THE COURT OF APPEALS, THIRD CIVIL DIVISION. Training section.

February 21, 2001. Decision No. 233. Partial Cassation.

Appeal No. 98-20817.

CIVIL BULLETIN – BULLETIN.

NOTE S:      Mazeaud, Denis     The Dalloz, 33, 27 September 2001, pp. 2702-2705  

 Constantine, Alexis  ,   

R. Libchaber, Directory of Notaries Defrénois, 2001-06-15, No. 11 p. 703, 

Christian JAMIN. , Legal Week, General Edition, No. 7, 2002-02-13, jurisprudence, II, 10027, p. 348-350, 

Patrick Chauvel., Legal Week, Enterprise and Business, No. 20, May 16, 2002, Jurisprudence, p. 809-811, note 

On the appeal of: 1 / Lucien Plessis,

2 ° / Colette Plessis, wife separate property of Mr. Lucien Plessis,

The hotel remains both Galliéni Avenue Gallieni, 83110 Sanary-sur-Mer,

to quash a decision of 20 May 1998 by the Court of Appeal of Aix-en-Provence (1st Civil Chamber, Section B), for: 1 / Jean-Luc Errera,

2 ° / Gaston Errera,

Moreover, both 1044, chemin de la Calade, 83140 Six Fours The Beaches

3 ° / company Hôtel Le Gallieni, limited liability company, headquartered in Toulon Avenue, 83110 Sanary-sur-Mer, represented by Massiani, in his capacity as court-appointed liquidator,

4 ° / Ms. Jeanne Arland, Errera wife, living 1044, chemin de la Calade, 83140 Six Fours The Beaches

5 ° / of the real estate company (SCI) Gallieni, headquartered avenue Maréchal Gallieni, 83110 Sanary-sur-Mer,

6 ° / M. Bor, remaining 59 Avenue Foch, 83000 Toulon, taken as representative of the creditors in bankruptcy of SCI Errera,

7 ° / of the real estate company (SCI) Errera, headquartered avenue Maréchal Gallieni, 83110 Sanary-sur-Mer,

8 ° / Mireille Besson, wife Massiani, living 3091, avenue de la Resistance, Cap Brun, 83000 Toulon, taken in his capacity as liquidator of the company The Hotel Gallieni

9 ° / of Mrs. Rose-Marie Errera, wife Bricout, remaining 117, boulevard Kistling, 83110 Sanary-sur-Mer,

10 ° / Jean-Pierre Gas, remaining 4 Street Revel, 83000 Toulon,

defendants to appeal;

The plaintiffs cite in support of their appeal, three grounds of appeal annexed to this Order;

Means produced by the CPS Ghestin, Attorney to the Boards for spouses PLESSIS;

FIRST SUBMISSION OF APPEALS

It complains that the decision invalidating HAVE attacked Mr and Mrs PLESSIS dismissed their applications for revocation of sales made by the acts of May 26 and July 6, 1989 conviction for fraud and vendors to pay them the sum of 3,419,887.53 francs in compensation for their loss;

The grounds that the conditions of cancellation for fraud are not present on the two claims made by Mr PLESSIS because of the inexcusable error of which he claims to have been a victim, the alleged ignorance of the defect classification in category two stars as the unauthorized use of openness and non-compliance with safety rules are not eligible, or even conceivable, for his part in connection with the acquisition of the public not only when he had an obligation particular to learn himself in light of the professional nature of the operation but also that elementary checks with the sellers or administrative services easily and would have immediately revealed the exact administrative position on these various points of the institution;

that, moreover, the decisive nature of the error on the default classification in category two stars is not shown, it is not even mentioned in the deed of May 26, 1989 to appear only not significantly in the statement prior to the Convention of July 6, 1989 it was not one of the objects;

that the application for annulment and compensation on this account will therefore be rejected;

1) while the terms of the dispute are set by the respective claims of the parties that the defendants in an action for nullity of the agreements at issue for fraud and damages have not invoked the inexcusable nature of the error by Mr. Plessis on the administrative situation of the hotel and its non-compliance with safety rules, in between when the average Mr. Plessis to dismiss its claims, the Court of Appeals misstated the terms of the dispute violating Article 4 of the New Code of Civil Procedure;

2) While the judge must at all times observe and enforce itself the principle of contradiction, that under the plea of ​​office of the inexcusable nature of the error of Mr. Plessis on the administrative status of the The hotel and its non-compliance with safety rules, without causing the prior explanations of Mr. Plessis on this ground, the Court of Appeal violated Article 16 of the New Code of Civil Procedure;

