SUSPENSIVE CONDITION AND NOTARIAL LIABILITY
LexInter | February 9, 2009 | 0 Comments

SUSPENSIVE CONDITION AND NOTARIAL LIABILITY

FRENCH REPUBLIC

IN THE NAME OF THE FRENCH PEOPLE

IN THE NAME OF THE FRENCH PEOPLE

THE COURT OF CASSATION, COMMERCIAL, FINANCIAL AND ECONOMIC CHAMBER, delivered the following judgment:

On the appeal brought by:

1 / Mrs. Ingrid Hesse, wife Bey,

2 / Miss Nadia Bey,

both living at 51, rue de la Victoire, 75009 Paris,

in cassation of a judgment rendered on April 6, 1999 by the Caen Court of Appeal (1st chamber, civil section), in favor of:

1 / from Mr. Joseph Vereecke, residing route de Moulins, 61550 La Ferté-Fresnel,

2 / by Mr. Patrick Bartert,

3 / Mrs. Murielle Jarry, wife Bartert,

living together 32, rue Victor Hugo, 14800 Deauville,

4 / of Mrs. Sylvie Criquet, residing at 10, rue Alibert, 75010 Paris,

5 / of Mrs. Florence Paris, wife Criquet, residing at 2, quai de la Marine, 14800 Deauville,

6 / from Mrs Laurence Criquet, residing on Chemin de l’Ecole, 14130 Tourville-en-Auge,

defendants in cassation;

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

THE COURT, composed according to article L. 131-6, paragraph 2, of the Code of judicial organization, in the public hearing of November 20, 2001, where were present: Mr. Dumas, president, Mrs. Mouillard, referendum advisor rapporteur, Mr. Métivet, advisor, Ms. Moratille, chamber clerk;

On the report by Ms. Mouillard, referendum advisor, the observations of SCP A. Bouzidi, lawyer for Mmes Bey, for SCP Boré, Xavier and Boré, lawyer for M. Vereecke, for SCP Christian and Nicolas Boullez, lawyer for the spouses Bartert and the Criquet consorts, the conclusions of Mr. Viricelle, Advocate General, and after having deliberated in accordance with the law;

Whereas it follows from the judgment under appeal (Caen, April 6, 1999) that, according to two private deeds drawn up by Mr. Vereecke, notary at La Ferté-Fresnel, Mr. Gérald Criquet promised to sell to Ms. Ingrid and Ms. Nadia Bey a building for commercial and residential use located in Deauville and Mr. and Mrs. Bartert have promised to sell them the business that was operated there, Ms. Bey paying various sums as security for their commitments and the authentic acts before be established no later than May 31, 1993; that on this date, Mr. Vereecke drew up a report of deficiency of the purchasers; that Ms. Bey assigned the Bartert spouses, the Criquet consorts and Mr.

On the first plea:

Whereas Ms Bey criticized the judgment for the rejection of their requests, so, according to the plea, they were asserting the potestative nature of the condition stipulated in the two acts under which each of the sales was linked to the other, the two sales forming “an inseparable whole”, inviting the Court of Appeal to note that the refusal by any of the promisers entailed the annihilation of the second sale at the goodwill of the promisers; that having noted the terms of the condition according to which the two compromises formed an inseparable whole and retained that this condition suspending the execution of each of the sales to the realization by the buyers of

But given that by retaining that the condition which suspended the execution of the sale of each of the two goods from the execution of the sale of the other good to the same buyers by a third party was not purely potestative since each of these sales had been the subject of a compromise which fixed the conditions and from which the parties could not be released without incurring a significant financial penalty, the court of appeal legally justified its decision without being required to proceed to the research targeted by the means; that it is unfounded;

On the second plea, taken in its two branches:

Whereas Ms. Bey still make the same complaint at the judgment then, according to the means:

1 / that they argued that the planned acquisitions were subject to the condition precedent of the sale of their own business located in Paris, the importance of the period separating the promises to sell from the final acts demonstrating that this condition had entered into the contractual field, by inviting the court of appeal to note that the notary, in his conclusions, indicated that the cash payment “of course assumed not only the sale of their business in Paris but also that they had them- even the possibility of the sale while not excluding their additional request for a deadline and has moreover demonstrated it, the use of a bridging loan “(responsive conclusions p. 5); that

