នីតិកិច្ចសន្យាពិសេស

source : http://en.wikipedia.org/wiki/Sale_contract

SALE CONTRACT

The sales contract is an agreement whereby one undertakes to deliver one thing and the other to pay. It can be made ​​by deed or private document .

Its characteristic features:

• the price
• the thing (or service)
• the transfer of property

The sale is an agreement on one thing, it organizes the transfer of ownership (different from a simple organization of the use): the thing out of the assets of someone to enter that of another.

The sale is a contract of conveyance, this is not one that is historically appeared first: it has been shown that when the money appeared and has then replaced the barter (trade).

The contract is the most common of all agreements. He has been a strong specialization: there are now many types of sales at each follow special diets (eg commercial sale is essentially reached by traders for trade purposes and is characterized by its system evidence, the competence of the Commercial Court or the validity of certain clauses), but the law of the sale beyond the plans derogatory .

The sources of law in the sale are numerous:

• Community Directives (Directive on unfair terms on defective products etc.)..
• Vienna Convention (1980, ratified by France in 1988). It applies to professionals who have their establishments in different countries. The Vienna Convention was ratified by states with very different legal systems.
• Principles UNIDROIT , at European level, which constitute a step towards a European code of obligations.
• National legal norms: Constitution , laws , regulations … The Civil Code is the main source of the French legal right to sell and special contracts in general, he devotes a hundred articles to the right of sale. The legislature has strengthened and increased the obligations of the seller.
• Case law , which remains a key source of sales law, which explains why many articles of the Civil Code on the sale have not changed since 1804.Some items are unchanged applied differently than xix ^th  century  : the basic principles of sales law (including the formation of the contract) remain unchanged but the organization of the system of obligations has changed, however.

The sale is seen as the very type of consensual contract and instantaneous. The consensual nature was already stated in Roman law , however, the main effect of the sale, transfer of ownership, was not immediately from the meeting of the minds: it had to be entered into another note, due to the dissociation between the contract and the transfer of ownership. This pattern remains unchanged under German law.

In France, the model of dissociation of the agreement of wills and the transfer of property has been abandoned since the old law  , the sales contract is instantaneous: sale and transfer of ownership takes place simultaneously.

Summary [ hide ] 1 Characters 1.1 Consensual 1.2 Indenture 1.3 Expensive 1.4 commutative 1.5 The character on a personal 2 Price 2.1 fixed or determinable 2.2 Real and serious 2.3 Lawful 2.4 Consideration of the lesion 3 Thing 3.1 Existing 3.2 alienable 3.3 Determined or determinable 4 Transfer of Ownership 4.1 Character solo consensu 4.2 Sale of the property of another 5 pre-sale contracts 5.1 Bargaining Agreements 5.2 Compact preferably 5.3 unilateral promise to sell 5.4 Promises synallagmatic sales 5.5 The framework contracts 6 Training 6.1 Principle of consensus 6.2 Terms of Sale 6.2.1 Conditional Sales 6.2.2 Sales subject to experimentation 6.2.3 Sales with right of withdrawal 6.2.4 Sales formal 6.3 Effects of the sale 6.3.1 Transfer of ownership and risk 6.3.2 Birth of the obligations on the seller and the buyer 7 obligation on the seller 7.1 Contractual Information 7.2 Obligation to issue 7.2.1 Provision of the thing 7.2.2 Issuance consistent 7.3 Obligation of guarantee 7.3.1 Warranty foreclosure 7.3.2 Guarantee of hidden defects 7.3.2.1 Exclusions legal 7.3.2.2 Exclusions conventional 7.3.2.3 Implementation 7.3.2.4 Warranty defects in the Vienna Convention 7.4 Obligation to provide security 7.4.1 Contractual obligation security 7.4.2 Liability for defective products 8 Obligations on the buyer 8.1 Obligation to pay the price 8.1.1 Amount of 8.1.2 Time of payment 8.1.3 Place of payment 8.1.4 Proof of payment 8.2 Obligation to retirement 9 Notes and references 10 See also 10.1 Related

Characters [ edit ]

Consensus [ edit ]

The consensual nature of a contract (the contract is concluded by the mere exchange of consent) is opposed to the reality (which in addition to the exchange of consent, the actual submission of the matter is necessary for the conclusion of the contract) or formal, solemn (where in addition to the exchange of consent, respect for formality is necessary for the contract).

According to the law of contracts, the sale is a consensual contract: it is concluded from the exchange of consent. This exchange of wills should be on the essential elements of the sales contract (the thing sold and the price), the lack of agreement on the incidents do not affect the contract, unless the parties have given these elements in nature subjectively essential accessories.

The sale is, however, a bell-contract, that is to say, rooted in time and tradition, the sale is a contract full of history and upheaval. Thus, for about fifty years ago, however, a decline of consensus and a formal return of the sale. The law requires compliance with certain formalities for the validity of some contracts:

• The sale of a business.
• Some sales concluded between a seller and a consumer, such as using business methods considered “aggressive.”
• Certain sales of intellectual property rights.

In case of default in the formality (eg, lack of mandatory), a protected person may request relative nullity (annulment protecting a particular interest).

The sale of property is not consensual, but a solemn contract: the requirement of signing a deed does not mean the solemn nature of the sale. It must indeed wonder on what basis this formality is expected: for example, if provided for purposes of evidence or enforceability of the contract is nevertheless consensual since it does not prevent its conclusion . Regarding the sale of property, formality intended against third parties, which in the absence of deed are not supposed to know the existence of the contract of sale of property and ownership change that accompanies and the signature and publication of the deed can give effect to the contract vis-à-vis third parties and does not affect its conclusion.

Indenture [ edit ]

The character of an indenture agreement (the contract is interdependent obligations at the expense of both parties) is opposed to unilateral (which one party undertakes vis-à-vis the other).

The unilateral contract requires a meeting of the minds, the one who committed must approve and accept the beneficiary (eg a gift), the unilateral legal act does not require agreement of wills, it is simply the that a person decides to create a right vis-à-vis another person, expressing his will unilaterally (eg, the will, the recognition of an illegitimate child). French law is unfavorable to the unilateral act, contrary to German law.

Expensive [ edit ]

There is no place in the sales contract for donative intent. The qualification of contract for pecuniary interest does not depend on well-balanced or not the price but its existence and its real and serious nature: it is not because the buyer has paid something inexpensive that the contract will be reclassified in gratuitous contract and thus donation.

It may be that the parties have deliberately concealed a deed of gift in the guise of a sale which stipulates a price, for example to prevent an intention to be known reward. This is not necessarily fraudulent and reprehensible. The Civil Code does not condemn a priori the technique called simulation. He distinguished between the parties and vis-à-vis third parties.Between the parties, the real contract expressed in the letter-cons and premium will apply. For others, it is conspicuous that the contract applies, however, some third parties may have an interest in what they objected the real contract, he will then make a declaratory action simulation in order to take advantage of the cons -letter, so in theory they have the choice of the contract that they will face.

Commutative [ edit ]

The sale is in principle a commutative contract. The commutative contract (contract obligations which are known and regarded as legally equivalent from its conclusion) is opposed to aleatory contract (where the existence or extent of the obligations is not known at its conclusion and will depend on a event).

The purchase contract is normally commutative. The essential obligation of the buyer is known from the contract, considered equivalent to the obligation to transfer ownership. However, the parties may arrange the sale in order to make an aleatory contract, the majority of the rules of the Civil Code concerning the contract of sale is simply supplement intention, not mandatory, then the interest is the fact that in an aleatory contract, you can never challenge the validity of a contract based on random injury: “injury hazard hunt.”

The character on a personal [ edit ]

The sale contract is not a personal basis. It seems that in some situations, the personality of the buyer may be important for the seller. Would be the case when it is very emotionally attached to the property and sells it does not sell to anyone. However, the positive law refutes the possibility to choose the vendor in the presence of this emotional bond, despite that the courts have shown traces of a personal basis in the sale of works of art. That said, the character on a personal contract of sale may well be determined in some cases. Thus, the study of the sales contract is important in determining this criterion.

Price [ edit ]

Article 1582 Civil Code, which defines the sale contract does not say that the notion of price recovers. It is considered the financial consideration payable by the purchaser, such consideration consists of all elements that benefit the seller and which correspond to his property to the value of the thing sold.

The price is usually made ​​in cash. There are situations where one might question the existence of such consideration in money for the sale: for example when a price is set by the mechanism of compensation.
For example, a debtor is 10,000 euros to his creditor but instead of paying him the money, he sells goods worth EUR 10,000, the creditor becomes purchaser and the price is paid by the mechanism of compensation, the contract is a sale as a money has been set at the origin.
Another example is 10,000 euros A to C. A sells B a property that is worth 10,000 euros. The mechanism “normal” is that B pays to A 10,000 euros and 10,000 euros A pays to C, but nothing prevents it to be provided in the sales contract that pays B money not in A ( his creditor) but directly to C (the creditor of A), means for extinguishing the debt of A.

The price is a distinctive feature of the sales contract.

He distinguishes the sale of the donation . The price is absent in the donation, which made ​​way for liberal, while the sale still has one.

He distinguishes the sale of the exchange .
The exchange, in contrast to the sale, does not provide for payment of any consideration in money but the transfer of ownership of property (this is barter). Assets transferred are in most cases considered to have a value but it may actually be a strong imbalance requiring additional money, in which case, the judge has to rule will refer to what is essential and accessory describe the swap or sale.
The legal arrangements for the exchange and sale are in any case very similar and the distinction has little effect on the applicable rules.

He distinguishes the sale of the contribution to a company .
When it is desired to become a partner or shareholder of a corporation, one must give him something: money (cash contribution), a movable or immovable property (intake kind) or work (contribution in industry). The distinction between sales and contribution in kind is tricky, as there are in both cases, transfer of ownership, but for the transfer of ownership in the contribution in kind, as in other contributions in society we do not receive compensation forming a monetary prize: one receives shares or shares. These have a monetary value but are not a financial consideration, a “price” within the meaning of section 1582 of the Civil Code, they give rights in society.
There are differences in diet between the sales contract and contribution in society, including guarantees for the sale that do not exist in the contribution to a company.

He distinguishes the sale of the lease food .
The lease is a contract food created by the practice, not governed by legal rules but the plan was “invented” piecemeal. This is an agreement under which a person undertakes to take care of another person in the housing and feeding for value (whether by payment of a sum of money or by the transfer of ownership of property). Unlike the sale, there is no price as the consideration for the transfer of ownership is the service rendered.

Finally, it distinguishes the sale of the payment in kind .
Giving in payment is the legal mechanism by which the creditor agrees to be paid by something other than what was originally planned. It modifies an obligation: how to deal with its debt.There is a transformation of the initial commitment. The creditor may require to be paid as scheduled in the contract, and the debtor must perform his obligation as planned. For there dation requires that the creditor agrees to be paid otherwise, “abnormally”. The giving off the debt. Under certain assumptions, sale and payment in kind are difficult to distinguish. When the creditor agrees that instead of paying as agreed, the debtor transfers ownership of property, then the two mechanisms are similar, it is under the modification of the initial commitment that it is known whether or not the agreement is a dation. Sometimes the judges are wrong and qualify a sale of payment in kind (eg buying a car, the dealer expects to resume our old car, which allows compensation in car prices. This was falsely described as sale with payment in kind: it is a sale of new vehicle, which ownership is transferred in exchange for money, and a recovery can not be considered a payment in kind for the option is provided at the conclusion of the contract and therefore does not change the initial commitment).