3) WHEN the fraud consists of the breach of duty of loyalty of the other party constituting willful resistance, without which the other contracting party would not have contracted or would have contracted at a lower price, it is established that the Hotel indivisible object of the two sales at issue had not been the subject of an administrative permit opening only twice in 1984 and 1988, the Commission had ordered security to farmers, merchants, to the hotel in accordance with safety standards and in addition, the hotel had been falsely presented as classified in the category two stars, in deciding that the disloyalty of the sellers who had concealed Mr. PLESSIS these critical elements conditioning the possibility of operate the hotel did not allow it to invoke the fraud on the grounds that his mistake was inexcusable, the Court of Appeal violated Article 1116 of the Civil Code;

4) While the reluctance of sellers who fraudulently caused the error of the buyer always makes the mistake and excusable caused; in estimating the error of Mr. PLESSIS caused by the reluctance of fraudulent sellers and disloyalty was inexcusable, the Court of Appeal has again violated Article 1116 of the Civil Code;

5) while in its conclusions of Appeal, Mr. Plessis had argued that not only the sellers had concealed the lack of administrative permission to open the hotel, two minutes established in 1984 and 1988 requiring compliance of the hotel safety rules and had falsely stated that it was classified two stars but also that they disguised flaws making the hotel unusable without major work (p. 13 al Concl. . 3) in failing to examine and respond to this means conclusive, the Court of Appeal violated Article 455 of the New Code of Civil Procedure.

SECOND SUBMISSION OF APPEALS

It complains that the judgment to have declared inadmissible, as a new call into question the application of Mr. PLESSIS tending to see the sellers jointly and severally ordered to pay him the sum of 3,419,887.53 francs as damages on the basis of fraud and their tort;

THE grounds that defense to the main appeal directed against him, Mr PLESSIS can challenge other leaders of the decision referred than those specified in its notice of appeal;

it is not admissible, even in this context, to make an appeal request does not meet the new regulatory requirements that are the demands price reduction and subsidiary compensation he claims substitute for the principal, with the cancellation of conveyances for fraud issued and admitted at trial, and the other appellants challenge in the overall qualification but only inappropriate action in reducing and Mr PLESSIS suggesting itself in its conclusions the allocation of damages in the amount to reduce the price;

in fact, such claims do not meet the requirements of sections 564 and 567 included the New Code of Civil Procedure invoked by Mr PLESSIS simple reminder of these texts without specifying how they are met in this case;

it is clearly not the counterclaims;

these claims, on all the various funds offered, are not intended for the same purpose as the principal claim to continue the initial interest apart from reducing the price of disposal or compensation without calling into question the very existence of these contracts, including on the basis of fraud in which the action for damages, performed as a principal and not ancillary to an action for nullity in respect of damage caused by the cancellation is distinct in its aim of this last action;

that these claims were not virtually included in the application submitted to the trial court and does not constitute the accessory, the consequence or the addition given the difference of the object and purpose that distinguishes them;

finally, the various requirements of Article 564 of the New Code of Civil Procedure do not self-satisfied, the new claims do not tend to oppose compensation claims made in this instance, the price of shares and there are unclaimed funds or to avoid adverse claims, not only to determine questions arising from the intervention of a third party or the occurrence or the revelation of a new fact that does not the organization of insolvency opposed to sellers to justify the change of action so that such companies were in bankruptcy proceedings at first instance;

1) while the victim of a fraud can indiscriminately seek the cancellation of the contract tainted by fraud and also ask if any, compensation for his injury or simply to seek compensation for his loss on the basis tort , in holding that the action of Mr. Plessis for invalidation of the disputed sales for fraud and the action for damages against the sellers on the same basis were distinct, the Court of Appeal violated Article 1116 of the Code Civil;

2) While the parties may explain the claims on appeal that were virtually included in those subject to trial court and add applications that are accessory, the consequence or the complement, that the action for damages Pure fraud is a tort is virtually included in the action for nullity of agreements on the same basis, that in deciding to the contrary, the Court of Appeal violated Article 566 of the New Code of Civil Procedure;

3) THEN any possibility of the claims are not new when they tend the same purposes as those submitted to the trial judge, that the invalidity action for fraud and the damages on the same basis tend to penalize contractual consequences of disloyalty to the author of the fraud, in holding that the claims were distinct, the Court of Appeal violated Article 565 of the New Code of Civil Procedure.

THIRD SUBMISSION OF APPEALS

It complains that the judgment of Mr. PLESSIS HAVE dismissed his action for damages against Master GAS, editor of the notary act of July 6, 1989;

Me on the grounds that GAS has occurred after the conclusion of the sale of shares of SCI ERRERA and goodwill in which the damage alleged finds its sole cause, which already bound definitively by the signing parties, in the presence of a real estate agency, the Memorandum of Understanding of May 26, 1989, the parties themselves by that date back to their final agreement on the sale of the business itself rather than the sale of shares HOTEL SARL Le Gallienne by giving an interpretative nature to the Convention of July 6, 1989 stating the real purpose of that assignment;

that the Convention of July 6, 1989, written by me GAS, had, on the latter or on its other provisions relating to the provision early, even retroactively from 1 July 1989, and its terms, the Mr PLESSIS funds, no impact on the actual conclusion of final divestments already;

