LexInter | April 9, 2003 | 0 Comments

LAW HOGUET

 

Article 1
Amended by Law 98-566 1998-07-08 art. 3 I JORF July 9, 1998.

The provisions of this law apply to natural or legal persons who, in the usual way, engage or lend their assistance, even on an ancillary basis, to transactions involving the property of others and relating to:

1 ° The purchase, sale, exchange, rental or sublet in naked or furnished buildings built or not built;

2 ° The purchase, sale or lease-management of business assets;

3 ° The transfer of a dead or alive herd;

4 ° The subscription, purchase, sale of shares or shares in real estate companies giving rise to an allocation of premises in use or in ownership;

5 ° The purchase or sale of non-negotiable shares when the corporate assets include a building or a business;

6 ° Real estate management.

7 ° Excluding publications in the press, the sale of lists or files relating to the purchase, sale, rental or sublet in bare or furnished buildings, whether built or not. 8 ° The conclusion of any contract for the use of a timeshare property governed by Articles L. 121-60 et seq. Of the Consumer Code.

 

 

Article 2
Amended by Law 98-566 1998-07-08 art. 3 II JORF July 9, 1998.

 

The provisions of this law are not applicable:

To the members of the professions whose list will be fixed by decree, in consideration of the control to which their professional activity is subject as well as the financial guarantees they offer for the exercise of this activity;

To persons or to their spouses who, in a non-professional capacity, engage in or lend their assistance to transactions relating to property over which they have divided or undivided real rights;

To persons acting on behalf of their spouse, parents in succession, or on behalf of protected adults or minors under the conditions provided for in Titles X and XI of the Civil Code;

To the legal or statutory representatives of construction companies governed by the law of June 28, 1938 for the realization of the first transfers of units or shares. To holders of a travel agent license, under Law No. 92-645 of July 13, 1992 setting the conditions for exercising activities relating to the organization and sale of trips or stays, to the conclusion of any contract for the use of a timeshare property governed by Articles L. 121-60 et seq. of the Consumer Code.

 

Article 3
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

The activities referred to in article 1 may only be carried out by natural or legal persons holding a professional card, issued by the prefect, specifying those operations that they can perform.

This card can only be issued to natural persons who meet the following conditions:

1 ° Justify their professional aptitude;

2 ° Provide proof of a sufficient financial guarantee resulting from a guarantee specially allocated to the reimbursement of funds, bills or securities deposited or from the commitment either of a collective guarantee organization or of a banking establishment;

3 ° Take out insurance against the financial consequences of their professional civil liability;

4 ° Not be affected by one of the incapacities or prohibitions to practice defined in Title II below.

The card is only issued to legal persons if said persons meet the conditions provided for in 2 ° and 3 ° above and if their legal and statutory representatives meet the conditions provided for in 1 ° and 4 ° above.

The people who manage each establishment, branch or agency must also comply with 1 ° and 4 ° above.

 

 

Article 4
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

Any person authorized by a holder of the professional card to negotiate, mediate or engage on behalf of the latter can justify his quality and the extent of his powers under the conditions set by decree of the Council of State. The provisions of Title II of this law are applicable to him.

 

 

Article 5
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

The persons referred to in Article 1 who receive, hold sums of money, goods, effects or valuables, or dispose of them, for any reason and in any manner whatsoever, during the operations specified in the audit. article, must comply with the conditions provided for by decree of the Council of State, in particular the formalities for keeping registers and issuing receipts, as well as the other obligations arising from the mandate.

 

 

Article 6
Amended by Law 94-624 1994-07-21 art. 36 II, III JORF July 24, 1994.

 

The agreements concluded with the persons referred to in article 1 above and relating to the operations mentioned in paragraphs 1 to 6, must be drawn up in writing and specified in accordance with the provisions of a decree in Council of State. :

The conditions under which these persons are authorized to receive, pay or remit sums of money, goods, bills or values ​​on the occasion of the transaction in question;

The terms of the rendering of accounts;

The conditions for determining the remuneration, as well as an indication of the party who will be responsible for it.

The provisions of Article 1325 of the Civil Code are applicable to them.

No good, effect, value, sum of money, representative of commissions, research costs, process, advertising or mediation of any kind, is owed to the persons indicated in Article 1 or can be demanded or accepted by them, before one of the transactions referred to in that article has actually been concluded and recorded in a single written act containing the commitment of the parties.

However, when a mandate is accompanied by an exclusivity clause or a penalty clause or when it includes a clause under which a commission will be due by the principal, even if the transaction is concluded without care from the intermediary, this clause will be applied under the conditions to be fixed by decree.

