SALE OF A DWELLING HOUSE

Estimatory ACTION ON THE BASIS OF VICE CACHE

Supreme Court of Appeal
Civil Division 3

Public hearing on September 27, 2000 Rejection


Appeal No.: 99-10297
titled Unreleased

FRENCH REPUBLIC


ON BEHALF OF THE FRENCH PEOPLE


ON BEHALF OF THE FRENCH PEOPLE

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

On appeal by:

1 / Joseph M. Vignolo,

2 / Corneoli Mrs. Charlotte, wife Vignolo,

The remaining both Joloreil, Domaine des Pins, route of Ciappa Castelane, 06500 Menton,

to quash a decision of 9 November 1998 by the Court of Appeal of Lyon (1 and 2 bedrooms) for the benefit of the real estate company (SCI) LIFL, civil society Monaco, headquartered Le Grand Large, Santarlani dock, 98000 Monaco (Principality of Monaco)

defendant to appeal;

The plaintiffs cite in support of their appeal, three grounds of appeal annexed to this Order;

THE COURT, in the public hearing on July 4, 2000, which were present: Miss Fossereau, senior adviser acting for the President, Mr. Villien, reporting judge, MM. Way, Cachelot, Martin, Ms. Lardet, counselors, Ms. Masson-Daum, Fossaert-Sabatier, Boulanger, counselors referendum, Mr. Guerin, General Counsel, Ms. Jacomy, Clerk of room;

On the report of Mr. Villien, counselor, observations of SCP Masse-Dessen, George and Thouvenin, lawyer husband Vignolo, of Mr. Cossa, a lawyer for the real estate company LIFL, the conclusions of M. Guerin, General Counsel, and after deliberating in accordance with law;

The first plea:

Whereas, according to the judgment (Lyon, November 9, 1998), after giving a preliminary Appeal (Civ. 3, January 15, 1997, No. 46 D), the real estate company LIFL (SCI), April 6, 1989 acquired spouse Vignolo a dwelling house that they had built and that the disorders were discovered after the sale, the buyer sued the seller for damages for his loss;

Whereas the spouses Vignolo criticize the decision to host this application on the basis of the warranty against latent defects, then, in a way, “the judge must decide the case according to the rules of law that are applicable in failing to consider whether, as the couple argued Vignolo, the responsibility of sellers could not be sought solely on the basis of the manufacturers warranty, which was prescribed, the subpoena was issued more than ten years after receipt of the work, inoperative for reasons that the purchaser had waived the application of the legal guarantee for manufacturers not base its action on the warranty against latent defects, and that there is uncertainty about the date Opening the site, the Court of Appeal violated Article 12 of the new Code of Civil Procedure, all items 2270 and 1792 of the Civil Code in their amended by the Act of January 3, 1967 “;

But having found that the expected reporting date the site was uncertain, the Court of Appeal, which had before conclusions spouse Vignolo, placing the matter on the sole ground of Article 1641 of the Civil Code was not required to consider whether the observed disorder could meet the legal guarantee of the manufacturers ;

Hence it follows that the appeal is unfounded;

The second plea:

Whereas the spouses Vignolo criticize the decision to condemn them to the cost of repairing the roof, then, in a way, “1 / it is for the buyer who has the action to establish estimatory the existence of a latent defect inherent in the thing prior or contemporaneous sale; that based solely on technical advice and sayings contained in an expert report, which was common ground that it was not contradictory, and by requiring sellers to prove otherwise, including the production of technical documents, the Court of Appeal reversed the burden of proof in violation of section 1315 of the Civil Code, 2 / guarantee hidden defects implies the existence of a defect prior to sale, in endorsing the conclusions of the expert irrespective of whether the absence of condensation during the ten years preceding the sale, confirmed by numerous testimonies-n establishment not-especially when, as the purchaser himself pointed out, the phenomenon should have necessarily (sic) occur from the time the couple owned Vignolo, the absence of latent defects due to a so- saying failure to act in the roof, the appellate court’s decision deprived of legal basis under Article 1641 of the Civil Code, 3 / that the judge can rule by way of affirmations stating that peremptorily would have been inoperative for many certifications made by the spouses in discussions Vignolo, without any analysis, even briefly, the documents which were submitted and the Court of Appeal disregarded the requirements of section 455 of the new Code of Civil Procedure “;

But having waited statement, enjoying sovereign coins submitted to it, that the findings of the expert, on the presence of traces of condensation in the rooms, and water in the panels of glass wool cover , from any failure of performance of the roof not visible in the purchase of the villa, and the bailiff of Justice of 24 January 1990, established the existence of a latent defect affecting the property sold and reducing its use as the cover was not insured certificates of neighbors or real estate agents are ineffective in this respect, the Court of Appeal, which was based on the report of an expert legal operations Vignolo which the husband had been called, and another document contradictorily debated, and was not required to conduct a research findings made ​​inoperative, or analyze the evidence that she decided to dismiss, could remember, without reversing the burden of proof, that the action estimatory brought by the SCI should be allowed;

Hence it follows that the appeal is unfounded;

The third plea:

Whereas the spouses Vignolo criticize the decision to remove the non-warranty against hidden defects inserted in the contract of sale, then, in a way, “1 / that the judge must in all circumstances, respect the principle of contradiction, even when based on a fact that is in debate; that neither the expert nor the parties had argued that situations of work did not include all of the coverage as provided in the project in July 1978, deducting only the quality of a professional seller fact that the parties had not invoked without first inviting them to explain, the Court of Appeal violated Articles 7 and 16 new Code of Civil Procedure, 2 / that judges can grant or deny applications before them without examining all the evidence submitted to them by the parties in support of their claims, stating emphatically that he was not shown that the purchaser would have had the quality of commercial property without considering let alone analyze its statutes and other documents from the special directory of civil societies of the Principality of Monaco concerning him, for the first time, paid to the debate, the Court of Appeal violated Article 1353 of the Civil Code, all the articles 455 and 563 of the new Code of Civil Procedure, 3 / the realtor, a real estate professional is deemed to have the professional seller and that therefore, even if the spouses had been Vignolo regarded as sales professionals, stating that the buyer, assuming realtor, was not a professional in the same specialty, the Court of Appeal violated Article 1643 of the Civil Code “;

But waiting has aving found, analyzing the pieces that were in the debate, including situations of the work done by Mr. Albin, Mr. Vignolo, mason, was a technician of the building that did not establish that the roof has was carried out by another contractor, and supremely noted that the SCI was not a professional in the same specialty, the Court of Appeal, which was not required to conduct a search for quality real estate dealer of this society, its findings made ​​inoperative, was able to deduce, without violating the principle of contradiction, that the disclaimer of warranty did not apply;

Hence it follows that the appeal is unfounded;

FOR THESE REASONS:

Dismiss the appeal;

Vignolo husband condemns the expense;

Having regard to Article 700 of the new Code of Civil Procedure, Vignolo condemns the husband to pay the real estate company LIFL the sum of 12,000 francs;

Having regard to Article 700 of the new Code of Civil Procedure, rejected the request of the spouses Vignolo;

Well done and tried by the Court of Cassation, Third Civil Division, and delivered at the public hearing on September 27 two miles by Miss Fossereau, in accordance with Article 452 of the new Code of Civil Procedure.



Contested decision: Court of Appeal of Lyon (1st and 2nd bedrooms) 1998-11-09
titrations

Posted on ខែមករា 11, 2012, in យុត្តិសាស្រ្ត. Bookmark the permalink. Comments Off on case 47.

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