The price is necessary in the sale. There can be no contract of sale if no price is fixed. Price is an essential part of this contract if it is a qualifying standard and price is subject to an obligation (subject to the principal obligation of the buyer). For these reasons, the price in the sale must comply with the requirements: it must be determined, and substantial, lawful, but exceptions-he does not have to be fair.

Fixed or determinable [ edit ]

The price in the sale must be fixed or determinable, it is a requirement for validity and in the absence of such determination, the sale is a nullity.

We must distinguish the requirement for a price in the sale and jurisprudence “chaotic” framework contracts. The evolution of case law under the contracts do not affect the legal requirement to determine the price (Article 1591 Civil Code) in the sale.

The contracts are part of complex contracts organizing in time the legal relationship between a supplier and a retailer (dealer). There are obligations on the part of each other and relationships are organized supply (the retailer agrees to purchase from the supplier). Retailers are finding the mechanism of the framework agreement cumbersome and the benefits sought a way out without paying compensation, so other than termination, for a time they found the solution in the indeterminacy of the price, allowing them to request the cancellation of the framework agreement on the grounds that it met the legal requirements of Article 1591 Civil Code, the judges have seen in the context of unilateral promises contracts or indentures of sale, and said that section 1591 (special right of sale) was not applicable. But they still declared the nullity of contracts framework on the basis of common law, Article 1129 of the Civil Code, the determination of the species and the proportion of the thing (and the price, thought the judges before 1995). When the price is determined, no problem arises because it means that when the contract, the consideration is given, the price is final. However, a problem arises when sales are spread over time (they are called “sequential performance”), because the price can not be fixed permanently: it will be fixed later, such as the date the property will be delivered, or the case law, the elements needed to quantify the amount of the price shall be appointed upon the conclusion of the contract. It has been held consistently that these elements to quantify the amount of the price to be accurate and objective.

• Specific: no additional agreement shall be required, the selected elements from the contract must be sufficient for setting the price can be done, on pain of nullity of the contract.
• Objective: it should not be any room for arbitrariness in fixing the price, because we must avoid that the buyer is thank you to the seller. The case law was very strict in applying the criterion of objectivity in the price, in order to protect the seller, and canceled many contracts framework on this basis. To meet this requirement of objectivity of the price contracts under clause provided for a determination of price by one third, which must remain objective and therefore not bound in any manner to any party or of committing error-rough, in time, according to a legal mechanism itself under section 1592 of the Civil Code. Other techniques for fixing the price objective are possible, such as the use of a price escalation clause or reference to the profitability of the thing subject of the contract of sale. The clauses have been much attention are those referring to the “market price” (for example, mentioned in the contract that the price will be the rate on the market at the time of delivery of the goods) is a specific element and objective, unless the seller has a monopoly position or a very dominant market-in this case, the judges consider that the price is subjective, which leads to the invalidity of the contract. The Supreme Court has occasionally enjoyed the criterion of objectivity in a “regrettable”, canceling sales simply because of the unilateral fixing of prices by the seller, while the price was not excessive: one has the objective method or subjective.

The judge can not decide if itself determine the price.

And substantial [ edit ]

The price must be real (not fictitious). This requirement of the reality of prices is related to distrust of appearance.
There are two possibilities: either the actual price is higher than the apparent price, or it is lower. In both cases, one has to do with the mechanism of the simulation (the contract has an ostensible price other than the letter-cons). These two hypotheses are not distinguished by Article 1321 of the Civil Code of the simulation, but by section 1840 of the Tax Code, which prohibits the assumption of “bribes,” the actual price can not exceed the apparent price as it would pay less in tax administration. This section of CGI cancel and void against the letter, where it provides a real price lower than the apparent price. In the other case, the simulation is legal but is sometimes the issue of qualification of the donation contract, and when those interested in the transaction, such as creditors of the seller and the buyer (involved in their heritage) , have an interest, they may be just the look or ask that they be against the opposite-letter denouncing the simulation.

The prize must be seriously if it was not, the sale would be absolutely null. It opposes any derisory price in the sale: the “vileness” the price is controlled. A ridiculous price just is not a balance but a price so low in fact it is as if there were no price. Judges analyze the entire contract, for example they take into account the fact that the buyer may have to take charge-off purchase at nominal cost, a number of expenses that will give the overall operation a serious cost. This control of the vileness of the prize is potentially interesting for all sales not subject to rescission for lesion.

Lawful [ edit ]

In our free enterprise system, the principle is the freedom of prices. We trusted the play of free competition and the state currently does not specify or very rarely the product prices.However, there are exceptions in which the regulatory authority sets prices: drugs, gas, electricity etc.. but such cases are fewer in number since 1986 and the market opens to competition. Price negotiating is up to business partners, which does not mean that there is no legal requirement for lawful price: many national and community rules are imposed on businesses and major occupational groups so that is preserved the play of free competition. For example, the agreements (where competitors agree to fix prices of their products) or abuse of dominant position are prohibited and punished, as these practices-rare-are designed to distort free competition. Rules impose obligations of transparency on prices, again to ensure free competition: thus, the rates, premiums, discounts and so on. a professional must be notified as soon as another professional so requests, it avoids discriminatory practices favoring one retailer over another. Also, are prohibited, both at national and community-price maintenance practices (mechanism by which a manufacturer imposes a sales price to the retailer): a “recommended maximum price” for example, is legal but not a fixed price . There is also a consumer protection vis-à-vis the price: the Consumer Code requires disclosure and transparency on the sale price in the contracts between professionals and consumers. Are required in this regard the pricing and the requirement of transparency in advertising.

Consideration of the lesion [ edit ]

In certain types of contracts, the judge has the power to review prices which seem disproportionate, this power of review is limited to certain assumptions and does not affect the freedom of contract.

In sales, the powers of revision of prices by the court are very limited. This power is, however, in rare cases, to meet the concern of real contractual balance, which refers to the basis of the contract. But what is the basis of the contract? Considering that it is free will, then we must conclude that the parties are able to determine the price, it is necessarily correct and that the judge does not have to control the balance: it is legally balanced and whatever he is economically. This is the position of the classical doctrine, other interpretations have been issued during the xx ^th  century . Thus, some have thought to find the basis for the contractual mechanism in the theory contained in the “good and fair” in Jean-Luc Aubert . Another is simply the doctrine in the text of the law, “agreements legally formed take the place of law to those who made ​​them” (Article 1134 Civil Code): the power of the parties to determine their agreement is not autonomous but representative, it is the legislature that gives co-contracting parties the freedom that is framed (for example, in 1804 agreements contrary to morality are forbidden). The autonomy is subject to the law. At present, the positive law from an a priori that the price does not have to be economically fair: just make it legally just for the convention to be valid when the parties agreed freely in the contract, it applies and the price must be considered fair. Exceptionally, there are mechanisms to control the right price. The principle is that the price does not have to be economically just as freedom of contract, doubts about the judge’s ability to fix prices, and the legal ban on the parties dissatisfied to question the contract they have entered because the price is unfair. Anyway, any economic relationship between professionals and lay means a desire for speculation, finding the right case, which can not be sanctioned in a liberal economic system.

In some contracts, including contracts of sale, the balance between benefits, found in the formation of the contract is sanctioned. To the legal control of this imbalance is the initial rescission for lesion. Article 1118 Civil Code envisages punishment of the initial imbalance; rescission for lesion is seen in the Civil Code strict: few cases are taken into account, unlike other legal systems. The judge does not control the price when the law allows.

The lesion is considered in two types of contracts:

• any contract between individuals. These are contracts with persons with disabilities
• certain contracts between any persons.

These contracts and especially when it comes to sales-rescinded for injury, are rare.

Article 1674 Civil Code envisages the inclusion of the lesion in the sale of property. Other articles take into account the lesion in the sale of agricultural products and the sale of copyright.Jurisprudence in turn controlled by other contracts such as assignment of ministerial office, but it is questionable in such cases if it has not exceeded its powers. In the case of the sale of property, all sales of property are not covered: not affected sales of building random (“hazard hunt injury”) and we can not criticize the price of a sale by auction. In general, the scope of the rescission for lesion is very limited because section 1674 poses stringent conditions on request. The financial imbalance is anticipated that when unfavorable to the seller (the buyer is not protected). It must be at least 7 / 12 ^th of the building, which is a lot. The legislature was concerned that the seller is driven by financial need and be forced to sell the core of its assets to a very low price. The action for rescission for lesion must be brought within a deadline of two years from the date of closing of the sale (Section 1676 of the Civil Code) after this period, the action is inadmissible. The procedure (in two) is complex and time: first, the seller must establish the probable, likely, of the lesion, a first decision will be made ​​to declare the action admissible or not, whether the action is admissible, three experts will be appointed, and once the lesion proved, the rescission will be delivered before lead to the annihilation of the contract. However, the buyer has a choice: either he suffered injury to the rescission (retroactively then there is annihilation of the sales contract), or he bought the lesion and thus saves the contract by giving an additional 90 to achieve % of the actual value of the building (it’s always a good deal since the law does not require the buyer to pay the full value of the property)

What is the basis for rescission of the injury?

One school has a subjective analysis of the lesion and considers that the existence of a financial imbalance is only the manifestation of a defect of consent, which should be presumed from this imbalance, but the buyer has to provide evidence of violence, error or fraud. Another school sees the sanction of the injury, the penalty for a foul, dishonest behavior. These authors start from the idea that if a financial imbalance is because one of the two contractors was not fair and it is responsible for the situation. Yet there can be damage without dishonesty, and if all injuries were due to dishonest behavior, then they should be sanctioned in all contracts.

The subjective analysis is called into question and we will prefer a more objective view of the contract: the lesion is sanctioned in the general interest of the market economy, as the legislature considers imbalances are socially unacceptable and c That is why the As of social evolution, he adds contracts may rescission for lesion.

Thing [ edit ]

As there can be no sale price, there can be no sale without transfer of ownership of a thing. This feature distinguishes the sale of contracts neighbors who are not considered as sales or because they are not about things, either because they do not operate to transfer ownership.

The thing sold, in the legal sense, results in a wide variety of items for sale: it can be a real or personal property, tangible or intangible, tangible or intangible property etc.. For example, the sale of a business often includes a multitude of things and uses the law of the sale as well as specifics.

Can we sell a debt? A debt? A contract?

Yes, with respect to the claim: it gives the manner provided by section 1689 et seq of the Civil Code. It is not considered a legal relationship interpersonal, it is assumed the character of “good” in “thing” to “value” that can be transferred. It is an objective view of the claim.

Not in terms of debt and the contract: there is a reluctance to admit this possibility in debt because of his “personal” (the person of the debtor and the creditor is taken into account), this reluctance reflects similarly on the contract.

The thing is a distinctive feature of the sales contract.

It distinguishes the sale of the works contract . The criterion to distinguish the sale of a business contract is the standard or specific nature of the work, the thing to do. A problem arises, the services related to the sale. In many contracts of sale, the seller agrees, in addition to the transfer of ownership of the thing to perform services (such as home delivery or customer service), these benefits do not call into cause the qualification of the sales contract: they are merely incidental to the thing sold, useful or even essential to the use of this thing. However, the existence of such additional services means special rules that provide for both the Consumer Code that the Commercial Code, the general idea of these rules is to protect consumers and to prohibit such services are offered necessarily related to the sale so that the consumer has the choice to accept these additional services and reject then paying less.

This being the subject of a principal obligation of the contract, the requirements are put to him that the sales contract to be valid. The thing must exist, be capable of alienation; be determined or determinable. Violations of these requirements are sanctioned by the nullity of the contract.

Existing [ edit ]

The characteristic of the existence of the thing sold raises two questions.

