Supreme Court of Appeal
Civil Division 3

Public hearing on April 24, 2003 Rejection.


Appeal No.: 01-17458
Published in the Newsletter Chair: Mr. Weber. Rapporteur: Mr. Villien. Attorney General: Mr. Bruntz. Lawyers: M. Balat, CPA Vier and Bartholomew, M. Odent The SCP Bore, Xavier and boron, the CPS Monod and Colin, Didier Parmentier and CPC, CPC Defrenois and Levis, CPA and Thomas-Raquin Benabent Mr. Foussard, CPA Celica, Blancpain and Soltner, CPA Coutard and Mayer, CPA Boulloche.

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


The unique way:

Whereas, according to the judgment (Paris, September 13, 2001), that al X. .. Y. .. and Z. .. acquired the company of Jean Bart Parking and Parking Company of Temple-Capon parking spaces intended for public use in a building built in the future state of completion, as a result of difficulties involved in the liquidation of certain players, and despite attempts at conciliation, the project could be completed in accordance with the original, the alleged error in the essential qualities of the thing sold, the purchasers sought the cancellation of the sale and payment of damages;

Whereas al X. .. Y. .. and Z. .. criticize the decision to reject applications for cancellation of sales contracts and limit the allocation of damages, then, by type:

1 / when the search for fiscal benefits of participating in the contract, the nullity of the agreement was incurred if this goal could not be reached, that, in their conclusions of Appeal, MX. . Y. .. and Miss Z. .. argued that the whole process of selling parking spaces in off plan was designed by the group JRH to allow buyers to “exploit the car enjoying the tax treatment of industrial and commercial profits (BIC ) after registration in the commercial and companies and to deduct from their taxable income a portion of the losses associated with the acquisition and operation of sites, believing that only an express stipulation of the sale contract could bring the benefit of the tax benefit part of the contract, however, that the parties’ willingness to take substantial element could be established by any means, including analyzing the economy of the Convention, the Court of Appeal violated Articles 1109 , 1110, 1116 and 1134 of the Civil Code;

2 / that judges may accept or reject the applications before them without examining all the evidence provided to them by the parties in support of their claims, that MX .. Y. ..and Miss Z. .. availed themselves in their written forensic report prepared by A. .., which found that the benefit of the tax treatment of BIC was the “cornerstone of the operation” that “the procedure proposed is essentially sitting on its tax benefits, sharply sculpted “and that” in this sense that investors are entitled to claim the tax system included in the assembly was part and therefore determinative of the decision to purchase “, that ‘stating that the possibility of benefiting from a favorable tax regime was not in this case a condition of the agreement, without analysis, even briefly, the forensic report of A. .., the Court of Appeal violated Article 455 of the new Code of Civil Procedure;

3 / that commercial advertising, when it accompanies the offers made to the public, is part of a contract that commits its author in regard to accepting, that in their conclusions of Appeal, MM. X. .. Y. .. and Miss Z. .. argued that the brochure advertising proposed by the group JRH insisted that the assembly proposed purchasers of parking spaces was designed to provide benefits of a fiscal, that merely assert that advertising leaflets published JRH by the group were not of a contractual nature to deduce the particulars of those documents could not be considered in analyzing the parties’ will, without specifying how these platelets are devoid of a contractual nature, the Court of Appeal violated Article 1134 of the Civil Code;

4 / stating that, to avoid the demands of buyers for the annulment of contracts for the sale of parking spaces, promised that the commercial could be implemented, although ancillary services such as washing, maintenance and mechanics can not be insured, which it was clear that the purchasers could not, in the absence of these services claim the benefit of the tax system of BIC, the Court of Appeal ruled by a unit inoperative, violating and Articles 1109, 1110, 1116 and 1134 of the Civil Code;

5 / the censorship that is sure to intervene on the head of the Judgement dismissing the buyers of their application for annulment of sale contracts and loan will, by implication and application of Article 625 the new Code of Civil Procedure, the Supreme Head of the Judgement dismissing the same for their action to the effect that all those involved in the operation, investment will be condemned to pay them each respectively, to as damages, amounts to 965,997 francs (265.29 euros 147) 757 854 francs (115 euros 534.10) and 965 997 francs (147 euros 265.29), and the cost of acquisition and debt and costs associated with their status as operators of parking;


But waiting has aving noted that al X. .. Y. .. and Z. .. did not demonstrate that the liability regime of business profits income from the operation of parking spaces would have been contractually agreed when they are sold, and held that the advertising leaflets produced were not of a contractual nature, the Court of Appeal, who, having examined the contract booking and sales, was not required to consider the findings of the forensic expert was able to deduce, apart from reasons superabundant on the possibility of setting out of commercial facilities, subject to a separate compensation, there was no reason for the cancellation of sales contracts, the error on a ground out in the contract purpose of it was not for lack of express agreement, a cause of nullity of the agreement, even if that reason would have been decisive;