GAS was then that I am not have to intervene in the preparation of the deed;

It follows from these considerations and any breach of duty to the prejudice of the Board can not be attributed to him by Mr. Plessis;

that the application for a declaration of liability and compensation will therefore also rejected;

1 °), while the notary who participated in the drafting of bills of sale is required to have a consultancy designed to ensure the validity and effectiveness of actions to which it has supported, that Mr. GAS, notary Editor of the Act under private agreement of sale and the walls of the business of the hotel was to verify administrative authorization for opening and operating of that hotel as well as the reality of his classification as “two stars”; However in saying that the lawyer did not incur liability on the grounds that an agreement had already been reached May 26, 1989 between the parties for the sale of the walls and goodwill of the hotel, the Court of Appeal violated Article 1382 of the Civil Code;

2 °), while the notary must ensure the validity and effectiveness of the acts specified shall assist, should have invited vendors to regularize the administrative situation of the hotel whose operation was impossible in the absence of authorization to open, believing that no fault had been committed by me GAS, on the grounds that agreement had been reached between the parties for the sale of a hotel, the Court of Appeal has violated Article 1382 Civil Code.

THE COURT

The second plea, the following appended:

Whereas, having found that demand in the first instance sought to annul the sales, the Court of Appeal had correctly held that the new claims on appeal and seeking a reduction of the price and the alternative to the allocation of damages virtually not included in the application submitted to the trial court and did not tend to the same purpose;

Hence it follows that the appeal is unfounded;

But on the first ground:

See section 1116 of the Civil Code;

Whereas, according to the judgment (Aix, May 20, 1998), that, in two acts, received by Mr. Gas, notary, on 26 May and 6 July 1989, the real estate company Errera (SCI) has sold a building in use of hotel and Mr Plessis Hotel Le Galliéni society (society) the business operated in this building to the same recipient, that a previous decision to allow the request of the SCI and the company repetition of assignments, Mr. Plessis has assigned the annulment of sales fraud, he also called for the conviction of Mr. Gas to pay him damages, and appellate Mr. Plessis has maintained its claim in the alternative and asked principal reduction of the price and the alternative allocation of damages;

Whereas Mr. Plessis to dismiss its application for annulment for fraud, the decision holds that the conditions for such a cancellation does not exist as to the complaints put forward by Mr. Plessis because of the inexcusable error of which he claims to have suffered, ignorance of the unauthorized use of openness and non-compliance with safety rules is not admissible on his part while he had a special obligation to learn given the professional Operation and basic checks to the sellers would have revealed the exact administrative situation of the institution;

That in so ruling, for reasons that do not exclude the existence of a willful reluctance and while such a willful reluctance, if established, always makes excusable induced error, the court of Appeal violated the text referred to above;

And the third way:

Given the article 1382 of the Civil Code;

Whereas Mr. Plessis to dismiss its claim against the lawyer, the decision notes that Mr. Gas has occurred after the conclusion of assignments that linked definitively parties by signing an agreement of 26 May 1989 and the Convention of July 6, 1989, written by Mr. Gas, had no impact on the conclusion of final divestments already;

By so holding, while the lawyer involved in the drafting of bills of sale is required to have a consultancy designed to ensure the validity and effectiveness of actions to which it has supported, the court of Appeal violated the text referred to above;

FOR THESE REASONS:

Quashed, except in that it declared inadmissible on appeal as new claims for price reductions and sales subsidiary formed for compensation on various grounds undertaken by Mr. Plessis to replace, in the main of the application initial decision of the May 20, 1998, between the parties, the Court of Appeal of Aix-en-Provence; shall, therefore, as to what the cause and the parties in the state where they were before the judgment and to be granted, the returns to the Court of Appeal of Nîmes;

Mr. Gas condemns the expense;

Having regard to Article 700 of the new Code of Civil Procedure, Gas condemns Mr. Plessis to be paid to spouses the sum of 12,000 francs;

Having regard to Article 700 of the new Code of Civil Procedure, rejected the request of Mr. Gas;

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 as a result of the partially broken off;

On the report of Mr. Pronier, Commissioner of the observations of SCP Ghestin, lawyer husband of Plessis, the CPS and Bachellier Potier de la Varde, lawyer of the company The Hotel Gallieni, CPS Boré, Xavier and boron, Counsel for Mr. Gas, the conclusions of Mr. Sodini, General Counsel, Ms. FOSSEREAU, Councillor doyenfaisant chairman.


UBLICATION: Bulletin No. III 2001 p. 20 17 The contested decision: Court of Appeal of Aix-en-Provence, 1998-05-20

Precedents: IN THE SAME DIRECTION: Civil Division 3, 1974-10-02, Bulletin 1974, III, No. 330 (1 and 2), p. 251 (rejection), and cases cited. Codes cited: Civil Code 1116, 1382.

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