TERMINATION AND DAMAGES AND INTEREST

THE COURT OF CASSATION, SECOND CIVIL CHAMBER, delivered the following judgment:Whereas, according to the contested confirmatory judgment (Chambéry, August 29, 2006) and the productions, that Mr X .., real estate developer, manager of the Société expansion foncière foncière et industrielle (SEFII), insured with the company Assurances générale de France IART (AGF), carried out work for a building in the Le Village du Glacier residence for which the municipality of Chamonix-Mont-Blanc (the municipality) issued a building permit, without specifying the height of the building; that by a judgment of October 8, 1992, the Court of Appeal of Chambéry condemned Mr. X … to the compliance of the building whose height was to be limited to 7 meters compared to the natural ground, under penalty500 francs per day of delay; that Mr X .. has assigned the mayor of the town, the union of the co-owners of the residence Le Village du Glacier and the AGF for the purposes of contesting various statements of recovery issued under the penalty imposed by the judgment of October 8 1992; that by order of January 25, 2001, following an expert report, the execution judge declared himself incompetent to hear requests relating to the penalty payment and, in particular, said that the AGF had to guarantee MX. . according to the contractual obligations and dismissed the latter of his claim for damages brought against the municipality;
On the first plea:
Whereas Mr X … criticizes the judgment to condemn him to bear the costs necessary for the establishment of a descriptive state of division and of an amending co-ownership regulation, as well as the cost of the work of bringing back into conformity and the damages resulting from the execution of this work, such as the costs of filing applications for building permits, to dismiss his requests, especially for the implementation of the guarantee of the company AGF, and to order him to pay the costs , then, according to the means:

1 ° / that any judgment must be motivated under penalty of nullity and that the contradiction between the reasons, or between the reasons and the device, is equivalent to a lack of reasons; that in this case, the Court of Appeal noted on the one hand, that the syndicate of co-owners was responsible for materially carrying out the work to bring building F into conformity, under certain conditions, and that neither Mr. nor the AGF could be condemned to carry out this work insofar as they did not own the premises, being simply required to pay the cost of compliance, on the other hand, that the penalty pronounced by the criminal jurisdiction for the setting in conformity of the building was intended to force Mr X … to achieve materially the work, personal obligation; that the court of appeal decided that the company of insurance AGF which had to guarantee Mr X … consequences pécuniaire and material of his liability civil did not cover the penalty ; that, however, the penalty was well part of the costs put in charge of Mr X … for the setting in conformity, arising from his commitment of responsibility; that ruling as it did, by contradictory reasons, the Court of Appeal did not meet the requirements of Article 455 of the Code of Civil Procedure;

2 ° / that the judge has the obligation not to distort the documents of the cause; that the judges on the merits only have the power to interpret the conventions if they are obscure or ambiguous but they cannot, under pretext of interpretation, alter the meaning of a clear and precise writing; in the present case, the court of appeal refused the assumption of responsibility by the company AGF of the penaltyimposed on Mr X … within the framework of his commitment of responsibility for the setting in conformity of the building; that the court of appeal ruled that since a final judgment of 13 December 1995, the company AGF had to guarantee Mr X … consequences pecuniary and material of his civil responsibility for the construction litigious; that, nevertheless, the Court of Appeal considered that this guarantee did not cover the penalty because it did not appear in the definition of the risks guaranteed by the policy, the insurer not having to bear the consequences of the penalty. resistance of its insured; that, however, without distinction as to the penaltiess, the purpose of the policy was to guarantee, whatever the nature of the liability, for all causes of damage, the pecuniary consequences of civil liability; that the penalty s were indeed the consequence of the engagement of civil responsibility of the insured; that thus, distorting the insurance contract taken out with AGF, the Court of Appeal disregarded the provisions of Article 1134 of the Civil Code and the principle according to which the judge has the obligation not to distort the case documents;

But since the penalty is independent of damages and has, by its very nature,

And whereas the Court of Appeal, which did not rule on the liquidation of the penalty payment but only on the question of whether the guarantee offered by the insurance policy covered the penalty payment , found that it this did not appear in the definition of the risks guaranteed by the liability insurance contract taken out by Mr X …; that she has rightly deduced, without contradiction, that the insurer did not have to support the condemnation to a penalty and did not have to bear the consequences of the resistance of its insured;

From which it follows that the plea is unfounded;
On the second plea:
Whereas Mr X … criticizes the judgment for ruling as it did, especially rejecting his claim for damages, then, according to the means:

1 ° / that each is responsible for the damage he caused by his fault which may consist of negligence or recklessness; that the municipality which issues a building permit without verifying that the project submitted to it corresponds to the requirements of the land use plan, commits a fault engaging its civil liability, when the beneficiary of the permit has built irregularly in accordance with the issued permit ; in the present case, it is established that the town issued a building permit on January 28, 1988 without any concern about the height of the buildings with regard to the land use plan; that Mr X … began work in 1988 which were completed on July 17, 1990; that non-respect heights led to procedures condemning Mr X … while he was respectful of the permit issued; that, consequently, by refusing to retain the civil responsibility of the commune, the court of appeal violated articles 1382 and 1383 of the civil code;

2 ° / that each one is responsible for the damage which he caused by his fault which can consist in a negligence or an imprudence, even by abstention; in the present case, it is established that the town issued a building permit on January 28, 1988 without any concern about the height of the buildings with regard to the land use plan; that if the work was interrupted on December 21, 1989, the municipality authorized the resumption of it from the beginning of January 1990; that the company SEFII was invited to file a building permit modifying, without precision other, whereas the work was very largely advanced, to the knowledge of the commune; that having been carried out, the company SEFII is nevertheless seen to oppose a refusal of the commune on July 12, 1990, for non-respect of the heights, whereas the works were completely completed on July 17, 1990; that, consequently, by refusing to retain the civil responsibility of the commune, the court of appeal violated articles 1382 and 1383 of the civil code;

3 ° / that the fault can consist as well in an abstention as in a positive act; that abstention chosen while the situation of fact order to act, including in the presence of a simple possibility offered by the texts, does not remove the behavior its faulty character; in the present case, to rule out civil liability of the municipality, the Court of Appeal noted that the texts did not oblige the municipality to undertake the work; that, however, having the option of having work carried out, as observed, faced with the situation, having refused a modification permit after having granted a permit without being interested in the heights of the buildings, the municipality preferred to abstain, thus causing certain and direct damage to Mr X ..; that ruling as it did, the court of appeal did not meet the requirements of Articles 1382 and 1383 of the Civil Code;

But given that, for own and adopted reasons, the judgment retains that it was up to Mr X … to respect the land use plan, the limitation of 7 meters appearing even in the request for a building permit filed by him. ; that if initially the municipality had issued the building permit on January 28, 1988 without taking into account the height of building F by simply asking that the adjoining buildings be separated by pedestrian streets, it took an interruptive decree of work on December 21, 1989 after finding that the height imposed by the POS was exceeded; that it authorized the resumption of work, after commitment of a compliance relating to the height of the building; that finally,
that these findings and statements, the Court of Appeal was able to deduce that Mr X … was not founded to engage the responsibility of the town;

From which it follows that the plea is unfounded;

FOR THESE REASONS:

DISMISSES the appeal;

Condemns Mr X … to the costs;

Considering article 700 of the code of civil procedure, rejects the respective requests of Mr X … and the company AGF IART;

Thus done and judged by the Court of Cassation, second civil chamber, and pronounced by the president in his public hearing of April seventeenth, two thousand and eight.