THE COURT OF APPEALS, FIRST CIVIL DIVISION.

May 3, 2000. Decision No. 757. Cassation.

Appeal No. 98-11381.

CIVIL BULLETIN.

NOTE  Jamin, Christophe ,           JCP G Legal Week (general edition)   , No.             15   ,              11/04/2001   , pp..             757-761, 10510 Jurisprudence II

The appeal brought by Mr Serge Clin, Clin staying with Miss Alexandra, 22, rue Debertrand, 91410 Dourdan, to quash a decision of 5 December 1997 by the Court of Appeal of Versailles (3rd House), the benefit Marie-Therese Natali, widow Boucher, remaining 38 Street Funds Huguenots, 92420 Vaucresson defendant to appeal;

The plaintiffs invoked in support of his appeal, the sole means of appeal annexed to this Order;

Medium produced by the CPS and VIER Barthelemy, lawyer for Mr. Clin Tips

It complains that the decision invalidating attack for condemning Mr. CLIN payable to Ms. Boucher F the sum of 1.915 million representing the return value of the photographs sold at the sales counter of February and April 1989 after deducting the selling price of 85,000 F;

The grounds that its reluctance to make known to Madame Boucher exact value of the photographs, Mr. Cline has prompted it to make a sale it would not have considered in its terms had it known the true value and that it therefore appears that the conditions of Article 1116 of the Civil Code are met;

WHILE ON THE ONE HAND, it follows from Article 1116 of the Civil Code that the judge who holds the existence of a fraud should note that the maneuvers performed are such that it is ‘obvious’ that without these the other party would not have contracted, that no finding of a judgment refers to the condition of evidence, however, holding that the existence of fraud, the Court of Appeal denied his arrest legal basis under Article 1116  of the Civil Code;

WHILE ON THE OTHER HAND, it follows from Article 1116  of the Civil Code if the fraud may result from mere silence, it can be punished only if a disclosure obligation weighs on its author that ‘retaining against Mr. Cline reluctance fraudulent without reference to a disclosure requirement that would have affected the buyer, the appeals court to stop the new private legal basis under the Article 1116  Civil Code;

THEN finally, ignoring the requirements of section 455 of the new Code of Civil Procedure , the Court of Appeal refrained from answering two crucial ways raised by Mr. Cline in its conclusions call made ​​in the first place that Ms. Boucher had already decided to sell the photographs BALTUS the price it had set itself before to find M, CLIN (Opinion p. IV Call paragraphs 7 and 10) and took second of what we can not require a buyer to the seller indicates that the price he is asking is too low (p. IV, penultimate paragraph).

THE COURT, in the public hearing on March 14, 2000, which were present: Mr. Lemontey, President, Benas, reporting judge, MM. Renard-Payen, Ancel, Durieux, Guerin, Sempere, Bargue, counselors, Ms. Teytaud-Cassuto, Catry, counselors referendum, Mrs. Small, General Counsel, Ms. Collet, Clerk of the Chamber;

The unique way, made its second branch:

See section 1116 of the Civil Code;

Whereas in 1986, Ms. Boucher sold by public auction of fifty photographs Baldus at a price of 1,000 francs each, in 1989, she found the buyer, M. Clin, and sold him successively thirty-five photographs and fifty other photographs Baldus at the same price it had set, the information chief of criminal fraud, open the complaint with a civil Ms. Boucher, who had learned that Mr. Baldus was a photographer of great renown, was closed by an order of dismissal, Ms. Boucher was then assigned to the buyer invalid sales fraud;

Whereas in condemning Mr. Cline to Ms. Boucher to pay the sum of 1,915,000 francs representing the return value of the photographs sold at the sales counter of 1989, net sales price of 85,000 francs collected by Mrs. Boucher, the judgment, after noting that before concluding with Ms. Boucher sales in 1989, Mr. Cline had sold photographs of Baldus he had purchased at public auction at prices unrelated to their price purchase, holding so he knew that by buying new photographs at a price of 1,000 francs the unit, he contracted a small price compared to the value of the photographs on the art market, thereby breaching the obligation to contract in good faith that hangs over any contractor and that its reluctance to let him know the exact value of the photographs, Mr. Clin prompted Ms. Boucher to make a sale it would not have considered in these conditions;

By so holding, so that ‘no obligation information weighed on the buyer, the appellate court has violated the abovementioned text;

FOR THESE REASONS:

Quashed, in all its provisions, the decision of December 5, 1997, between the parties, the Court of Appeal of Versailles shall, therefore, the cause and the parties in the state they were before said stop, and to be granted, the returns to the Court of Appeal of Amiens;

Ms. Boucher condemned the expense;

Said that the audit of the Attorney General at the Court of Cassation, the above will be sent to be transcribed in the margin or in the wake of the Cassis.

On the report of Ms. Benas, counselor, the observations of the SCP and Vier Barthelemy, lawyer for Mr. Cline, of Me Choucroy, counsel for Ms. Boucher, the findings of Ms. Small, General Counsel, and after deliberating in accordance with the law Lemontey M., president.

 

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