v. generally DOL

Supreme Court
Commercial Division

Public hearing on January 15, 2002 Cassation.


Appeal No.: 99-18774
Published in the Newsletter Chair: Mr. Dumas. Rapporteur: Ms. Mouillard. Attorney General: Mr. Viricel. Lawyers: CPS Waquet, Farge and Hazan, CPA Parmentier and Didier.

FRENCH REPUBLIC
ON BEHALF OF THE FRENCH PEOPLE
It is clear from the judgment that Ms. Garneau, who had acquired 17 October 1990 the business of pharmacy of Mr. Latour has assigned it in payment of damages for fraud;

The first plea, made its first branch:

Given the article 1382 of the Civil Code;

Whereas, to deny the request, the decision holds that Ms. Garneau, alleging misconduct from the seller, not committed prior to the contract of sale and is not external to the agreement, is unfounded, pursuant the principle of non-cumulative, to invoke the rules of tort;

By so holding, while the victim of fraudulent tactics may exercise, in addition to an action for annulment of the contract, a tort action for their author for damages it suffered,the Court of Appeal violated the text referred to above;

And the second way:

Given the article 14 of the Act of June 29, 1935, became the Section L. 141-4 of the Commercial Code , all the article 1382 of the Civil Code;

Whereas the decision still holds that Ms. Garneau, claiming a fraud that would be formed by switching on the requirements for the formation of the contract of sale of the business under Article 13 of the Act of June 29, 1935, may base his claim on this law, Article 14 provides that the activities resulting from Article 13 must be brought by the purchaser within the period of one year from the date of taking possession, that noting that this period had been exceeded, he said action, in that it is based on fraud, inadmissible as late;

By so holding, while the special provisions of Article 13 of the Act of June 29, 1935, became the Section L. 141-3 of the Commercial Code , shall not preclude the purchaser of a business to seek the legal liability of the seller, including fraud, even if the alleged maneuvers would relate to the inaccuracy of the statements brought to the required action , the Court of Appeal violated the above documents;

For these reasons, and without any need to rule on the other complaints:

Quashed, but its provisions only rejected the request of Ms. Garneau and having to pay the costs, the decision of May 27, 1999, between the parties, the Court of Appeal of Grenoble; calls accordingly 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 Lyon.



Publication: Bulletin No. IV 2002 p. 11 11 The contested decision: Court of Appeal of Grenoble, 1999-05-27

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