Jean-Pierre Gas, residing at 4, rue Revel, 83000 Toulon,

defendants in cassation;

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

Resources produced by SCP Ghestin, Advocate for Counseling, for the PLESSIS spouses;

FIRST MEANS OF TERMINATION

The contested invalidity judgment is criticized for having dismissed Mr. and Mrs. PLESSIS for their claims for the nullity of the sales, carried out by the acts of May 26 and July 6, 1989 for fraud and an order of the sellers to pay them the sum of 3,419,887.53 Frs in compensation for their damage;

FOR THE REASONS THAT the conditions of cancellation for fraud are not met with regard to the two complaints put forward by Mr PLESSIS because of the inexcusable nature of the error of which he claims to have been the victim, the alleged ignorance of the lack of classification in the category two stars as operation without authorization to open and non-compliance with safety rules not being admissible, or even conceivable, on his part in the context of the acquisition of the public so not only that he had an obligation particular to inquire himself given the professional nature of the operation but also that elementary checks with the ceding companies or administrative services would have easily and immediately revealed theexact administrative situation on these various points of the establishment;

that moreover, the decisive nature of the error on the defect of classification in category two stars is not demonstrated, this one not even being indicated in the deed of sale of May 26, 1989 to appear only not significantly in the preliminary presentation of the agreement of July 6, 1989, of which it did not constitute one of the objects;

that the demand for annulment and compensation under this head will therefore be rejected;

1 °) ALORS THAN the terms of the dispute are set by the respective claims of the parties; that the defendants in the action for nullity for fraud of the disputed agreements and for damages did not invoke the inexcusable nature of the error made by Mr. PLESSIS on the administrative situation of the hotel and its non-compliance with the rules of security ; that therefore opposing this means to Mr. PLESSIS to dismiss his demands, the Court of Appeal denatured the terms of the dispute violating Article 4 of the New Code of Civil Procedure;

2 °) ALORS THAN the judge must in all circumstances observe and observe himself the principle of contradiction; that by automatically raising the plea based on the inexcusable nature of the error of Mr. PLESSIS on the administrative situation of the hotel and its non-compliance with security rules, without provoking the preliminary explanations of Mr. PLESSIS on this plea, the Court of Appeal violated article 16 of the New Code of Civil Procedure;

3 °) ALORS THAN the fraud is constituted by the breach of the duty of loyalty of the contracting party constituting fraudulent reticence, without which the other contracting party would not have contracted or would have contracted at a lower price; It is common ground that the hotel object of the two disputed indivisible sales had not been the subject of an administrative authorization to open, which twice in 1984 and 1988, the Safety Commission had ordered the operators , vendors, to bring the hotel into compliance with safety standards and furthermore, the hotel had been falsely presented as classified in the two star category; that by deciding that the disloyalty of the sellers who had concealed from Mr PLESSIS these decisive elements conditioning the possibility of exploiting the

4 °) ALORS THAN the fraudulent reluctance of the sellers which caused the error of the purchaser always makes excusable the error thus caused; that considering that the error of Mr. PLESSIS caused by the fraudulent reticence and the disloyalty of the sellers was inexcusable, the Court of Appeal again violated Article 1116 of the Civil Code;

5 °) ALORS THAT in his conclusions of appeal, Mr. PLESSIS had argued that not only the sellers had concealed the absence of administrative authorization to open the hotel, the two minutes established in 1984 and 1988 enjoining the compliance of the hotel with safety rules and had falsely indicated that it was classified two stars but that in addition they had made up of defects rendering the hotel inoperable without major work (concl. p. 13 al. . 3); that by refraining from examining and responding to this peremptory plea, the Court of Appeal violated article 455 of the New Code of Civil Procedure.

