obs J. Mestre, RTD Civ. 1995.879

Supreme Court of Appeal
Civil Division 3

Public hearing on February 1, 1995 Rejection.

Appeal No.: 92-16729
Published in the Newsletter Chair: Mr. Beauvois. Rapporteur: Mr. Pronier. Attorney General: Mr. Baechlin. Lawyers: M. Blondel, CPA Ghestin.

The unique way:

Whereas, according to the judgment (Montpellier, April 30, 1992), that under a private act of April 8, 1988, spouses Bolorinos sold a property to Mrs. Hays, Mrs. Hays refused to legalize the sale on the grounds she had heard in purchasing property in one piece so that it contained plots owned by others and was crossed by a highway, the couple Bolorinos have summoned resolution, Ms. Hays asked the counterclaim delivery of the resolution to harm vendors and, alternatively, the invalidity of the act for error vitiating his consent;

Whereas the spouses Bolorinos criticize the decision to cancel the private agreement, then, by mode, 1 ° it is not the result of the writings of the appellant or those vendors may have been invoked the notion of singular “error-obstacle” generating a legal framework, in holding office for such a mistake without causing open debate as to what the appellate court violates Article 16 of the new Code of Civil Procedure, 2 the act under private signature of April 8, 1988 reported very clearly from the sale of property in kind of wood, heath and fruit and a house built on ancient ruins to a total capacity of 53 hectares, 73 ares and 89 centiares, believing that to retain a mistake to characterize obstacle-the fact that at the time of signing the deed the buyer was in possession of a plan said to have been established by the agent and the seller may have been raised in 1975 at a time when those sellers wanted to acquire the property, plan incomplete and “fragmented” in that it does “not represent all the property, purpose of the proposed sale “, is further noted that the plan gives the impression of a home in one piece, lined country road without a plot belonging to third parties included, however, that many parcels not included in the plan were colored included within the project and the configuration of all sales of the plan differed colored: the existence of plots included belonging to others, there is a rural road through the property, the appellate court does not characterize the complex notion strict interpretation of “error-obstacle” within the meaning of section 1110 of the Civil Code as interpreted and thus deprives its order for a legal basis under that text, all of Article 1108 of the Code; 3 that the appellate court does not find that the plan would be paid part of the contract entered, that the holding, however, not to rule on a possible fraud, but the existence of an “error obstacle “, the appellate court still denies its ruling as a legal basis under Articles 1108 and 1110 of the Civil Code; 4 ° in any event, as is a private act very clear about the capacity Property sold in the state of a very slight gap between the capacity as stated in the promise of sale indenture worth selling and draft deed, it was for the Court of Appeal s’ speak on the question, for there was the real issue, if in the common intention of the parties including the buyer, is to acquire a property from a single source that is not crossed by a rural road was substantial or not within the meaning of section 1110 of the Civil Code, that leaving unanswered the central point, the court of appeal deprives its order for a legal basis under Article 1110 of the Civil Code and ignores his office , thus violating Article 12 of the new Code of Civil Procedure 5 ° as appellate judges, which are to be borne by the purchaser, a failure due to its light could not, as they did, retain an obstacle error when the breach was likely to affect the error and it is assumed that if the fault is retained a certain gravity, the author can not, under any circumstances, get in a this context any economic or social benefit, namely the delivery of the invalidity of a deed of sale, thus, stop, that holds an error attributable to the purchaser and is still entitled to its application canceling a sale without qualifying the fault of the purchaser continues to deprive its ruling as a legal basis under Articles 12 of the new Code of Civil Procedure, 1109 and 1110 of the Civil Code; 

But having waited noted that the private agreement was for a property in Wood-land, fruit trees and a house built on ancient ruins and found that if the draft deed plots determined that the seller intends to see included in the sale, colored and annotated plan given to the buyer at the time of the talks contained significant differences, some plots are listed wrongly as belonging to vendors, others as having been purchased and another as pending purchase and gave the impression of a home in one piece, lined country road without a plot belonging to third parties included, the Court of Appeal, which concluded that the evidence was reported of that the parties had not given their will on the same subject, has, without having to conduct a research findings made ​​inoperative and without violating the principle of contradiction, legally justified its decision; 


Dismiss the appeal.

Publication: Bulletin No. III 1995 p. 36 23
The contested decision: Court of Appeal of Montpellier, 1992-04-30


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