No sum of money or remuneration of any kind whatsoever is due to a person who engages in the activity mentioned in 7 ° of Article 1 or can not be accepted or demanded by him prior to the conclusion of the contract. ” an agreement drawn up in writing and the delivery to the client of an original of this agreement in accordance with the provisions of Article 1325 of the Civil Code. This agreement must specify:

– the characteristics of the property sought by the client;

– the nature of the service to be provided to the client;

– the amount of the remuneration;

– the conditions for reimbursement of all or part of the remuneration when the service is not provided to the customer within the prescribed time.

 

Article 7
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

Promises and agreements of any kind relating to the operations referred to in article 1 which do not include a limitation of their effects in time are void.

 

 

Article 8
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

Obtaining or renewing the professional card gives rise to the collection of a fee for constitution and record keeping, the amount of which will be fixed by order of the ministers concerned.

 

Title II: Disabilities.

Article 9
Amended by Law 94-624 1994-07-21 art. 46 IV JORF July 24, 1994.

No one may, in the usual way, engage in or lend his assistance, even on an ancillary basis, to transactions involving the property of others referred to in Article 1 if he has been the subject of one of the convictions listed in article 1 of the law of August 30, 1947 relating to the reorganization of commercial and industrial professions or a sentence of imprisonment with or without suspension for one of the following offenses:

1 ° Forgery and use of forgery in private, commercial or banking writing, forgery provided for by articles 441-2, 441-5 and 441-6 of the penal code;

2 ° Theft, concealment, fraud, breach of trust, bankruptcy, extortion of funds, securities or signatures, offenses punishable by the penalties of fraud, breach of trust or bankruptcy;

2 ° bis Offenses punishable by the penalties provided for in article L. 121-28 or article L. 213-1 of the consumer code;

3 ° Bad faith issuance of bad-faith checks, usury and offense punishable by article 15 of law n ° 66-1010 of December 28, 1966 relating to usury, money lending and certain door-to-door operations and advertising;

4 ° Subtraction committed by public custodian, misappropriation committed by public official, corruption of public officials and employees of private companies, communications of trade secrets;

5 ° Damage to the credit of the State, organization of the collective refusal of the tax;

6 ° False testimony, false oath, subornation of witness;

7 ° Procuring or offense punishable by the penalties of procuring;

8 ° Offenses provided for by articles 423, 425, 432, 433, 434, 435, 437, 449 and 457 of law n ° 66-537 of July 24, 1966 on commercial companies;

9 ° Offense provided for by article 13 of law n ° 52-332 of March 24, 1952 relating to deferred credit companies;

10 ° Offense provided for in article 21 of the law of 13 June 1941 on the exercise of the banking profession, offense provided for in article 6, paragraph 2, of the law of 14 June 1941 relating to the regulation and organization of professions related to the banking profession;

11 ° Offense provided for by article 4 of law n ° 60-580 of June 21, 1960 prohibiting certain transaction practices relating to buildings and business assets, by articles 16, 17 and 18 of this law , and by articles 13 and 14 of law n ° 67-3 of January 3, 1967, as amended, relating to the sale of buildings to be constructed and the obligation of guarantee for construction defects;

12 ° Offense provided for by article 59 of law n ° 57-908 of 7 August 1957 tending to promote the construction of housing and collective facilities;

13 ° Offenses provided for by articles 188, 189 and 190 of the town planning and housing code.

 

 

Article 10
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

The same prohibition is incurred:

a) By unrehabilitated bankrupts and by persons struck either by personal bankruptcy or by one of the prohibitions on directing, managing, administering or controlling any commercial enterprise provided for in articles 108 and 109 of law n ° 67-563 of July 13, 1967 on judicial settlement, liquidation of property, personal bankruptcy and bankruptcy;

b) By dismissed public and ministerial officers;

c) By dismissed chartered, trustees and court administrators;

d) By disciplinary and definitive dismissed members, for breach of probity, from professions constituted as orders.

 

Article 11
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

In the event of a conviction pronounced by a foreign court and having become res judicata for an offense constituting, according to French law, one of the crimes or offenses specified in article 9, the criminal court of the domicile of the individual whose it is a question, acting in chamber of the council, declares, at the request of the public prosecutor, after verification of the regularity and the legality of the sentence, the interested party duly called, that it is necessary to the application of the aforesaid prohibition.

This prohibition applies to non-rehabilitated bankrupts whose bankruptcy has been declared by a foreign court, when the declaratory judgment has been declared enforceable in France; the request for exequatur may be, for this purpose only, made before the tribunal de grande instance of the bankrupt’s domicile, by the public prosecutor.

 

 

Article 12
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

Persons to whom the exercise of a professional activity is prohibited by this law may neither exercise this activity under cover of a third party nor be employed in any capacity whatsoever, either by the establishment they operated, or by the company which they directed, managed, administered or of which they had the signature, nor manage, direct, administer any legal person carrying out this activity. They can no longer be employed in the service of the purchaser, manager or tenant of their former business.