SECOND MEANS OF TERMINATION

The judgment under appeal is criticized for having declared inadmissible, as news in appeal, the request of Mr. PLESSIS tending to see the sellers in solidum ordered to pay him the sum of 3,419,887.53 Frs in respect of damages on the basis of fraud and their tort liability;

FOR THE REASONS THAT in defense of the main appeal directed against him, Mr PLESSIS can question other heads of the decision referred than those referred to in his statement of appeal;

that it is not admissible, within this very framework, to formulate in appeal the new request not meeting the regulatory conditions which constitute the requests for reduction of the price and subsidiary in compensation which it claims to substitute for the principal, with the annulment of the deeds of assignment for fraud issued and admitted at first instance, and that the other appellants contest under the single global qualification of reduction action and Mr PLESSIS himself referring in his conclusions to the corresponding damages award price reduction;

that indeed, such requests do not meet the conditions of Articles 564 and 567 inclusive of the New Code of Civil Procedure which Mr PLESSIS invokes by simple reminder of these texts without specifying how they are in this case met;

that they are clearly not counterclaims;

that these claims, on all the various bases proposed, do not tend to the same ends as the initial main request to pursue the different aim of reducing the price of the transfers or of compensation without calling into question the very existence of these contracts, including on the basis of fraud in the context of which the action for damages, brought primarily and not incidentally to the action for nullity for the damage caused by the cancellation is distinct in its purpose from this last action;

that these same claims were not virtually included in the request submitted to the first judges and do not constitute the accessory, the consequence or the complement taking into account the difference of object and of goal which distinguishes them;

that finally, the various conditions of article 564 of the New Code of Civil Procedure are not themselves met, the new demands not tending to set up compensation for claims made in this body, the price of the shares and the funds not being claimed, nor to have adverse claims set aside, nor to have questions arising from the intervention of a third party or from the occurrence or revelation of a new fact that does not constitute a judgment. not the organization of the insolvency opposed to the cedants to justify the change of action whereas in particular the companies were in collective proceedings in first instance;

1 °) WHEREAS the victim of fraud can indiscriminately request the cancellation of the contract vitiated by the fraud and also request, if necessary, compensation for his damage or limit himself to requesting compensation for his damage on the tortious basis ; that by considering that the action of Mr. PLESSIS in nullity of the disputed sales for fraud and the action for damages against the sellers on the same basis were distinct, the Court of Appeal violated article 1116 of the Civil Code ;

2 °) ALORS THAN the parties can clarify in appeal the claims which were virtually included in those submitted to the first judges and add the requests which are the accessory, the consequence or the complement; that the action in damages pure fraud which is a civil tort is virtually included in the action in nullity of the conventions on the same basis; that in deciding the contrary, the Court of Appeal violated article 566 of the New Code of Civil Procedure;

3 °) ALORS IN ANY HYPOTHESIS THAT the claims are not new when they tend to the same ends as those submitted to the first judge; that the action in nullity for fraud and that in damages on the same basis tend to sanction the consequences of the contractual disloyalty of the author of the fraud; that by considering that the requests were distinct, the Court of Appeal violated article 565 of the New Code of Civil Procedure.

THIRD MEANS OF TERMINATION

The contested judgment is criticized for having dismissed Mr PLESSIS for his action for liability against Maître GAS, notary who drew up the act of July 6, 1989;

FOR THE REASONS THAT Me GAS only intervened after the conclusion of the transfers of shares of the SCI ERRERA and the business, in which the invoked damage finds its exclusive cause, which already binding the parties definitively by signature, in the presence of a real estate agency, the memorandum of understanding of May 26, 1989, the parties themselves going back to this last date their final agreement on the sale of the business itself instead of the sale of shares in the SARL HOTEL LE GALLIENI by conferring an interpretative character on the agreement of July 6, 1989 specifying the real object of this transfer;

that this agreement of July 6, 1989, drafted by Me GAS, did not have, on this last point or on its other stipulations relating to the early availability, and even retroactive from July 1, 1989, and its modalities, of funds to Mr PLESSIS, no impact on the very conclusion of disposals already final;

that Me GAS then did not have to intervene for the establishment of the authentic instrument;

that it follows from these elements and considerations that no prejudicial breach of duty of advice can not be imputed to him by Mr PLESSIS;

that the request for a declaration of responsibility and compensation will therefore also be rejected;

1 °) ALORS THAN the notary who participated in the drafting of deeds of sale is bound by a duty of advice intended to ensure the validity and effectiveness of the acts to which he brought his assistance; that Me GAS, notary draftsman of the private deed of sale of the premises and the business of the Hotel had to verify the administrative authorization to open and operate the said hotel as well as the reality of its classification in the category “two stars”; that considering nevertheless that this notary had not engaged his responsibility on the grounds that an agreement had already been reached on May 26, 1989 between the parties for the sale of the walls and the business of the hotel, the Court of Appel violated article 1382 of the Civil Code;

2 °) ALORS THAN the notary, required to ensure the validity and effectiveness of the acts to which he provides assistance, should have invited the sellers to regularize the administrative situation of the hotel whose operation was impossible in the absence of authorization to open; that, considering that no fault had been committed by Me GAS, on the grounds that an agreement had already been reached between the parties for the sale of the said hotel, the Court of Appeal violated article 1382 of the Code Civil.