What happens if the thing is gone before the conclusion of the contract?

The disappearance of the thing before the conclusion of the sales contract renders the contract null and void (although this is less protection for the buyer that a relative nullity).

Under Article 1601 of the Civil Code, the total destruction of the thing must be distinguished from its partial destruction: in case of total destruction of the thing, the sale is still absolutely null; if partial destruction, the buyer a choice of remedies for rescission of the sale or keep for sale with a price reduction commensurate with the extent of destruction.

The disappearance of the thing before the closing of the sale has different consequences of the assumption of his disappearance after the conclusion of the sale, assuming that no longer relates to the formation of the contract but the burden of risk. The risk of loss of the thing (eg by accident) weigh on the owner: “res perit domino.”

Can you sell something that does not exist (something future)?

The law of contracts (Article 1130 Civil Code) is a principle of validity of agreements relating to future events (eg a building to be constructed or work to write). For sales, we must distinguish several hypotheses for the legal is not always the same: in most cases, the sale agreement of future things is a commutative contract where the transfer of ownership will be the day that the thing exists, but in exceptional cases, the sale of future things is an aleatory contract where the buyer takes a risk (eg, sale spree, where the parties have integrated hazard of the result and the buyer decides on its voluntarily pay the price of the thing that will be transferred, taking the risk that the crackdown brings little or no returns nothing). There are some restrictions on the sale of future things, such as intellectual property or estate, but the principle is that contracts for the sale of future things are valid, the contract of sale will be concluded at the meeting of the minds party will be perfect but that from the existence of the thing where the buyer becomes the owner.

Alienable [ edit ]

Anything can be an agreement if it is on the market (Article 1128 Civil Code). The right of sale is aligned with the general contract law, as Article 1598 of the Civil Code establishes the principle that everything in trade can be a sale, unless the disposition thereof is prohibited.

What are the things which the law or the conventions prohibit the alienation?

There are some assumptions inalienable legal, who come primarily to protect the public interest: the law prohibits such just and void any sale of, the human body, drugs, future estates, civil or political rights such that parental authority or the right to vote. The question of the disposal of civil customer caused problems in jurisprudence. Although this type of contract is very common (eg a doctor retires and is paid over to his successor), it has long been canceled because the customer professionals, consisting of free persons (including Professional does not own but simply bound by their faith), could be a sale. Professionals in a somewhat hypocritical escaped the risk of invalidity of the contract describing the purpose of simple presentation of the successor customer fee. The Court of Cassation has solved this problem in a decision Civ. a ^re  ; November 7, 2000 saying that “the transfer of customers (medical) on the occasion of the constitution or transfer of a liberal exercise of profession is not illegal, provided that the choice of the patient is saved. “ This is a departure from precedent since the Supreme Court accepts the idea of transferability of customers, but only if conditions are met: the customer can not be sold on the occasion of the general assignment of the fund, and not in isolation, freedom of choice of the customer must be preserved. This case was confirmed by a ruling Civ. a ^re  ; June 30, 2004 saying that “the transferability of customers is not unlawful under the condition that is safeguarded freedom of choice of the patient.” The Supreme Court no longer refers to the condition of the time of transfer.

The inalienability of the thing may be of conventional origin. This is assuming ownership of a property is transferred to someone, but the contract provides that the person has no right to sell this thing, the property right transferred is limited by a inalienability clause. This assumption creates a conflict between the right “absolute” property and the parties’ contract. The case law has taken over the old principles laid down by the Civil Code, Article 900-1, which regulates the terms of inalienability in donations and bequests (posthumous donations), and recognized the validity of clauses in the sale of inalienability under two cumulative conditions:

• inalienability clause must be temporary: this condition is considered with some flexibility to the extent that the inalienability of a thing for the duration of life was found lawful.
• it must have a justification (serious): judges check that the clause of inalienability is not related to the whim of the donor but to a financial or moral.

Any clause of inalienability temporary and serious in a legacy donation prohibits the disposal (eg sale) of the thing sold. However, even if they are valid, these clauses may be exercised by the judge (who will give permission to dispose of the property), or because the justification clause has disappeared, either because there is a greater interest in this justification.

These Terms of inalienability are they still valid today in the sales contract?

Opinions are divided. The rulings have allowed inalienability clauses in the sale are old (early xx ^th  century and rare. Authors such as Stark Boris or Hervé Malinge rely on it to say, however, a seller may validly stipulate that prohibits the buyer to resell the property. Other authors such as’ Alain Bénabent and William Retiers consider that the clauses in the sale of inalienability are void because they can not reason with amalgam such as contracts in which the donation chair donative intent.

A sale, strictly speaking, can not actually contain any clause of this contract as inalienable property transfers completely: it is not possible to limit the powers of the new owner.

Fixed or determinable [ edit ]

Both the law of contracts that the special duty of the sale say the requirement of determination or determinacy of the thing: Article 1129 of the Civil Code requires that the thing which the contract is determined or determinable, and the special right of requires for its sale agreement on the matter, determined or determinable, and the price for the sales contract is valid

Reference should be made to contract law to determine the implications of the determination of the thing. When it comes to determining the matter in contract law, a distinction is made between things and bodies of some kind. When something is one thing to type (example: one kilogram of potatoes not individualized), she will have to be determined.

There are two techniques for determining the difference in the sale:

• Bulk Sales (Article 1586 Civil Code): This technique is used to determine the matter in reference to the place where it is located or by the establishment of a description. The thing is determined from the contract of sale and transfer of ownership takes place immediately as the individualization of the thing is concurrent with the sale.
• The sale to the weight, measure or account (Article 1585 Civil Code): in this case, the individualization of the thing does not happen at the time of the contract, the transfer of ownership of the thing is pushed when uniqueness. This does not prevent the contract being concluded at the meeting of the minds (this is only the effect of the contract is rejected), which has a practical importance: the seller upon the exchange of consents obligations that must be performed, he agrees to individualize the thing or face sanctions for breach of contract if he does not.

Transfer of ownership [ edit ]

The main effect of the sale is to make the transfer of ownership of the thing. The specificity of the sale in France is the automatic nature of this conveyance. Any contract of sale operates this transfer of real rights is the right of ownership, the assets of the seller to the buyer. Accessories that are also transferred real right (eg when selling a car, there is a transfer of ownership of the car, but also transfer of accessory elements such as car registration).

The transfer of ownership is a distinctive feature of the sales contract.

He distinguishes the sale of the lease . The distinction between the sale and lease based on the fact that the lease does not transfer the real right thing, the tenant has no real right thing because it is neither the owner nor the usufructuary. He has a right to claim, so a personal bond that binds the lessor. It can only require its landlord possession of the property because it has no direct control over the thing.

He distinguishes the sale of the loan agreement . Loan for use does not imply transfer of ownership of the thing, the other type of loan, the consumer-operated transfer of ownership. The loan is defined as the provision of something to the borrower so that it uses anything but the return to the lender at the end of the contract, so he always essentially an obligation of restitution, which distinguishes the contract of sale of the loan. Loan for use is a provision of the thing, the lender retains ownership of the thing and have the borrower that the holder of that thing he has no real right over it n has the right to use it-. The loan is a consumer provision, but the borrower becomes the owner of the thing borrowed, but he will return it. The transfer of ownership in the consumer loan is linked to the lent thing: while loans for use on non-expendable things (which in principle are not destroyed by their use-for example a book or a car), the ready for consumption consumable things (which in principle are destroyed by their use-for example, money or cigarettes). As the power to destroy the thing is a prerogative of the owner, the property right is necessarily transferred to the consumer loan. As in the ready to use, the consumer loan has a duty to make restitution, but not of it, as it has in principle been destroyed, but its equivalent.

Character solo consensu [ edit ]

Article 1583 Civil Code establishes the principle of automatic transfer of ownership in the sale. It occurs when the contract without any further formality being required, and no matter whether the buyer is in possession of the thing: the transfer of ownership is separate from the transfer of the thing.

The character solo consensu the transfer of ownership in the sale, asked by the Civil Code, can it be changed?

Yes. The model of section 1583 of the Civil Code is a model proposed to the parties and not imposed. The transfer of ownership of the exchange of consent is a default rule of will, which is not substantial sales contract and applies in the case of silence of the parties, but the seller and the buyer can arrange another scheme. For example, they may arrange for the transfer of ownership will take place at a date or when an event such as a ready-occur. In these cases, the transfer of ownership is assigned a modality that can be a temporal term (requirement is postponed to some future event such as a date) or condition (the requirement is postponed to a future event uncertainty such as a loan). Between the contract and the term, the obligation exists but need not be executed: the execution can be claimed only at maturity, the day the event will be realized. When the contract is assigned a condition, the requirement is not yet born but the day when the uncertain event will happen-if it occurs, will exist and then retroactively, as if it had always existed.

The character solo consensu the transfer of ownership in the sale is not inconsistent with the notion of an obligation to do so, not to do, to give?

No. The debtor (seller) is not involved in the implementation of this obligation (property transfer) but that does not challenge. The notion of obligation is based on the fact that the debtor performs what he has committed, this is a legal effect. Some authors say however that this analysis that the transfer of ownership results from a simple legal effect without the notion of obligation is superficial. The transfer of ownership in the sale is in their subject of an obligation, that we see every time we dissociated the time of the contract and of the obligation.

The character solo consensu the transfer of ownership in the sale he poses problems for third parties to the contract?

There are no particular formalities to be accomplished, for acts showing additional to those outside the contract on transfer of ownership. This change of ownership may pass unnoticed by third parties, for which there is a total lack of information, only the buyer and seller are informed. Yet others may be interested, primarily creditors of the parties (the sale changes the constitution of their pledge).

Enforceability of the rules are different if at all moveable or immoveable.

When the thing sold is personal property, section 2279 of the Civil Code provides that it is enough to be the owner to prove his title to it and this takes possession for the third property of this furniture. When there is dispute between two purchasers of personal property, so it’s the one who has been the first possession that may oppose his ownership to third parties: this is not the date of concluding the contract of sale will solve the conflict between the two buyers but that from which it owns the thing. If there are subsequent purchasers and contract dispute between the property of the thing, the agreement is valid with the seller (for reasons of legal certainty), but it can turn against him. The dispute resolution shall apply only if in good faith: if the second purchaser was aware that the first contract of sale had been spent on the thing, then it could no longer argue his good faith.

When the thing sold is property, French law has organized an advertising sales to help resolve conflicts. For the sale and transfer of property to be enforceable against third parties, you must follow these rules of agency, if you sell a property without complying with these rules, the sale will be valid between the seller and the buyer but the third party are not supposed to know (and this matter by the possession or closing of the sale), so that they can buy it legitimately. For the sale to be enforceable, it must publish the deed to the mortgage and is the only reason you have to sign a deed: in case of dispute, we can determine who published the first sale to the mortgage.

Sale of the property of another [ edit ]

You can not transfer more rights than we are to a. It is therefore common sense that one can not transfer ownership of a property if it is not self-owner, “the sale of the property of another is zero. It can lead to damages “(Article 1599 Civil Code).

When there selling the property of another?

When someone sells a property that does not belong to someone who has or has not knowledge of the illegality of the sale. It is in the relationship between the two contracting parties that the sanction of invalidity is sought; relationships with third parties is an issue that is resolved with the rules of perfection.

The invalidity under section 1599 is it absolute or relative?

