THE COURT OF APPEALS, THIRD CIVIL DIVISION.

March 29, 2000. Decision No. 528. Rejection.

Appeal No. 98-16741.

CIVIL BULLETIN – BULLETIN.

On the appeal of: 1 / Jean Claude Olie, remaining 96 Road Montrey, 69110 Saint-Foy-les-Lyon, 2 / Martine Olie, remaining 18 Road Montfleury Versoy (Switzerland) 3 ° / Catherine Olie, residing 42, rue de la Republique, 78100 Saint-Germain-en-Laye, 4 / Ms Paulet Marianson, residing 61, rue Jules Ferry, 78400 Chatou, to quash the decision of the 16 April 1998 by the Court of Appeal of Nîmes (1st Civil Chamber), for: 1 / the town of Nimes, in the person of its mayor in office domiciled in the City Hall of the municipality of Place City Hall, 30000 Nîmes, 2 / the SAEM equipment Nîmes Senim South, with headquarters City Hall, 30000 Nîmes, defendants in the appeal;

The plaintiffs cite in support of their appeal, a unique way of appeal annexed to this Order;

Medium produced by the CPS Guiguet Bachellier and Potier de la Varde, attorney for Advice for al Oli

Grounds of appeal

The way criticizes the judgment having declared inadmissible the application for rescission of the sale to injury;

The grounds that the al OLIE agree that the deed of sale March 23 and April 22, 1992 at a price of 1.35 million Francs is the exact translation of the will of the parties expressed in private deed dated prior of 28 October 1991 by which they promised to sell to the SENIM or any person or entity that would replace the building in question, stating the condition of exercise of the option on or before January 31, 1992, that it is undisputed that the Company has agreed SENIM the agreement to sell 15 December 1991 and has exercised the option Jan. 25, 1992 or within the time prescribed by private deed and regularly by registered letter with acknowledgment of receipt; that section 1676 provides that the application for rescission of sale due to injury is not admissible after the expiry of two years from the date of the sale, it is clear from the jurisprudence that the within two years from the date of the meeting of the minds, not the decision that establishes the existence of sale and that exception, he left the day of the signing of the deed if there is change in the subject of the sale between the two acts, and that therefore there is no change in the purpose of sale, SENIM have accepted the agreement to sell 15 December 1991, it no later than December 16, 1993 that the action for rescission should have been hired to be declared admissible;

While in case of unilateral promise of sale, the period of action for rescission of the sale to run from the date of injury the regulation of the sale by deed when the parties have agreed to make the completion of the sale for signature of this act, thus in this case where it was stipulated in the promise of October 28, 1991 the completion of the sale is made by notarial act, provided that the request is made by the recipient within three months, Court of Appeals, holding that the sale was perfect from the exercise of the option by SENIM in the absence of modification of the object of the sale between the promise and the deed, violated Articles 1134 , 1589 and 1676 of the Civil Code.

THE COURT, in the public hearing on February 23, 2000, attended by Mr. Beauvois, president, Pronier, Commissioner of the rapporteur, Ms Fossereau, MM. Boscheron, Toitot, Ms. Di Marino, M. Bourrelly, Ms. Stephan, MM. Peyrat, Guerrini, Dupertuys, Philippot, advisors, Mr. Baechlin, General Counsel, Ms. Jacomy, Clerk of room;

The unique way:

Whereas, according to the judgment (Nimes, April 16, 1998), that under an act of October 28, 1991, the al Olie promised to sell a parcel of land to the company Senim, with the price of 1.35 million francs; that society has accepted the promise Senim December 15, 1991, and has exercised the option Jan. 25, 1992, that the sale was reiterated by deed of March 23 and April 22, 1992, the company has sold the plot Senim through the price of 3,415,680 francs, on 1 March 1994, al Olie has assigned the company Senim for rescission of the sale to injury;

Whereas al Olie criticize the decision to declare inadmissible request, then, in a way, ‘in case of unilateral promise of sale, the period of action for rescission of the sale to run from the day injury the regulation of the sale by deed when the parties intended to make implementation of the sale to the signing of the act; thus in this case where it was stipulated in the promise of October 28, 1991 as the completion of the sale would be made ​​by notarial act, provided that the request is made ​​by the recipient within three months, the court of appeal, considering that the sale was perfect from the exercise of the option by Senim in the absence change the subject of the sale between the promise and the deed, violated Articles 1134, 1589 and 1676 of the Civil Code “;

But having waited exactly noted that the two-year period under section 1676  of the Civil Code from the date of the meeting of the minds and found that the company had exercised the option Senim January 25, 1992 and that there was no change in the subject of the sale between private deed worth and promise to sell the deed, the appellate court could infer that the action for rescission, the first committed March 1994, was delayed;

Hence it follows that the appeal is unfounded;

FOR THESE REASONS:

Dismiss the appeal;

Condemns al Olie expense;

Having regard to Article 700 of the new Code of Civil Procedure, condemns al Olie payable to the town of Nîmes the sum of 9000 francs.

On the report of Mr. Pronier, Commissioner of the observations of SCP Guiguet Bachellier and Potier de la Varde, counsel for al Olie, CPS Masse-Dessen, George and Thouvenin, lawyer for the town of Nimes, the findings Mr. Baechlin, General Counsel, and after deliberating in accordance with law; BEAUVOIS Mr. President.

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