THE COURTYARD,

The second plea, annexed hereafter:

Whereas having noted that the request at first instance tended to the annulment of the assignments, the Court of Appeal held exactly that the new requests on appeal and tending to the reduction of the price and in the alternative to the award of damages were not virtually included in the request submitted to the first judges and did not tend to the same ends;

From which it follows that the plea is unfounded;

But on the first way:

Having regard to article 1116 of the Civil Code;

Whereas, according to the judgment under appeal (Aix, May 20, 1998), that, following two acts, received by Mr. Gas, notary, on May 26 and July 6, 1989, the real estate company Errera (SCI) sold a building to use of a hotel by Mr. Plessis and the company Hôtel Le Galliéni (company) the business used in this building by the same purchaser; that a previous decision having accepted the request of the SCI and the company in reiteration of the transfers, Mr. Plessis assigned them in cancellation of sales for fraud; that he also requested that Mr. Gas be ordered to pay him damages; that in appeal Mr Plessis maintained his claim in subsidiary and requested title principal reduction of the price and subsidiarily the allocation of damages;

Whereas in order to dismiss Mr. Plessis of his request for annulment for fraud, the judgment holds that the conditions for such an annulment are not met with regard to the complaints put forward by Mr. Plessis because of the inexcusable nature of the error of which he maintains that he was a victim, ignorance of the operation without authorization to open and non-compliance with safety rules not being admissible on his part, although he had a particular obligation to obtain information given the professional nature of the operation and that elementary verifications with the cedants revealed to him the exact administrative situation of the establishment;

That by so ruling, for reasons which do not allow the existence of a fraudulent reticence to be excluded and whereas such a fraudulent reticence, assuming it has been established, always renders the error caused excusable, the court of appeal violated the above text;

And on the third way:

Having regard to article 1382 of the Civil Code;

Whereas in order to dismiss Mr. Plessis from his request against the notary, the judgment notes that Mr. Gas did not intervene until after the conclusion of the assignments which definitively bound the parties by signing an agreement of 26 May 1989 and that the agreement of July 6, 1989, drawn up by Mr. Gas, had no effect on the conclusion of the already definitive transfers;

That by so ruling, while the notary who participates in the drafting of deeds of sale is bound by a duty of advice intended to ensure the validity and effectiveness of the deeds to which he has provided assistance, the court of appeal violated the above text;

FOR THESE REASONS :

BREAKDOWN and CANCELED, except in that he declared inadmissible as new on appeal the requests for a reduction in the price of transfers and subsidiary compensation made, on the various bases undertaken, by Mr Plessis in substitution, in the main proceedings, for his request initial, the judgment rendered on May 20, 1998, between the parties, by the Aix-en-Provence Court of Appeal; puts, consequently, as for this, 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 Nîmes;

Orders Mr. Gas to pay the costs;

Considering article 700 of the new Code of Civil Procedure, condemns Mr. Gas to pay the Plessis spouses the sum of 12,000 francs;

Considering article 700 of the new Code of Civil Procedure, rejects Mr. Gas’s request;

Said that on the due diligence of the Attorney General near the Court of Cassation, this judgment will be transmitted to be transcribed in the margin or following the partially overturned judgment;

On the report by Mr. Pronier, referendum advisor, the observations of SCP Ghestin, lawyer for the Plessis, SCP Bachellier and Potier de La Varde, lawyer for Hôtel Le Galliéni, SCP Boré, Xavier and Boré, lawyer for Mr. Gas, the conclusions of Mr. Sodini, Advocate General; Mlle FOSSEREAU, senior advisor serving as president.

Leave a Comment

Your email address will not be published.


CAPTCHA Image
Reload Image