It is settled case, it is a relative nullity. Classical authors had considered an absolute nullity as a sanction for the sale of the property of another, for the transfer of ownership is a fundamental part of the sales contract. But the distinguishing criteria have changed: it no longer refers to the essential and secondary as the 19 ^th century or early 20 ^th century, when the nullity was pronounced when the condition was critical. It refers to the interest that the rule is to protect, if the rule infringed is to protect the public interest, then pronounced the nullity is absolute, if the violated rule is to protect special interest (eg the victim’s a fraud or violence dune, whose consent was not free and informed), then pronounced the nullity is relative and only the person that wanted to protect the law may bring an action in nullity. The prohibition to sell the property of another protects the interest of the purchaser, it is the only one to raise the invalidity, either by action (he took the court) or by way of exception (it is involved in a lawsuit), for example by raising an exception for self-defense in an action where the seller asks him to pay. The seller of the property of another can not act void the contract because he is not that the law protects. The real property owner can not do either of nullity of the contract when the property was sold by someone else: it must be an action for recovery of his property rights when it wants to recover his property and this action shall be five years from the contract of sale for as it is a relative nullity, it may waive the request and confirm the contract.

In addition to this procedure which the buyer may demand the nullity of the sale of the property of another and the owner act claim its ownership, there are specific instances of sale of the property of another engenders not invalidate the contract:

• the sale of an undivided property

Where property is jointly owned, it means that many people have a right to it: they hold a share in the property, so it’s a different situation from the condominium where people sharing the property. When you are one of the owners as we can give our share as a heritage item, but if an undivided one-decide to sell the entire property to a third party, it exceeds its authority because it sells something that does not belong entirely: to sell regularly undivided property, or the joint owners must obtain the agreement of all owners. The Civil Code and case law provide a different response by the nullity of the sale: the sale of illegal undivided property is not zero but only ineffective against other co-owners, who may act as if the sales contract existed -no. The ownership is a temporary situation. At the end of joint ownership, a division is made: there is a breakdown of the lots between the ownership of the property owners. Or the property sold is recovered by the seller and the sale is unenforceable until validated; or the property sold is not the lot of the seller and there is a sale of property of another. There is a distinction between the period of joint ownership, where the sale is unenforceable against irregular-owners-and that of its distribution, where the sale is regular or irregular is a sale of the property of another-.

• the theory of appearance

When the seller is not the beneficial owner of the property it sells, but he is the nominee and therefore believed that the purchaser legitimately be the owner of the seller, this appearance saved the sales contract. There are a sale of the property of another, but the law protects the bona fide purchaser who has been deceived, and it requires, however, he committed a common mistake, when everyone believed in appearance (quality ownership of the seller) and not just the buyer. Vice will not affect the sale, which will be valid.

Pre-sale contracts [ edit ]

Under the principle of consensus on the sale, contract formation can be instantaneous. Just an offer event-specific and firm-will meet acceptance without reservation or ambiguity. Many sale agreements require, however, in practice the discussions or the issuance of an offer that meets acceptance. This period of talks, negotiations, follows a principle of freedom: when we talk, we negotiate, we are not obliged to enter into a contract or reach an agreement. The parties may terminate the negotiations if they so wish. The only limit to freedom of contract talks before the abuse is the fault. The breakdown of negotiations is not a fault: it allows to obtain damages must prove that failure is accompanied by wrongful conduct. The proof of fault of the partner in negotiations provides for damages on the basis of Article 1382 of the Civil Code, so the scope of the tort, because no contract has been concluded,. Negotiations are held in a pre-contract period, using the duty of good faith, punishable under Article 1382 and tort law. During this period of negotiation, the parties try to agree on specific points of the potential contract, which may be partial agreements between partners in the talks. Often when sales contracts are important financially complex agreements, “mark out” the period of legal negotiation of agreements, contracts which are preparatory to the sale.

Preparatory contracts (or pre-contracts) are contracts whose purpose or possible future conclusion of another contract. The second contract is called the final contract (or final contract), which gives the impression a contrario that contracts are not pre final contracts as they are. In the pre-sale contracts, the contract of sale is the final contract, the parties will conclude that perhaps the end of negotiations.

While the “pre-contract” is the area of ​​freedom for the parties (other than abuse), the period of “pre-contract” leads to the conclusion of contracts preparatory. Some of these contracts do not predict preparatory to the conclusion of the sale, while others are agreements in which the sale is already negotiated and are a promise of sale indenture.

Bargaining agreements [ edit ]

Bargaining agreements are far removed from the sale since the object of these agreements is not the sale itself, but the organization of the negotiations. No one agrees to close the sale at this level: there are only obligations regarding the negotiation process. Thus, the tentative agreements are agreements in negotiation of the contractual obligations they take the responsibility of the parties. The heart of an agreement in principle is to require the parties to negotiate in good faith, but nothing prevents them from adding clauses, so additional obligations such as confidentiality obligations or exclusivity. Under these agreements, principles, these are benefits that are envisaged: to do or not do (for example, assign documents to a partner not to disclose information etc.)..

Interest bargaining agreements is to increase and clarify the obligations of the partners and their dependents to genuine contractual obligations whose execution is not sanctioned by the contractual mechanism. The resolution is unnecessary since we can not return to the initial situation, enforcement is impossible since we can not force someone to negotiate in good faith. The sanction for non-compliance of a bargaining agreement can not be that engagement of contractual liability, which results in the payment of damages.

In tort liability as contractual in principle there is full compensation for the damage, except that the contractual liability, compensation extends only to foreseeable damage to enter the field contract.

What are the benefits to contract preparation, while the amount of damages will certainly be lower than in the context of tort?

This interest is in the greatest simplicity of proving a breach of contract tort of a breakdown in negotiations. Just compare what has been promised with what has been made or received, it is a simple observation. In addition, a contract can fix in advance the amount of damages, the parties often insert in their contract negotiating a penalty clause to deter their partner to go elsewhere and receive adequate compensation in case of breakdown in negotiations. We can not force one of the contracting parties to conclude the final contract.

Compact preference [ edit ]

The pact is the preferred contractual mechanism by which one party undertakes to the other to close the sale in preference to any other person. The principle is the same as the right of first refusal, except that it is created by law, which favors a person or body under certain conditions (for example, the tenant of a property enjoys a right of first refusal when the owner wants to sell the property, the owner must first offer the sale to the tenant. Another example is when the sale of land, the SAFER has priority to buy because the law gives a right of first refusal. The right of first refusal, by law, takes effect much more restrictive than the pact preferably from conventional: if a seller sells to a third party without respecting the priority (right of first refusal), the beneficiary law may be substituted in the sales contract, the purchaser being ousted, which gives the right security far greater than the pact preferably the violation of which exposes that payment of damages ( the impossibility of replacing the recipient has been criticized by some authors who think that the Court of Cassation applied Article 1142 of the Civil Code of the obligation to do so too obtuse). However, in one case, the beneficiary preferably a pact may request annulment of the contract of sale with a third party and will be substituted for the third party purchaser: this is the case where the beneficiary of the covenant can prove that the third party purchaser was aware of the existence of pact preference and intention of the beneficiary to acquire the property (the proof of bad faith third party purchaser is difficult to report because the advertising pact preferably not sufficient in itself to provide such evidence).

Unilateral promise to sell [ edit ]

The unilateral promise of sale (PUV) is not provided by the Civil Code: its legal system is judge-made law. The only unilateral promise of sale subject to a specific legal regulations are said reservation contracts in the sale of buildings to be built (construction law).

The unilateral promise of sale is defined as a contract by which the promisor undertakes to the beneficiary to sell something fixed or determinable at a price fixed or determinable. So in principle a unilateral contract where there is an obligation to sell at the expense of promising, the beneficiary of the promise does not undertake to buy the thing, but has an option: either decides to buy (it is said that exercising the option), or he refuses to sell (they say he does not exercise the option).

There is the inverse of the unilateral promise of sale: the unilateral promise to buy, where a person agrees to buy the property, and the other person to receive an option (it is exercising the option by deciding to sell his property or he did not rise by refusing to sell)

What is the legal nature of the unilateral promise to sell?

The unilateral promise of sale is a real contract: there is a voluntary agreement between the promisor and the beneficiary. Thus, it distinguishes the unilateral promise to sell the offer since it is not a contractual mechanism but a unilateral expression of will. The contract is a unilateral promise of sale is often a unilateral contract, but there are many cases in which the unilateral promise of sale contains mutual obligations and is then included in an indenture. For example, if the contract unilateral promise to sell a specific clause after which the beneficiary agrees to pay a sum of money if he would not lift option (this clause called “clause capital allowance “), there is indeed a unilateral promise to sell, but it is included in an indenture, which is an indenture of unilateral promise to sell-. A bilateral contract must be written in two originals.

What are the conditions of validity of a contract for unilateral promise to sell?

In a unilateral promise of sale, the sale is not completed yet and it will be possible on the day the beneficiary will remove the option. There are promising from the consent to sell, conditions of validity will be required.

When one undertakes to sell the thing sold shall be determined or determinable, and the price must be fixed or determinable. Therefore it is sufficient that the person says yes (exercising the option) for the contract is concluded.

The promisor, at the conclusion of the unilateral promise of sale, must have the ability to dispose of the property because it has committed to sell it. The recipient must have, when he bought-legal capacity.

The indemnity clause in a capital unilateral promise of sale is valid?

In the 1950s, the practice was that the title of this clause “clause of withdrawal.” Case law then rescinded the clause as a forfeit clause can be specified: it is zero due to its lack of cause. The forfeit is to not perform the obligation that was taken out, the option not to do what is promised may be accompanied by a sum of money. The amount paid for the immobilization of a property is really a forfeit clause? No, this is not a penalty since by hypothesis, we must commit to retract, or simply the sum accompanies the failure to exercise the option: when the buyer does not buy (and that pay therefore the sum), it is not that he refuses to perform an obligation, because it does not-. He has the right not to buy, but not the obligation to buy, that’s why it’s not a penalty (the trial court held that position).

It took a ruling of 23 June 1958 that the Supreme Court concluded definitively the validity of the indemnity clause of immobilization. In its reasoning, the Court held that this clause is not a penalty but his real skill is “capital allowance”. The amount owed by the RECIPIENT has a cause: it is the capital of the property by the promisor in the time of the promise, which he can sell the property to someone else.

Currently, the foundation (immobilisation of the object) may have changed. The Civil Code provides that the compensation effect of immobilization is the price of the option enjoyed by the beneficiary of the promise. The beneficiary has a right not to purchase or buy, it is a right that is paid. This option is expensive, the price of the compensation is called capital. This new foundation has implications for the question of the possible revision of the amount. From the moment the law says that the clause is valid, the recipient can not apply for the cancellation or reduction of the amount the judge.

One can not invoke Section 1152 paragraph 2 of the Civil Code to ask the judge to review a capital allowance excessive. This article, which provides for the moderating power of the judge for a penalty clause, establishes the principle of the inviolability of clauses providing for damages in general, only the clauses providing for damages for breach of an obligation may be revised. The indemnity clause is not a capital penalty clause because it does not punish the breach of an obligation, but accompany the exercise of a right, and therefore can not invoke Section 1152 paragraph 2 of the Civil Code to request its revision: the clause does not fall within the scope of this article.

This assertion is constant in the jurisprudence. However, case law has permitted the revision of a capital allowance on another basis: Article 1134 of the Civil Code on the execution in good faith agreements. This is the position of the Court of Cassation in Civ 3 off ^e  ; 1984, Le Trung Tam. She explains in the first part-that the capital allowance may be revised on the basis of Article 1152 of the Civil Code, and-in the second part, eventually, the amount of compensation may be revised on the basis of Article 1134 paragraph 1 ^st of the Civil Code. This decision is a real thunderbolt. In the case of sale of goodwill , a capital allowance had been made ​​for a period of one month, then the beneficiary had a month to give his answer-buy or not buy, but the ‘gave after eight days. The immobilisation of the object lasted only eight days, the beneficiary requested the court to consider the capital of the property, saying that the amount of compensation should be proportional to the downtime. The Supreme Court agreed to consider the actual time since Article 1134 of the Civil Code says that conventions legally formed take the place of law to those who made ​​them. Judges are obliged to moderate the indemnity clause capital over time as it appears from the actual contract that the parties intended to link the amount of actual time the asset.

