Bibliography doctrinal group of contracts

Supreme Court of Appeal
Civil Division 1

Public hearing on July 1, 1997 Partial Cassation.

Appeal No.: 95-15642
Published in the Newsletter Chair: Mr. Lemontey. Rapporteur: Mr. Chartier. Attorney General: Mr. Roehrich. Counsel: CPS Nicolay and Lanouvelle.

Whereas, by deed dated October 27, 1986, Mr. Laborie has acquired a business of broadcasting, known as “Radio Chasselas” and that, for a second act of the same day and before the same notary , MM. Sainte-Marie, Dufoir, Samzun and Mrs. Gautier to human society that is Unofi credit, lent to Mr. Laborie the sum of 150,000 francs, the loan included a pledge of the land conveyed, and by a mortgage bond Desmons M., since deceased, and his daughter, wife of Mr. Laborie, the sale of the fund has been canceled; Mr. Laborie has stopped the payment of maturity of the loan that creditors who then continued the sale of seized of real estate collateral, Ms. Laborie was opposed to command, that the contested decision found that the deeds of sale and loan are interrelated, and that the mortgage bond is lapsed due to the cancellation selling, delivering accordingly the nullity of foreclosure proceedings;

The first plea:

Whereas the company Unofi credit, Mr. Samzun, Dufoir M., and M. Sainte-Marie, complain that the judgment and have found then, in a way that the cause of the obligation of the borrower resides in the delivery of loan funds, the loan may be declared void for lack of good cause if he was to finance the purchase is not delivered or if the sale is settled or withdrawn, and the court of Appeal, which stated that the contract of sale of the broadcasting and the loan agreement, signed by both Mr. Laborie, were both caused by the delivery of the thing sold and the loan was void as a result of the cancellation of the sale, has violated Article 1131 of the Civil Code;

But whereas it is in the exercise of its sovereign power that the Court of Appeal found that the two bills of sale and loan that had been passed on the same day, before the same notary, were interrelated, and concluded that the parties understood the existence of the loan subject to the completion of the sale for which it was concluded, so that both contracts were responding to a single cause, it has retained properly right, not that the obligation of the borrower lacked cause, but cancellation of the contract of sale had resulted in the lapse of the loan;

But on the second plea:

Having regard to Article 2012 of the Civil Code;

Whereas until the parties have not been called into the state prior to the conclusion of their contract canceled, the inherent obligation to repay the loan agreement remains valid;

Whereas, to say void of foreclosure proceedings and order the release of the mortgage, the Court of Appeal held that the mortgage bond, having been given to meet the sole cause of the two contracts, is lapsed, and that is critical, while the obligation to return inherent in the loan agreement remains valid canceled, the deposit in respect of which the loan was still as this obligation is not extinguished, the Court of Appeal violated the text referred to above;


Quashed, but only in what he said that the mortgage bond is lapsed, the prosecution said zero input, and ordered release mortgage, the decision of April 3, 1995, between the parties, the Court of Appeal of Toulouse; shall, therefore, as to what the cause and the parties in the state they were before the judgment and to be granted, the returns to the Court of Appeal of Toulouse, different composition.

Publication: Bulletin 1997 I No. 224 p. 150
Dalloz, 1998-01-22, No. 3, p. 32, note L. Aynes. Directory of Notaries Defrénois, 1997-11-15, No. 21, p. 1251, note L. Aynes.
Impugned Decision: Court of Appeal of Toulouse, 1995-04-03

Precedents: A CLOSER: (1). Civil Division 1, 1996-10-01, Bulletin 1996, I, No. 335, p. 235 (rejection), and the case cited. A CLOSER (2). Civil Division 1, 1992-05-25, Bulletin 1992, I, No. 154, p. 106 (rejection), and cases cited.



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