 

 

Article 13
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

Persons exercising a profession or activity referred to in Articles 1 and 4 who, after the publication of this law, will have incurred the prohibition resulting from the application of the preceding articles, must cease their profession or activity within three months from the time the decision becomes final. This period may be reduced or even eliminated by the court which pronounces the decision resulting in the prohibition.

The court fixes the duration of the incapacity when the judgment is pronounced. This cannot be less than five years.

However, if the sentence is pronounced for facts prior to the publication of this law, the court may not pronounce the incapacity.

 

 

Article 14
Modified by Law 2000-516 2000-06-15 art. 83 JORF June 16, 2000.

 

Persons exercising a profession or activity referred to in Articles 1 and 4, who, prior to the publication of this law, incurred the prohibition resulting from the application of the preceding articles, must cease their profession or activity within a period of three months from said publication.

However, these persons may, within this period, apply to the court which sentenced them or, in the event of multiple convictions, to the last court which ruled, either to relieve them of the incapacity of which they are affected, or to ‘determine its duration. The people who make use of this right can exercise their profession or activity until it has been decided on their request.

If the court which ruled no longer exists or if it is a foreign court, the investigating chamber of the court of appeal in whose jurisdiction the applicant has his residence is competent. The same applies if the incapacity results from a disciplinary decision.

 

 

Article 15
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

Persons not exercising a profession or activity referred to in Articles 1 and 4, who have incurred the prohibition resulting from the application of the preceding articles, may apply to the court which convicted them or, in the event of multiple convictions , to the last court which ruled, either to relieve them of the incapacity of which they are struck, or to determine its duration.

 

Title III: Sanctions.

Article 16
Modified by Ordinance 2000-916 2000-09-19 art. 3 JORF September 22, 2000 in force January 1, 2002.

 

Will be punished with a fine of 4,500 euros and, in the event of a repeat offense, a fine of 9,000 euros and imprisonment for six months or only one of these two penalties:

1 ° Any person who, in the usual way, engages or lends his assistance, even on an ancillary basis, in the transactions referred to in Article 1 without being the holder of the card instituted by Article 3 or after having ceased to fulfill the conditions to which the issuance of this card is subject to oversight;

2 ° Any person who will exercise the functions of legal or statutory representative of a legal person who, in the usual way, engages or lends his assistance, even on an ancillary basis, in the transactions referred to in Article 1 when does not meet or ceases to meet the conditions provided for in 1 ° and 4 ° of Article 3.

The same penalties are applicable to any person who, without having been authorized to do so, negotiates, negotiates or makes commitments on behalf of the holder of a professional card.

 

 

Article 17
Modified by Ordinance 2000-916 2000-09-19 art. 3 JORF September 22, 2000 in force January 1, 2002.

Anyone who contravenes the prohibition resulting from the application of Articles 9 to 12 is punished by imprisonment for a maximum of two years and a fine of at most 22,500 euros, or only one of these two penalties. .

 

 

Article 18
Modified by Ordinance 2000-916 2000-09-19 art. 3 JORF September 22, 2000 in force January 1, 2002.

 

Will be punished by imprisonment for six months and a fine of 4,500 euros or one of these two penalties only:

1 ° Any person who, during the transactions referred to in Article 1, has received or held, for any reason and in any way whatsoever, sums of money, goods, effects or values ​​of any kind, or will have disposed of:

a) Or in violation of article 3;

b) Either without having, under conditions fixed by the decree provided for in article 5, kept the documents or issued the required receipts;

2 ° Any person who has demanded or accepted sums of money, goods, effects or values ​​of any kind, in violation of the provisions of article 6;

3 ° Any person who has not communicated, at their request, to the officials responsible for the control the documents referred to in 1 ° b of this article, as well as, where applicable, any banking or accounting documents or any written mandates or who, in general, will have hindered the exercise of the mission of these officials.

Title IV: Miscellaneous provisions.

Article 19
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

Law n ° 60-580 of June 21, 1960 prohibiting certain practices in matters of transactions relating to buildings and businesses and supplementing article 408 of the penal code, is repealed as of the entry into force of this law, to the exception of the modification made to article 408 of the penal code by article 5 of the said law.

The provisions of this law will come into force on the first day of the sixth month following the publication of the decree provided for in the following article.

Until that date, the provisions of Law No. 60-580 of June 21, 1960 and the texts adopted for its application remain in force.

 

 

 

Article 20
Created by Law 70-9 1970-01-02 JORF January 4, 1970 in force January 1, 1973.

 

The conditions of application of this law will be fixed by a decree of the Council of State.

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