Two years later, the Supreme Court on the same subject makes the decision Civ. 3 ^e  , 1986, Le Trung Tam. She returns to what she said in 1984: she refuses to take into account the real time of the asset (shorter than the time allotted) because the contract provides that the compensation is payable as of right. Most commentators say that this is a departure from precedent due to criticism of the ruling in 1984. This ruling is legally the most convincing. Upon the conclusion of the promise, consent to the sale was given, or paragraph 2 of Article 1134 prohibits the return of an agreement unless by mutual agreement. Any withdrawal, refusal to perform an obligation should be void, considered ineffective. This is the position of the doctrine and law. The capital allowance is therefore reviewable only if the parties clearly intended to link the compensation of time. In 1995, the Supreme Court refused to review a capital indemnity clause because the parties’ intention was not clear.

• The unilateral promise to sell it is not a promise of sale indenture if the capital allowance is so consistent that being economic sense, the recipient has no choice “rational” than buying?

No. The Supreme Court has said in a ruling in 1989 (returning to a previous case law) that no matter what the cost of capital allowance, the beneficiary has no obligation to buy: it is free to remove or not the option and the contract is a unilateral promise of sale.

• The beneficiary of an indemnity clause capital can yield his right (to buy or not buy)?

Yes. When one holds a right of claim, we may assign the right of claim, but this sale is subject to cumbersome formalities of Article 1690 of the Civil Code. These procedures are intended to inform the changes he promised creditor must inform, serve the assignment to promise, in the manner provided in this article. In addition, section 1840 A of the Tax Code, which requires a deed, applies to assignments of promise. The formalities in case of transfer of promise are heavy.

This is why the practice has designed a parade to avoid the formalities of Article 1690 of the Civil Code and 1840 A of the General Tax Code: Provide the unilateral promise to sell a “substitution clause” in which it is stipulated that the beneficiary, with the exception of a real estate professional, can substitute any person as it sees fit and will remain bound to all obligations and shall enjoy the same rights as one. Upon the conclusion of the promise, the promise is informed and accepts the person optionally substituted (which will replace the beneficiary), and there is upstream authorization and information to override the formalism of section 1690. The Supreme Court accepts this mechanism, it now considers that this right of substitution can not be analyzed as an assignment of claim and this claim is found in many cases: it is settled case-law and there are some non-stop confirmed in the 1970s-who say that the right of substitution is analyzed in a legal stipulation

• What is the outcome of the unilateral promise to sell?

The outcome of the unilateral promise of sale may result from two different assumptions. First hypothesis: the beneficiary does not exercise the option (it does not purchase the property within the time limit). The unilateral promise of sale is void. No contractual liability can not be charged to the recipient because it was merely exercising a right, not to buy one. The only thing we can ask is the possible payment of compensation of immobilization (Court of Cassation, 1993, “the violation of the unilateral promise of sale by the promise resolves to damages), this solution is criticized by the doctrine, which opposes section 1134 of the Civil Code, that the consent can not be retracted). The refusal to buy may result from a free will but the silence held until expiration of the period is refusing to buy.

Second hypothesis: the recipient exercising the option (he bought the property in the time frame). The unilateral promise to sell off. At that time, the acceptance of the beneficiary meets the offer of a promise, instantly, the sales contract is formed. Very often in the contract, the fate of the capital allowance is provided, the sum is usually lodged with the notary so we do not give back the check to the recipient but the amount is transferred in the sale when it takes on another role : this allowance is transformed into capital deposit is part payment of the amount of the sale price. But the parties may call it differently, for example they may provide for the allowance of capital becomes a penalty clause in the sale.

NB: if the recipient exercises the option, the contract is a sale and not a promise of sale indenture. It would be pointless to go through the promise, the acceptance form the sale itself.There are no more unilateral promise of sale but a sale. This is the day of acceptance of the recipient need to check the ability of the buyer.

Promises synallagmatic Sales [ modify ]

The promise indenture of sale is a sale: Section 1589 of the Civil Code says that the promise of sale indenture is sold. Exceptionally, certain promises synallagmatic sales are not sales, because the parties have so agreed, for example because they have matched the promise indenture of sale or the sale of a condition precedent, deposit or ‘-a penalty.

If there is no agreement on the deal and the price, there is no sale, indenture or promise of sale. A reading of section 1589 of the Civil Code, you must understand that the promise of sale indenture is not a contract but rather an independent sales “poorly qualified”.

The promise of sale indenture can it, as the sale include a condition (event future and uncertain obligations pushing birth)?

Yes. Either the condition is fulfilled and the obligations are expected to be born from the meeting of the minds (there retroactivity) is the condition is not fulfilled and the contract is null and void. The event which is related condition should not depend on the willingness of the debtor (in this case, it would be called potestative). In sales, the condition precedent to obtaining a loan is one that is the most common: the purchase is if a bank granting the loan. Either the bank agrees that credit and the sale shall be deemed concluded at the meeting of the minds, or it did not consent and sales fell.

The promise of sale indenture can it, as the sale contain a term (and some future event that pushes the enforceability of obligations)?

Yes. The forward sale shall be assigned a term suspension, the obligation exists, is already born, but we can not demand his execution until the end of the term. In sales, the term can affect the transfer of ownership (eg, the parties may stipulate that the sale is made immediately but the transfer of ownership will take place later), and may also affect the payment of the price generally the full effects of the sale may depend on a date or event certain. For example, a reiteration notary clause provides that the parties push all the effects of the sale to the signing of a deed will be done before such notary to such date. In the clause of repeated before a notary, the effects of the sale are repulsed, but the contract is concluded, it is already a sale, assigned a term suspension. All obligations arose from the agreement and they will become due on the day of the signing of the deed, which is an event-some. If the date of signature, a party fails to appear, what is the penalty? We are already in a sale, the bonds have already been born: you will see the default and force out. The seller will then have the obligation to transfer ownership (already born obligation that becomes due). The courts may find that the transfer of ownership takes place automatically on the date of signature.

What is a promise of sale indenture or contract of sale with deposit or forfeit?

It may be that under the name of a promise of sale indenture actually hides a sales agreement with deposit or withdrawal.

The deposit is a sum of money paid by the buyer from the contract and allows each party to abandon the contract. It is a protective mechanism of the buyer because if it was he who renounces the contract of sale, it will lose the amount paid, if however the vendor to give up the sale, he will pay double the amount . This is an option not to perform the contract is expected to advance the event that either party did not execute.

The unilateral withdrawal is the option not to perform the contract, to reconsider its commitment, as it allows itself to deposit the right not to run it. In most cases, this power is accompanied by a sum of money. Is it necessary that this right of withdrawal is accompanied by a kind of money? No, the Supreme Court acknowledged that the cancellation option can be free as long as the other party accepts it.

It is possible that a sale is completed and provided precedent. In this case, we must dissect the situation, whether the condition is well done or not, and if the term is expired or not.

More exceptional promise indenture of sale is not a sale but a contract of sale preparation, so a stand-alone contract. This is made possible by the residual nature of the will of section 1589 of the Civil Code of the sale agreement. The idea is to separate in time the contract of promise and the contract of sale (the sale will be concluded later.) There exists a contract that is a promise of sale indenture but not yet for sale so that does not have the same legal regime. The days of the conclusion of the sale agreement, there is already agreement on the deal and the price, it is a consensual contract already concluded, but the parties anticipate that we must add an additional requirement for the validity of the contract Sales-condition-not yet filled. In case of violation of this agreement for sale, only damages would be eligible.

The framework contracts [ edit ]

The contracts are part of complex contracts involved in the distribution sector. It is rare that a manufacturer or producer sells its products direct to consumers, generally passes through distributors or retailers who have the task of selling to consumers. There are relatively long, complex, set up between the contracting parties to distribute the products. Contracts are often regulated by Community law, which need stability and spread over time (between two and ten years).

They provide multiple obligations on others, sometimes because of financial relations is possible that the producer agrees payment facilities to retailers, he participates in joint operations, adverts for the installation of the store retailer to make it recognizable by consumers. In many contracts framework, it is expected that the retailer will provide in a particular producer or the retailer does not provide as with individual producers (exclusivity) that will not sell its products at this retailer. The concession contract (automobile brand) is such a framework agreement where there is often an exclusivity clause, it is the same for the franchise agreement, the selective distribution agreement (beauty products high marks) and the exclusive distribution agreement. For these supplies, there will be during the lifetime of the framework agreement concluded bellies for the application, implementation of the framework agreement concluded, the framework contract is then a pre-sales contract between the supplier and the distributor.

The framework contracts were important issues in jurisprudence, with an early 1971 start of litigation on the pricing, which is not yet quite finished. This litigation has focused on the nullity of the contract framework required by retailers.

These contracts are favorable for a few months or years to retailers, then they gradually become unfavorable, so they wanted out of the contract. Two options available to them: either they used the unilateral termination clause in the contract, but the amount to be paid to use this right was often too high, or they sought the annulment of the contract for legal indeterminacy of the price (often on For example: “the price will be that prevailing on the date of delivery”) on the basis of Article 1591 of the Civil Code.

Supreme Court, 1971; Attendants brand

The Supreme Court gives reason to retailers at first. The doctrine has criticized the position of the Court of Cassation, which qualified under contracts of sale or indenture promise of sale (although these contracts appear to be more contracts in preparation for sale) and was based on Article 1591 of the Civil Code on pricing to cancel these contracts.

Supreme Court, 1978; Brewers

The Supreme Court agrees to see the contracts under contracts of sale and self is based on section 1129 when the Civil Code (law of contracts on the determination of the thing). The Court of Cassation exchange visa (it goes to section 1591 in section 1129) but always cancel these contracts. This position was again criticized because it equates the thing (which concerns only Article 1129 Civil Code) and the price it considers that there are already required to pay the price when it is not in the conclusion of the contract under obligation to pay the price: this obligation will arise only when sales are concluded.

In the early 1990 stops ensue incomprehensible and contested.

Supreme Court, 1995; (4 stops with “Alcatel”)

The Supreme Court continues to rely on Article 1129 of the Civil Code, “where an agreement provides for subsequent contracts, the indeterminacy of the price in the original contract does not, except as provided by law, the validity of this contract. “ According to its new position, whose legal basis is Article 1134 (mainly) and 1135 of the Civil Code, there is more to fix the selling price upon the signing of the framework agreement but only at the sales; abuse in pricing may result in termination or compensation. There is always a price control by the judges (the responsibility of the supplier who abusing its economic position can be implemented), but the control moves from training to performance of the contract. The position of the Supreme Court in that case in 1995 is legally correct and economically just (whereas before, the invalidity of the contracts was often sought and obtained even when there was no abuse in the pricing ).

Training [ edit ]

The sales contract meets the basic validity of contracts under Article 1108 of the Civil Code, as well as conditions specific to the sale of section 1583, which says that the sales contract is formed upon when the parties have agreed on the deal and the price.

Principle of consensus [ edit ]

For the sales contract is valid and concluded, it must meet an offer and acceptance. The offer or acceptance must be firm (for example, a manifestation of incomplete tender where price is not specified is not considered an offer). If a party withdraws unlawfully, it shall be liable in tort, in some cases (based on the judgments, however, unclear), the withdrawal does not in tort but the execution of the contract.

