Supreme Court of Appeal
Civil Division 1

Public hearing on March 11, 2003 Partial Cassation.


Appeal No.: 99-12628
Published in the Newsletter Chair: Mr. Lemontey. Rapporteur: Mr Durieux. General Counsel: Ms. Small. Counsel: the PCS and Courjon Chaisemartin.

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


ON BEHALF OF THE FRENCH PEOPLE

THE COURT OF APPEALS, FIRST CIVIL DIVISION, made the following ruling:

Given the decision of 20 November 2001 confirming the interruption of the proceedings of the death of Charlotte X. .., .. Y. widow, which occurred July 17, 1999, and acts of service of pleadings to the heirs of it;

Waited until October 1981, Mr. Jean-Yves Y. .. took over the office of surveyor of his uncle, Jean Y. .., died June 18, 1981, that, by act of October 21, 1992, X. .. Charlotte, widow of John Y. .. has assigned M . .. Jean-Yves Y. payment of a sum of 629,956 francs, including representatives of the rent due for the business premises, and to set aside an IOU of 800,000 francs subscribed before a notary November 13, 1991, that the contested decision (Rennes, November 10, 1998), decided after expert, said void the act of November 13, 1991, sentenced Mr. Jean-Yves Y. .. payable to Charlotte X. .. the sum of 149,417 francs, with interest at the legal rate, in addition to compensation for occupation of 1200 francs per month from July 1996, and dismissed the other parts of their applications;

The second plea in its two branches:

Whereas Jean-Yves Y. .. complains that the judgment to have ordered to pay Charlotte X. .. various sums in respect of the occupation of business premises: 1) by making him carry the proof of the lack of obligation to pay compensation of occupation, so that the appellate court would reverse the burden of evidence, 2) without responding to its findings which establish that an agreement was reached between the parties to compensate for the occupation of the premises and was therefore liable for compensation;

But whereas in his later conclusions of Appeal, Mr. Jean-Yves Y. .. had recognized that there was promise of compensation for occupation accepted by both parties, it is therefore not entitled to argue before the Supreme Court a way contrary to his own writings;

But on the first plea in its third branch:

Having regard to Article 1131 of the Civil Code;

Whereas the false part of the case does not invalidate the obligation, but its reduction to the measurement of the fraction remaining;

Whereas, to declare void the whole act of November 13, 1991, the Court of Appeal states that Charlotte X. .. could be responsible for paying the sum paid to this act;

By so holding, as she had appropriated the findings of the expert which it was clear that the debt of Charlotte X. .. with respect to his nephew existed, even if it proved less than the sum for which it was committed, the Court of Appeal violated the text referred to above;

FOR THESE REASONS, and without any need to rule on the first two branches of the first plea:

Quashed, except the provisions relating to compensation of occupation, the decision of November 10, 1998, between the parties, the Court of Appeal of Rennes; shall, therefore, as to what the cause and the parties in the state they were before the judgment and to be granted, the returns before the Court of Appeal of Angers;

Condemns al X. .. 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 as a result of the partially broken off;

Well done and tried by the Court of Cassation, First Civil Chamber, and pronounced by the President in a public hearing on 11 March two thousand and three.

 



Publication: Bulletin 2003 I No. 67 p. 51 The contested decision: Court of Appeal of Rennes, 1998-11-10

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