Expiry of the period for reiterating the sale
In terms of sale agreement (synallagmatic), unless otherwise stipulated, the expiry of the period fixed for the reiteration of the sale by notarial act gives rise to the right, for each of the parties :
-or to take action to enforce the sale,
-or to request the cancellation of the contract and compensation for damages.
The fact justifying the exercise of this action can only consist of knowledge :
-by the party holding the right,
the refusal of his co-contractor to perform his principal obligation to sign the deed of sale.
Accordingly, the judgment must be quashed where, in order to declare theaction for rescission of the promise to sell prescribed, holds that :
-from the day after the date set for signing the deed of sale,
-The SCI knew that the promise had not been repeated and that it could exercise its right of action.
In so ruling, on grounds which :
-This is not sufficient to establish that the promisor was aware of it on that date,
-the buyer's refusal to complete the sale,
the Court of Appeal therefore failed to provide a legal basis for its decision.
Court of Cassation, 3rd Civil Division, 1 October 2020, Appeal No. 19-16.561
What you need to know:
Just because there is a fixed date in the preliminary sales agreement does not necessarily mean that this date is the starting point for the limitation period in the context of the action for compulsory execution of the sale.
The Court of Cassation points out that in the case of a promise to sell, the expiry of the time limit set for the sale to be confirmed by deed only gives each party the right either to take action to enforce the sale or to apply for the sale to be rescinded and for compensation for the loss suffered.
Consequently, the fact justifying the exercise of this action can only consist in the knowledge by the party holding this right of the refusal by his co-contractor to perform his principal obligation to sign the deed of sale.
This knowledge finds its expression at the moment when the buyer who refuses expresses himself clearly, either by making it official through clear and unequivocal correspondence, or failing that on the day the deed is signed, by summoning the parties, buyer and seller, necessarily by a bailiff, and by drawing up a report of the difficulties linked either to the absence of one of the parties, or to the refusal of one of the parties to sign the reiterative deed.
Therefore, on a proper understanding, the Court of Appeal had no reason to declare the action time-barred on the grounds that :
-The limitation period would have started on 1 May 2010,
-the day after the date set for signing the deed of sale.
However, the Cour de cassation does not agree with this analysis.
In fact, the High Court considers that in so deciding, the Court of Appeal failed to characterise :
-SCI N.'s knowledge at that date,
-SCI DR's refusal to stop buying the property.
It must therefore be noted that the starting point for the limitation period clearly arises from the moment when the seller has full knowledge of the co-contractor's refusal to perform his principal obligation to sign the deed of sale.
This knowledge then entitles each of the parties :
-. to take action to enforce the sale; or
-or to request the cancellation of the contract and compensation for damages.
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