Article 1154 Civil Code provides that all those to whom the law does not prohibit it may buy or sell. This article refers to the common law disabilities (of use) and the special right of sale.Bans the sale or purchase prescribed by law are rare, they are:

• some people can not become contractors (buyers in an auction), for example, agents who can not buy that they must sell-. This prohibition is based on the presence of a conflict of interest. The penalty is relative nullity: that which is protected by the disability may apply for annulment.
• not a legal professional can acquire a property that is the subject of litigation because it is able to know the legal solution of the property.
• guardian can not acquire the property that it represents

Along with these disabilities point of use, there are disabilities exercise for minors or for adults protected by law such as major under curatorship-for-serious acts or adults under guardianship (real regime disability). This does not sell or buy through the mechanism of representation, in addition, the disability plan can be developed.

Terms of Sale [ edit ]

The sales contract is to instant execution, everything is done in a long line: the agreement will automatically result in principle the transfer of ownership. However, the parties may develop this model of instantaneous formation of the sale.

Conditional sales [ edit ]

The sale may be in the condition subsequent.

This is a sale that is as long as the condition subsequent was not realized, if implemented, the contract will be automatically destroyed retroactively (so it’s the opposite of the sale under suspensive condition).

A common condition subsequent sale is the sale to repurchase, the seller reserves the right to return the goods sold with refunds of prices and costs incurred by the sale (there will be, for example taking into account the capital gain) . This mechanism provided by the Civil Code is considered by courts and commentators to a condition subsequent sale with potestative (valid as provided by law). The advantage of this sale is primarily tax: it can be used to fund a credit transaction.

The sale may also be under a suspensive condition.

This is a sale that will be concluded only when the condition precedent to be performed, if it occurs, the contract will be automatically entered (there will be retroactive birth of Obligations).

Condition precedent to a sale is the sale of common suspensive condition of obtaining a loan (a loan-contract then the condition precedent of another contract-sales). It is regulated by Law of 1978 (Article L. 312-2 and following of the Consumer Code) that protects consumers on credit, a buyer who is profane. The buyer will often take several loans, if a loan is not reached, any financial transaction falls. All loans are entered under the condition subsequent of property sale in 4 months and selling real estate is made under the condition subsequent of obtaining a loan. This legal mechanism binding contracts between them is very protective of the consumer. In real estate sales, the law presumes that the buyer does not have the money: if the buyer does not specify how it does not need written loan (s), the protective mechanism of order applies. According to case law, the loan is considered earned when the loan is exactly what the wish is granted, the buyer (not the time or money is actually paid, which may yet seem more rational since the loan is a real contract-). In the event that the buyer deliberately not be granted or loans, the case law punishes the dishonest buyer on the basis of Article 1178 of the Civil Code that the condition is deemed fulfilled when the debtor is , required under this condition, which prevented the completion. The buyer has frustrated the contract, can not usually buy, will benefit or the penalty clause, the sale will however not be concluded.

Sales subject to experimentation [ edit ]

Sales to the test (sale under suspensive condition) or to taste, under the Civil Code, are subject to experimentation.

The sale trial (Article 1588 Civil Code) occurs only if it is expressly provided. If the buyer is not satisfied with the product purchased in the trial, he must know if the sale is deemed concluded. The refusal must be objectively justified (the buyer must give the reasons, for example, the buyer reported that the sound of a hi-fi equipment does not suit him). The test is a condition precedent: the sale is retroactive if the buyer is satisfied, otherwise the sale is destroyed.

Selling to tasting (Article 1587 Civil Code) is prescribed by the Civil Code allows the tasting as a condition subsequent to the sale of wine, oil and other things that one has a habit of tasting. In this case, the sale is by choice, discretionary, subjective to the buyer. The tasting is not a condition precedent because it is totally discretionary.

Sales with right of withdrawal [ edit ]

The option to withdraw the sale may be of conventional: the parties may stipulate the right to withdraw, not to enforce the provision. It can also be of legal origin: the consumer law in many states, and each time a sale is considered “aggressive” there is the option of withdrawal (eg, home sale).

What are the sales with conventional withdrawal option? This is the sales agreement with deposit or forfeit clause.

The deposit is a sum of money paid by the buyer from the contract and allows each party to abandon the contract. The mechanism of the deposit is protective, so the Consumer Code states that any amount paid by the purchaser is deemed to be deposit-unless the parties stipulate otherwise,. In practice, the vendor often removes the presumption of deposit stating that the amount paid by the buyer is a down payment.

The unilateral withdrawal is the option not to perform the contract, to reconsider its commitment, as it allows itself to deposit the right not to run it. She previously was possible only for sales called “aggressive” such as distance sales or sales at home (in these cases, the option to withdraw is legal). For many authors of consumer law, the withdrawal is part of the training process of the sale contract: The first step is always the genuine agreement between the parties, but can be followed by a second stage which is the withdrawal period. The sale will be concluded if the buyer does not object (silence is consent in this case because it is detailed). For many authors of the civil law, the withdrawal is in the process of the contract of sale: the sale is concluded it is possible to return it.

Sales formal [ edit ]

The sale is a consensual contract, in principle, but there is a return of the formalism, we see now formal sales grow for the sake of protection. The law often requires that the sales contract is written and includes mandatory on pain of nullity (for example, that the contract lists the characteristics of the product or shipping information). Several French laws (including one from 2000) and a European directive have adapted the rules of formality for sale on the Internet.

Effects of the sale [ edit ]

Transfer of ownership and risk [ edit ]

The transfer of ownership takes place after conclusion of the sale, except such things (where the transfer of ownership takes place during the individualization). The parties may postpone the transfer of property by a term or condition precedent.

The transfer of risk accompanies the transfer of property (Article 1138 Civil Code). The retention of title does not the burden of risk on the user because it is not the owner, the seller has an interest in separating the transfer of ownership and the burden of risk (for example, by supporting risk upon delivery).

There are legal and contractual exceptions to the principle of binding of risk transfer to the transfer of ownership.

Statutory exceptions:

• Article 1138 Civil Code raises an exception on the delivery of the property: the risks are not borne by the buyer-owner yet but by the seller when there is a delay in delivery. It is a sanction for non-compliance with delivery by the seller.
• Paragraph 2 of Article 1138 of the Civil Code provides that if the seller does not deliver the thing sold, the buyer may give notice to do so. This notice retransfer to the seller the burden of risk.
• Article 1182 Civil Code says that if the condition precedent of the sale will occur, the transfer of ownership is considered to be realizes the formation of the sale (there is retroactivity), but before the completion of the condition is although the seller is given the risks.

Variation by agreement:

• the parties may separate conventional risk transfer and the transfer of property (for example, the transfer of risk is often delayed the issuance of the thing).

The Vienna Convention (international agreement) does not only transfer of ownership of risk transfer. It takes place at the time of delivery of the goods: the seller assumes the burden of risk of the thing as it has not delivered. The issue occurs when the seller no longer has control of the thing, because he has entrusted to the carrier or the buyer. The buyer did not control anything during transport, the Vienna Convention provides that it is possible to derogate from the conventional mechanism provided (for example, parties can follow the international mechanisms for INCOTERM or other).

Birth of the obligations on the seller and the buyer [ edit ]

Once formed the sale, the seller and the buyer will have to perform their obligations. For the seller, it is primarily to ensure the matter and issue, and for the buyer to pay the price and remove the thing. These two conditions must be met and are not severable.

Obligations on the seller [ edit ]

The seller has two main obligations: issue and ensure that.

The sale is an indenture but makes the seller more than the load requirement of the buyer. The Civil Code contains a chapter of 47 articles (Articles 1603 and following) the obligations of the seller. Many bond “accessories” weigh on the seller’s duty to inform, advice, safety (for example with the European directive on defective products). Article 1162 Civil Code further states that “every contract is interpreted against the seller Dark” and the original vendor’s creditors have increased. The status of professional seller is more risky than before: the professional seller is now considered a seller who knows all of its products (or “ought to know everything”). Several years ago an almost irrebuttable presumption of bad faith and that and much criticized by many authors. The buyer is entitled to the thing he has acquired and operated as specified, it has a multitude of actions.

Contractual information [ edit ]

The contractual obligations of information belong to contract law and are not specific to the sale. We distinguish the pre-contractual obligation of information (that every seller must make the buyer aware of the essential characteristics of the product), whose failure is similar to the reluctance fraudulent sanctioned tort on the basis of Article 1382 the Civil Code, and the contractual obligation information.

The seller has an obligation to disclose:

• the essential characteristics of the product: the conditions for use of the property it sells, the designation clause in real estate matters, the characteristics of the building; easements that may be attached to the building, the presence or absence termites, the presence or absence of asbestos and so on.
• the potential hazards of products: the seller must notify the buyer of the product hazards (eg a drug).
• recommendations for use of the product: the seller must advise the buyer since it is necessary for the proper use of the product (for example, computer products).

In the case of classical xix ^th  century , the buyer was required to learn himself to be “curious”, while in modern jurisprudence there is a balance between a minimum of curiosity and a buyer information by the seller: a minimum of collaboration between buyer and seller is required.

The parties to the information requirements are the buyer, the seller, but also third parties or other wholesalers. For example, the courts decided that the sub-purchasers could legally take action against the seller first.

The disclosure obligation is an obligation of means, it is the obligation by which the seller provides the information by pledging to do everything possible to satisfy the buyer. It is the debtor of the obligation to prove that he has performed the obligation (for example by a full written) The distinction between the obligation of means and the obligation of result follows from the writings of Demogue. Some authors believe, however, that no breach of contract and contractual liability are not: there would be no liability in tort.

Obligation to deliver [ edit ]

The obligation to deliver is “the carriage of the goods sold in the power and possession of the buyer.” There is a distinction between the transfer of title-abstract-and delivery-hardware-specific. The issue has a material aspect (the provision) and one aspect of compliance (the disposal of the thing must be issued consistent with the object of sale). The Civil Code defines the issue, not the possession. The seller delivers when the thing is this thing available to the buyer (delivery ¹) who simply go and get (it is the duty of retirement).

Provision of the thing [ edit ]

The Civil Code distinguishes the terms of the issue depending on whether the property is movable or immovable.

The issuance of a building (Section 1605 of the Civil Code) is done by handing the key to the buyer or by delivery of title: it is a real issue (referred to as “real tradition”) .

The issuance of a quérable furniture is not portable: the buyer should get the thing loose with the seller, where it is.

The buyer and seller agree on the time of issuance. If delivery is not made on time, the contract changes in the form prescribed (eg exception of default or termination). If the parties have no plans on the issue, the Court considers that the issue should take place “instantaneously” (with a margin as appropriate) or “within a reasonable time” be determined by the judge.

The deadline for grant may be indicative or imperative:

• it is imperative the end of the term makes the issue due
• If specified, the buyer must give notice to the seller to ensure that supply is due

Whether the delay which must take place or delivery is imperative indication, it should read the terms of the sale agreement on the issue. Between professionals, time is usually an indication and is accompanied by a disclaimer in case of non-compliance (however, the practice should not be indicative of abuse, fear of being punished: for example, a professional may deliberately choose to issue when market prices are high). Between a seller and a buyer profane, secular buyer (consumer) can be solved automatically, without going through the justice-the contract for failure to issue within a period of seven days.

Issuing consistent [ edit ]

The delivery of the goods must comply. It is forbidden for a business seller to include a clause allowing him to change the thing to deliver, for cons, where technical progress of the thing between purchase and delivery, the seller may make the buyer with no increase in price.