2 / that they argued that the planned acquisitions were subject to the condition precedent of the sale of their own business located in Paris, the importance of the period separating the promises to sell from the final acts demonstrating that this condition had entered into the contractual field, by inviting the court of appeal to note that the notary, in his conclusions, indicated that the cash payment “of course assumed not only the sale of their business in Paris but also that they had them- even the possibility of the sale while not excluding their additional request for a deadline and has moreover demonstrated it, the use of a bridging loan “(responsive conclusions p. 5); that

authentic deed in order to allow them to sell their funds is not sufficient to establish that the parties had the common intention of making this sale a condition precedent; that the means is founded in any of its two branches;

And on the third means, taken in its five branches:

Whereas Ms. Bey make the same complaint at the judgment, then, according to the means:

1 / that they asserted the breaches of the notary in his obligation to advise, the notary, having full knowledge of the fact that, in order to pay the cash price of the two acquisitions, they had to proceed with the sale of their fund of trade, not having advised them on the need to insert a condition precedent in the compromises; that having noted that the notary recognized that the period of regularization, of an unusual length, had been envisaged to allow them to sell their business and thus finance the acquisitions, then retained that it is not disputed that Mr. . Vereecke did not intervene in the negotiation of the disposals,

2 / that they asserted the breaches of the notary in his obligation to advise, the notary having full knowledge that, in order to pay the cash price of the two acquisitions, they had to proceed to the sale of their business beforehand , not having advised them on the need to insert a suspensive condition in the compromises; that having noted that the notary recognized that the period of regularization, of an unusual length, had been envisaged to allow them to sell their business and thus finance the acquisitions, then retained that it is not disputed that Mr. . Vereecke did not intervene in the negotiation of the disposals,

3 / that the notary cannot decline the principle of his responsibility by alleging that he only gave the authentic form or under private signature to the transactions concluded by the parties, the notary professionally required to enlighten the parties on the consequences of their acts not being able to decline his responsibility by alleging to have confined themselves to giving form to the declarations received by him; that having noted that the notary recognized that the period of regularization, of an unusual length, had been planned to allow Ms. Bey to sell their business and thus finance the acquisition in cash, that it is not disputed that the notary did not intervene in the negotiation of the assignments,

4 / that, whatever the transaction concluded, the notary is bound by a duty of advice; that by affirming that it was not up to the notary responsible for drafting the compromises to engage in specific investigations concerning the financing of a simple transaction concluded between traders, while noting that the notary had drawn up the acts containing the indication of the significant prices to be paid in cash, which the notary admitted to be aware of that the 9-month period had been granted to Ms. Bey in order to allow them to sell their business and thus finance the acquisition, the court appeal violated article 1147 of the Civil Code;

5 / that by affirming that it is finally necessary to observe that the condition that the appellants reproach the notary for not having inserted in the acts is often recognized as having a potestative character, that it is curious that they reproach the notary of not having inserted a condition which they consider would have vitiated the acts, the court of appeal, which does not specify how such a condition would have constituted a potestative condition, did not thereby legally justify its decision with regard to article 1174 of the Civil Code, together article 1147 of the said Code;

But given that having noted that the notary was only required to give form to the agreements reached by the parties, all traders, before his intervention, the judgment retains, for proper and adopted reasons, that Ms. Bey do not demonstrate having ignored the obvious risks involved in their plan to buy the building and the business with the only resources coming from the sale of their Parisian establishment, without having inserted in the compromises a clause subordinating the regularization of these acts to the sale of their hotel-restaurant in Paris, that it is not established that the sellers would have accepted a clause allowing Ms. Bey, after a particularly long period, toto avoid the indemnities which would have compensated them for the immobilization of their property, that finally, if they had wished, Ms. Bey could, given the consistency of their heritage, obtain without difficulty a bridging loan;

that from these findings and statements deduced from its sovereign assessment of the facts of the case, and exclusive of distortion, the court of appeal, which legally justified its decision, was able to decide that no fault could be blamed on the notary for not having encouraged Ms. Bey to subordinate their commitments to the condition precedent of the sale of their business; that the means which, in its first four branches, is unfounded and its last aims a reason overabundant judgment, can not be accepted;

FOR THESE REASONS :

DISMISSES the appeal;

Orders Ms. Bey to pay the costs;

Having regard to article 700 of the new Code of Civil Procedure, condemns Ms Bey to pay, on the one hand to Mr and Mrs Bartert and to Ms Criquet a sum of 1,500 euros, on the other hand to Mr Vereecke a sum of 1,500 euros, and rejects their request;

Thus done and judged by the Court of Cassation, Commercial, Financial and Economic Chamber, and pronounced by the President in his public hearing on January fifteenth, two thousand and two.

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