Hence it follows that the appeal is unfounded;

FOR THESE REASONS:

Dismiss the appeal;

Condemns all the al X. .. Y. .. and Z. .. the expense;

Having regard to Article 700 of the new Code of Civil Procedure, condemns al X. .. Y. .. and Z. .. payable to MB .. the sum of 1900 euros, the company of Jean Bart parking the sum of 1900 euros, to Mrs. C. .. .. and MD, in his capacity together the sum of 1900 euros, the National Bank of Paris Intercontinental (IPDL) the sum of 1900 euros, to Mr. Giacinto the sum of 1900 euros, the company WHBL 7 the sum of 1900 euros, the company Entenial the sum of 1900 euros, and society Jusot, Claris, Giray and me .. together, the sum of 1900 euros, the sum of the MAF 1 000, Mr. F. .. and society BM and associated together, the sum of 1000 euros;


Having regard to Article 700 of the new Code of Civil Procedure, rejects the claims of al X. .. Y. .. and Z. .. ;

Well done and tried by the Court of Cassation, Third Civil Chamber, and pronounced by the President in a public hearing on 24 April two thousand and three.



Publication: Bulletin No. III 2003 p. 82 75
Quarterly Review of Civil Law, October-December 2003, No. 4, p. 723-725, notes Pierre-Yves Gauthier. The Dalloz, 2004-02-19, No. 7, jurisprudence, p. 450-454, note Sandrine Chassagnard.
Impugned Decision: Court of Appeal of Paris, 2001-09-13

Precedents: A CLOSER: Civil Division 1, 2001-02-13, Bulletin 2001, I, No. 31, p. 20 (rejection).


Supreme Court of Appeal
Civil Division 1

Public hearing on February 13, 2001 Rejection.


Appeal No.: 98-15092
Published in the Newsletter Chair: Mr. Lemontey. Rapporteur: Mr. Aubert. Attorney General: Mr. Roehrich. Lawyers: CPS Vier and Bartholomew, CPA Boré, Xavier and boron, CPA The Bret Desaché-and Laugier.

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


Whereas, by an Act passed November 20, 1981 in the study of M. Geoffroy d’Assy, lawyer, Alain Lucas acquired the limited company asset management (SAGEP), lots of real property condominium renovation, Mr. Lucas has been, subsequently, various tax adjustments, that, arguing that he had purchased that property for tax benefits that could not be obtained, it has, 1992, assigned the SAGEP, now in receivership and represented by Villa, liquidator, the condominium residence of the Cloister St. Martin, and M. Geoffroy d’Assy, for declaration of invalidity or error resolution sale, and for damages and that the order confirming attacked (Orleans, March 23, 1998) has dismissed his claims;

The first plea in its two branches:

Whereas Mr. Lucas alleges that the decision of having thus spoken, then, by type:

1 ° by refusing to cancel the sale due to lack of achievement of the tax exemption, although results of the findings of stopping the cause of the commitment of Mr. Lucas was the desire to achieve tax savings and the SAGEP knew the decisive reason, the Court of Appeal disregarded the consequences of its findings and violated Article 1110 of the Civil Code;

2 ° in not looking like he was asked if in his capacity as a real estate professional specializing in tax exemption, the SAGEP was not supposed to know and control perfectly the requirements of the law and Malraux n ‘ had not breached its duty to advise the court of appeal would have deprived its decision of a legal basis under Article 1116 of the Civil Code;

But HEREAS, first, that the error on a ground of the contract outside the object of it is not a cause of nullity of the agreement, even if that ground was crucial and that c ‘ is therefore right that the decision states that the lack of satisfaction to know the pattern seen in search of advantages of tax-even though that ground was known to the other party could result in cancellation of the contract absence of an express provision that would have brought this ground part of the contract in making it a condition of this contract, then, having noted that in 1983, the SAGEP could believe in the appropriateness of the transaction with the requirements of the law Malraux, because he was not seen demonstrated at the time of the sale the company was aware of the risk of not receiving the tax benefits of this law, the Court of Appeal , for these reasons alone, legally justified its decision with regard to section 1116 of the Civil Code , that the plea is therefore unfounded in all its branches;

The second plea: (Publication no interest);

And on the third plea in its two branches: (Publication no interest);

FOR THESE REASONS:

Dismiss the appeal.



Publication: Bulletin 2001 I No. 31 p. 20 The contested decision: Court of Appeal of Orleans 1998-03-23

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