It must not only be delivery of the goods in the condition it was at the time of sale (under section 1614 of the Civil Code), but also all its accessories (whether physical or legal) and of all that has been included primarily for its use (eg a manual or fixtures; a right of way or a property settlement or administrative records). If missing any items, the seller commits a defective performance which may result in termination of the contract or the execution or the payment of damages.

The buyer has under the law of common law period of 30 years to act in case of non-compliance (the legislature may shorten this period in the future) but in practice, the sales contracts often contain a shorter period to act (eg 1 or 5 years). Jurisprudence considers that the buyer is supposed to look at it issued, according to his ability, then accept or refuse. What is the intensity control to be exercised by the purchaser of the thing delivered? It depends on its ability: the buyer must denounce this profane it “obvious”, while the professional buyer must denounce the lack of conformity he sees or is supposed to receive. The case law bases this “burden” (between the obligation and duty) termination of the articles “catch-all” 1134 and 1135 of the Civil Code. In international law, the Vienna Convention raises the same principles of disclosure of non-compliance. NB: the buyer does not have to look at it as it is issued (according to the case, sometimes “lax”, it is recognized that the buyer examine the matter within a reasonable time can sometimes be several months).

A buyer who denounces-after-examined the lack of conformity of the thing, has the right to act within the law of 30 years (unless the contract provides otherwise).

In case of non-conformity of the thing sold, the buyer has several actions.

• action execution: the buyer alleging non-compliance gives notice by registered letter the other party to fulfill its obligation to deliver consistent.
• action termination by agreement: the buyer alleging non-compliance first asks amicable termination of the contract of sale. If the other party acknowledges non-compliance (eg after using an arbitration agreement), then both parties agree to terminate the contract. If instead the buyer and seller do not agree, the buyer will ask the judge to terminate legal
• legal action to terminate if the parties have not provided a way to cancel the sale with a friendly non-conformity of the thing granted, it is the judge to decide on the conformity of the thing and order the legal termination if the thing does not comply.
• action on request for damages: the buyer alleging non-compliance may claim compensation from the seller. Expected in principle, the Supreme Court said the compensation amounted to an equivalent performance and not a contractual liability.
• action allowance: the buyer alleging non-compliance requires a reduction in the price of the thing, due to its low compliance.
• the seller may stipulate that in case of lack of conformity of the thing, it limits its liability, but case law “Chronopost” of 1996 and laws relating to the breach of contract or fraud make the disclaimer invalid if it void the contract of its contents.

Warranty obligations [ edit ]

The obligation to guarantee the seller (Article 1625 et seq of the Civil Code) has two different objects: the peaceful enjoyment of the thing (warranty against eviction) and the absence of defects of the thing (from latent defects warranty).

The plan of this guarantee is particularly severe with the seller, who can hardly be exonerated: as long as the warranty conditions are met, it is due. A buyer who implements this guarantee, it also implements the contractual liability of the seller.

Warranty against eviction [ edit ]

The guarantee of eviction (section 1626 to 1640 of the Civil Code) is used to ensure all that disturbs the quiet enjoyment, possession of the thing (eg the buyer learned after buying a third or seller has a easement on the thing or disturb its use in any way). We can see the warranty against eviction from the personal and the guarantee of crowding out others.

Ensuring staff are crowding out the general guarantee that the seller will not disturb the enjoyment of the buyer of the thing sold, or by a law that would have kept the thing (eg a right of way) or by a disorder of fact (eg a business near the business assets sold). This warranty against eviction disturbances of law and fact the seller is transmitted to the beneficiaries of the seller, it does not require “that should guarantee can crowd out”.

The guarantee of eviction because of the third is the general guarantee that third parties will not come to disturb the enjoyment of the buyer a right they would have on the thing sold (for example, an easement for third). The guarantee of eviction because of the third does not protect disturbances made from third parties (for example, a noisy neighborhood), however the buyer must be aware of potential problems that could cause third parties. The guarantee of eviction because of the third party is subject to the absence of information of the buyer before purchase and is not of public order (unlike the warranty against eviction because staff).

When there is foreclosure, the purchaser may act by action or by way of exception.

By action, the buyer asks the seller directly meet its guarantee, either before the eviction (the buyer is at risk of eviction) or during (the buyer is in conflict) or after (the buyer was ousted)

By way of exception, the buyer is involved in a lawsuit to claim warranty.

The third party may have rights in the thing sold (it may for example want to recognize his ownership). In case of adverse possession, the buyer will be ousted, in other cases, called “undeclared charges” (eg the right to draw off or lease a third), the foreclosure could be only partial. The buyer will not jeopardize the guarantee of a third eviction only if he proves that he would not have bought knowing the existence of the right third.

Warranty against latent defects [ edit ]

Main article: warranty against hidden defects .

The warranty against hidden defects (prohibitive) protects the buyer against defects that degrade completely or so significantly the quality of the thing sold he would not contract (article 1641 Civil Code). The latent defect is a defect making the thing unfit for use, it has a pathological character in the thing, which remains under the contract but is in poor condition-. Since about 1985, and vice hidden non-conformity are clearly distinguished by the courts.

The theory of latent defects existed since Roman law, where she was then widely applied to animals and slaves ^{[ref. needed]} .

Legal Exclusions [ edit ]

The warranty against hidden defects applies to all goods in trade (whether tangible or intangible, movable or immovable, new or used). Some sales, however, are legally excluded from the warranty against latent defects:

• the sale of animals “rural”, under the Rural Code and are not guaranteed against faulty default
• the sale of property to build, because it is a special regime (under the Civil Code) applies and which provides for liability of manufacturers.
• sales made by authority of law, which are considered sufficiently reliable due to the intervention of the public entity.

Exclusions conventional [ edit ]

The Civil Code states that “the seller is liable for latent defects, unless he has ruled out any security.” The exclusive warranty clause, however, is valid only if the seller did not know the vice (good faith), if the clause is void (Article 1643 Civil Code). But the law is very strict with professional sellers.

Since the 1950s, it considers that the seller should be aware of hidden defects of the products it sells, but whereas before bad faith was a rebuttable presumption in case of hidden defects (the seller can prove otherwise to poor faith) it is now deemed to conclusively: the seller can not prove otherwise in bad faith, he shall know the hidden defects of what he sells.

Between buyer and seller in the same professional specialty, the jurisprudence considers that both parties are on an equal footing and therefore accepts the validity of the exclusive warranty clause. The case law seems to have a design more off the notion of same or similar activities (eg, a garage and a construction company were considered to have comparable means of controls). Some cases, however, canceled an exclusive warranty against hidden defects among professionals of the same specialty, however, was characterized as the vice of “undetectable”.

Often vendors provide conventional collateral such as after-sales service for one or two years with possibility of extension. These clauses are sometimes more favorable to the consumer that the legal guarantee, but it also may be less favorable in this case, the judges censoring the restrictive provisions and validate the extended warranty. The buyer, even out of the conventional warranty (which is necessarily positive), still has the legal warranty against hidden defects.

Implementation [ edit ]

The seller is not required to guarantee visible defects (Article 1642 Civil Code). To implement the legal warranty against hidden defects, you must prove the existence of a defect that is hidden, unacceptable and prior to sale.

How to prove the defect?

According to the materialist doctrine, the defect is an alteration, a malformation of the things that affect its use. In most cases, evidence of the defect will require expertise (the proof is difficult to make, especially if the thing is used). ”Since it is a fault making the thing unfit for its use, only warranty against hidden defects is open” (Civ. 1 ^st  , 1997). This law implies that when the thing has a defect, we can no longer be based either on non-compliance, or on the error, but the action in warranty against hidden defects does not seem to exclude the fraud, which helps protect the consumer while punishing bad faith of the seller. ”The hidden defect disturbs the normal use of the thing” (Civ. 1 ^st  , 2001).

The doctrine “dualist” distinguishes between the defect and the defect in the thing, contrary to the doctrine of “tier.” The case law since 1993, is generally linked to the design “dualist”.

How to prove that the defect is latent?

The latent defect is a defect that a normally attentive examination does not reveal, contrary to the defect (which, once accepted, the buyer may fall any further action) or vice appeared.The buyer is bound only by profane a cursory review of the thing (the area of ​​obvious defects is large), while the buyer is responsible for a professional examination of the thing (the area of ​​visible defects is very small).

How to prove that the latent defect is unacceptable?

Vice is said makes this prohibitive when unfit for use, that is impossible or decrease such that the buyer would not have bought-. The severity of the malfunction is under the normal use of the thing (for example, some computer failures are not prohibitive), unless the buyer has specified that the seller wanted to make an extraordinary use .

How to prove that the latent defect is prior to the sale?

The defect must be prior to sale. This condition is not covered by the law but under the mechanism of the guarantee: the seller can not guarantee that defects present at the sale.Jurisprudence considers the time of transfer of ownership. Often will require expertise for the duration of the marriage is proved.

The implementation of the warranty against latent defects is no longer restricted to a “short time” since February 2005: it now takes two years ^one . It’s about individual cases. Previously, the Court considered that the time was running at the time of sale, and now considers the timing of the discovery of the defect-the buyer will have two years to do it that is more favorable to the buyer but problematic for the seller. The judges of the fund determine when the buyer is aware of the defect. This delay is not prefix: it is likely to be suspended (for example if the seller been slow) or interrupted (eg if the buyer makes an action referred to appoint an expert), but , the time is still enclosed within the period of law 30.

What are the actions available to the purchaser for defects guarantee?

A buyer who wishes to act as a guarantee for hidden defects has the unacceptable action, action estimatory and direct action.

• unacceptable action allows the resolution of the sale (but is not treated as a resolution). The seller takes the thing the buyer makes the thing-unless it was destroyed by the defect or acts of God, and takes the prize. If it was destroyed by means other than the defect or fortuitous event, the action can not be prohibitive.
• estimatory action allows the buyer to keep the thing tainted by receiving compensation (sections 1645 and 1646 of the Civil Code). There is a distinction depending on whether the seller knew or not the latent defect: he did not know him, he will return at the price and costs incurred by the purchaser, if he knew it would all damages and interest (compensation for all damages to the buyer, foreseeable or unforeseeable, it exceeds the regular-contractual damages).
• direct action allows the buyer to take action against the wholesaler or manufacturer, in practice, choosing the most creditworthy (the seller may have a recourse against the manufacturer, but as this is likely to be long, case law has allowed the buyer direct action in warranty against latent defects). In this case, the buyer is acting against the debtor of his debtor, not against the contractor is exceptional as a mechanism contrary to the privity of contract, it was not created by law but by case law from the late 19 ^th century.

What Does the mechanism of direct action? The transfer of ownership and therefore the theory of attachment, which is why its scope is limited.

How is implemented in the direct chain of contracts? In the contract sets, there are groups of contracts (which have a common goal) chains of contracts (which have the same objective and the same qualification in a string but an objective and uniform classified differently in a heterogeneous chain). In the 1980s, there was a discrepancy between the 1 ^st Civil Division and the three ^e Civil Division: the three ^e Civil Division confined to the direct chain of contracts, while a ^re Civil Division accepted the same in groups of contracts. Then July 12, 1991, Besse stop the plenary of the Supreme Court reminds the impossibility of direct action in the group contract, based on the principle of privity of contract.

