RESCISION FOR LESION
LexInter | November 2, 2002 | 0 Comments

RESCISION FOR LESION

CIVIL CODE
Section II: Rescission of the sale due to injury
Article 1674
If the seller has been injured by more than seven-twelfths in the price of a building, he has the right to request the rescission of the sale, even if he has expressly waived in the contract the right to request this rescission, and that ‘he would have declared to give the surplus value.
Article 1675
(Law of November 28, 1949 Official Journal of November 29, 1949)

To find out if there is an injury of more than seven twelfths, the building must be estimated according to its condition and value at the time of sale.
In the event of a unilateral promise to sell, the lesion is assessed on the day of completion.

Article 1676
he request is no longer admissible after the expiration of two years, from the day of the sale.
This period runs against married women and against absentees, adults under guardianship and minors coming from the head of an adult who has sold.
This period also runs and is not suspended for the duration of the time stipulated for the repurchase agreement.
Note under the judgment of the 3rd Civil Chamber of the Court of Cassation , March 29, 2000, Consorts Olie and others against Municipality of Nîmes and others, Guével, Didier, La Gazette du Palais, n ° 310, 05/11/2000 , pp. 5-6
Article 1677
Proof of the lesion can only be admitted by judgment, and only in the case where the articulated facts are sufficiently probable and serious enough to give rise to the presumption of the lesion. v. Cass. 3rd civ. December 16, 1998
Article 1678
 This proof can be done only by a report of three experts, who will be required to draw up a single joint report, and to form only one opinion with the plurality of votes.
Article 1679
 If there are different opinions, the minutes will contain the reasons, without it being allowed to make known what opinion each expert was.
Article 1680
The three experts will be appointed ex officio, unless the parties have agreed to appoint all three jointly.
Article 1681
 In the event that the action for rescission is allowed, the purchaser has the choice either to return the thing by withdrawing the price he paid for it, or to keep the fund by paying the supplement of the fair price, under the deduction one-tenth of the total price.
The third party owner has the same right, except his guarantee against his seller.
Article 1682
If the purchaser prefers to keep the thing by providing the supplement regulated by the preceding article, he owes the interest of the supplement, from the day of the request for rescission.
If he prefers to return it and receive the prize, he returns the fruits of the day of the request.
The interest on the price he has paid is also charged to him from the day of the same request, or from the day of payment, if he has not received any fruits.
Article 1683
 Rescission for injury does not take place in favor of the buyer.
Article 1684
It does not take place in all sales which, according to the law, can only be made by authority of justice.
Article 1685
The rules explained in the previous section for the cases where several have sold jointly or separately, and for the one where the seller or the buyer has left several heirs are similarly observed for the exercise of the action for rescission.

 

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