The action in warranty against hidden defects is an action of contract, which possibly dates back to the manufacturer. This has two disadvantages: the multiplication of the trial can block the action for recovery. This is why the courts have recognized that the final purchaser can act guarantees against any hidden defects vendors (including the original vendor-manufacturer and retailer non-). But while the rulings in the 1980s (such as stopping Civ.1^re ; 9 octobre 1989) ont dit que cette action était « nécessairement contractuelle » et privait donc l’acheteur de toute action délictuelle dans les chaînes de contrats de ventes, l’arrêt Besse de 1991 casse le mécanisme fondé sur les groupes de contrat en affirmant l’absence de lien contractuel entre un entrepreneur et sous-traitant, rappelant ainsi le principe de l’effet relatif du contrat.

Un arrêt de 1982 admet que l’action directe puisse être rédhibitoire ou estimatoire (auparavant, la jurisprudence estimait qu’elle ne pouvait pas être rédhibitoire). Si le vendeur n’a pas été payé, seule l’action estimatoire est possible car l’action rédhibitoire reviendrait à lui faire rendre ce qui ne lui a pas été donné. En pratique, le fabricant (ou grossiste ou autre) ne peut indemniser que ce qu’il a payé, et qui est généralement très inférieur à ce qu’ont payé les contractants intermédiaires ; l’acheteur devra donc mettre en œuvre d’autres actions pour obtenir réparation.

Une clause limitant l’action directe peut-elle être valable ? Oui (Cour de cassation ; 1988), mais seulement dans le contrat conclu par le défendeur et non dans le contrat conclu par le demandeur (Cour de cassation ; 1995) : les tribunaux prennent en considération le premier contrat.

Garantie des vices dans la Convention de Vienne[modifier]

Une partie des garanties du droit français dans la vente –dont la garantie d’éviction- est englobée dans la garantie unique et générale de la Convention de Vienne : le vendeur doit garantir le type, la quantité, le conditionnement et d’autres éléments prévus au contrat (quand ce n’est pas prévu au contrat, cela doit être conforme aux usages) ; la chose doit être exempte de tout droit dont l’acheteur ne serait pas au courant.

Similitudes avec les garanties françaises :

• le défaut ne doit pas être connus de l’acheteur
• le défaut doit être antérieur au transfert des risques
• le fait de ne pas dénoncer les défauts apparents entraîne la déchéance des actions en garantie des défauts apparents
• l’acheteur doit dénoncer les défauts dans un délai aussi bref que possible (mais dans la Convention de Vienne, « dénoncer » signifie alerter le vendeur tandis qu’en droit français il signifie agir en justice)
• en cas d’inexécution importante, essentielle, la vente est nulle et résiliée
• en cas d’inexécution accessoire, l’acheteur est simplement indemnisé

La gravité de l’inexécution est jugée eu égard aux conséquences néfastes pour l’acheteur. La Convention de Vienne ne parle pas des clauses exonératoires : il revient à la loi nationale de les autoriser ou non.

Obligation d’assurer la sécurité[modifier]

L’obligation d’assurer la sécurité n’est pas spécifique à la vente. Le droit a de plus en plus pour but d’assurer la santé et la sécurité des personnes : en 1911, la jurisprudence reconnaît une obligation de sécurité de résultat dans les transports ; par la suite la loi et la jurisprudence affirmeront l’obligation de sécurité dans tous les contrats puis dans presque tous les domaines.

L’obligation du vendeur d’assurer la sécurité découle de la responsabilité contractuelle de sécurité et de la responsabilité du fait des produits défectueux.

Obligation contractuelle de sécurité[modifier]

Le vendeur doit une garantie contre les dommages aux personnes et aux biens. Cette obligation de sécurité a d’abord été seulement jurisprudentielle (elle était fondée sur l’article « fourre-tout » 1135 du Code civil) ; la loi (notamment le Code de la consommation ou une directive de 1985 légalisée en 1998) a par la suite obligé à garantir la sécurité des produits vendus. La garantie de sécurité du vendeur se distingue de la garantie des vices cachées, qui est insuffisante car soumise à des conditions trop strictes de délai. « L’action en responsabilité contractuelle vis-à-vis du vendeur, afin de garantir la sécurité, n’est pas enfermée dans le bref délai de l’article 1648 du Code civil » (Cour de cassation ; 1991).

L’obligation contractuelle de sécurité du vendeur est-elle de résultat ?

Non, il faut prouver que le dommage corporel ou aux bien est lié à un défaut de la chose ET que le vendeur est responsable de ce vice.

La jurisprudence a étendu l’obligation de sécurité aux personnes qui ne sont pas cocontractantes du vendeur : « le vendeur est responsable des dommages créés à son cocontractant mais aussi aux tiers » (Cour de cassation ; 1995) ; « le vendeur est responsable tant à l’égard des dommages créés à l’égard aux tiers qu’à ceux créés à son acquéreur » (Cour de cassation ; 1998) –La jurisprudence de 1998 ne limite plus strictement la responsabilité contractuelle, contrairement à celle de 1995-.

Responsabilité du fait des produits défectueux[modifier]

La responsabilité du fait des produits défectueux a un régime unitaire, qui n’est pas cantonné au droit de la vente ni même au droit des contrats ; il ne fait pas la distinction entre responsabilité contractuelle et délictuelle (pareillement à la loi Badinter de 1985 sur les accidents liés aux véhicules). C’est donc un régime global en faveur de toute personne subissant un dommage du fait des produits défectueux. Il découle des articles 1386-1 à 1386-18 du Code civil, légalisant une directive européenne^{[réf. nécessaire]}.

Quels éléments doivent être réunis pour que la responsabilité du fait des produits défectueux s’applique ?

• un bien mobilier (voire immobilier), qu’il s’agisse de produits de consommation, d’animaux, de produits du corps humain ou autres
• une défectuosité. La faute n’est pas prise en compte, la simple constatation de la défectuosité (fait générateur) est suffisante. La jurisprudence a adopté une définition fonctionnelle de cette défectuosité : « un produit est défectueux dès lors qu’il n’offre pas la sécurité à laquelle on peut légitimement s’attendre » (la notion est différente de celle du vice caché, dont le critère d’identification est le trouble dans l’utilisation et non pas la dangerosité).
• un dommage du fait de la défectuosité du produit. Il doit être prouvé par la personne victime : il n’y a pas de présomption.

L’indemnisation en cas de responsabilité du fait des produits défectueux n’est pas totale : la victime doit se fonder sur une autre action (par exemple celle en garantie des vices cachés ou d’exécution de l’obligation d’information et de conseil) pour se faire indemniser des autres dommages.

Quel est le délai d’action en responsabilité du fait des produits défectueux ?

La défectuosité du produit doit apparaître dans un délai de 10 ans. Une fois la défectuosité découverte, la personne concernée doit agir dans un délai de 10 ans.

Qui peut voir sa responsabilité engagée du fait des produits défectueux ?

• les producteurs ou fabricants
• les importateurs
• les vendeurs
• les loueurs (s’ils sont professionnels)

Comment s’exonérer de la responsabilité du fait des produits défectueux ?

Il existe quatre façons différentes de s’exonérer de la responsabilité du fait des produits défectueux :

• en prouvant que l’on n’est pas à l’origine d’une mise sur le marché du produit
• en prouvant que le vice caché n’est pas antérieur à la vente
• en prouvant que le danger est lié à une mauvaise utilisation du produit par la victime (N.B. : le fait du tiers n’exonère pas la responsabilité)
• en prouvant le risque de développement. Au moment de la mise en circulation du bien sur le marché, l’état des connaissance scientifiques et techniques ne devaient pas permettre de déceler la dangerosité du produit. Cette cause d’exonération est acceptée par les juges si le producteur ne pouvait connaître la défectuosité du produit ET a tout mis en œuvre pour éviter les dommages (par exemple, un constructeur automobile rappelle des automobiles défectueuses du marché). Elle était facultative mais tous les pays de l’Union l’ont cependant intégré à leur législation nationale (sauf pour le corps humain et ses produits).

Les clauses limitatives ou exclusives de responsabilité du fait des produits défectueux sont-elles valides ?

Non. Elles sont nulles, sauf entre professionnels et ce uniquement en ce qui concerne les dommages matériels.

La Commission européenne a critiqué la transposition de la directive sur les produits défectueux par la France^{[réf. nécessaire]}, pour plusieurs raisons :

• la France a ignoré la condition de franchise de 500 euros en répondant à la Commission que cette franchise constituait une atteinte à l’accès au droit (ce à quoi la CJCE a elle-même répondu que d’autres actions permettaient de se faire indemniser intégralement).
• la France a visé des responsables que la directive excluait et a répondu à la Commission que dans la pratique cela ne changeait rien puisqu’une action indirecte permettait d’atteindre ces personnes (la CJCE a cependant confirmé la violation du droit par la France).
• la France a mal transposé la clause d’exonération intitulée « risque de développement » (la CJCE a expliqué que les pays membres devaient retenir ou exclure la clause, mais ne pouvaient l’aménager comme la France l’a fait)

Sur ces trois points, la Cour de Justice des Communautés Européennes (CJCE) a condamné la France.^{[réf. nécessaire]}

Obligations pesant sur l’acheteur[modifier]

L’acheteur a deux obligations principales : payer le prix stipulé au jour de la vente et retirer la chose achetée.

Il a aussi des obligations jurisprudentielles fondées sur certains articles tels que l’article « fourre-tout » 1134 du Code civil. La jurisprudence a par exemple considéré que l’acheteur devait collaborer avec le vendeur ; cependant, il s’agit plus d’une « incombance » que d’une obligation : si l’acheteur ne collabore pas, il ne pourra simplement pas reprocher l’absence d’information de la part du vendeur.

Obligation de paiement du prix[modifier]

L’acheteur a obligation de payer le prix. Si l’acheteur ne paie pas le prix, le vendeur dispose de la possibilité de rétention ou de la résolution judiciaire. Le vendeur devra mettre l’acheteur en demeure de payer le prix ; à partir de ce moment courent les intérêts moratoires.

Montant du prix[modifier]

Le prix peut être évolutif (par exemple en présence d’une clause d’indexation) et peut avoir des intérêts, dont les intérêts moratoires dès lors que l’acheteur est en retard dans l’exécution de son obligation. Parfois, il revient à l’acheteur de payer le prix de l’acte notarié.

Moment du paiement[modifier]

La vente ayant un caractère immédiat, le prix se fait en principe en une seule fois à la délivrance ou avant la délivrance (le paiement anticipé peut alors être partiel via l’acompte ou être total), ou encore après la délivrance (vente à crédit).

Lieu du paiement[modifier]

Le paiement se fait au lieu où s’effectue la délivrance (le paiement est « portable » et non « quérable » : il revient à l’acheteur de l’apporter), à moins que le contrat n’en prévoit autrement.

Preuve du paiement[modifier]

Il revient à l’acheteur de prouver par tous moyens (puisqu’il s’agit d’un fait juridique) qu’il a payé le prix.

Obligation de retirement[modifier]

L’obligation de retirement de l’acheteur est « quérable ». Le vendeur doit conserver la chose tant que l’acheteur ne l’a pas retiré. Dès lors que le vendeur met en demeure l’acheteur d’exécuter son obligation de retirement, les frais de conservation reviennent à l’acheteur. Pour les biens meubles, la vente peut avoir lieu de plein droit et sans sommation à partir du délai prévu pour le retirement (c’est une résolution de plein droit). Cette résolution est entendue strictement : un délai de retirement doit avoir été prévu au contrat pour qu’elle puisse être mise en œuvre.

Notes et références[modifier]

1. ↑ Article 1648 du Code civil modifié par l’ordonnance n° 2005-136 du 17 février 2005 relative à la garantie de la conformité du bien au contrat due par le vendeur au consommateur

Voir aussi[modifier]

Articles connexes[modifier]

• Vente : approche économique