Supreme Court of Appeal
Civil Division 3

Public hearing on November 13, 2003 Rejection


Appeal No.: 00-22309
Published in the Newsletter Chair: Mr. WEBER

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:

Whereas, according to the judgment (Paris, September 27, 2000), the spouses X. .. have acquired MY .., realtor, a dwelling house which presented serious disorders due to defects in the structure and coverage, they have assigned Y. .. payment of the cost of repairs and damages;


that it sought the guarantee of its professional liability insurer, insurance mutuals Seine-et-Marne (MSM);

The first plea:

Whereas Y. .. complains that the decision to sentence him to pay damages to the husband X. .. then by type:

1) that under Article 1645 of the Civil Code, only the seller is required to know the defects of the thing, is obligated to pay the buyer damages in excess of the price received, as The realtor, real estate professional, is not required to know the defects in design and implementation of the structure and coverage of a building whose construction he has not himself participated and he has acquired by auction, which limits the investigation;

that merely note that Y. .. had sold a dwelling house the couple X. .. in his capacity as a property trader, the Court of Appeal concluded that he could not ignore the defects of the thing sold which he had to verify the status, but has failed to find disorders that the expert was described as difficult to detect, deprived of legal basis for its decision under the above provision;

2) that Y. .. that acquired by public auction June 25, 1993 the house sold April 8, 1994 the couple X. .., and, failing that, for him to be able, for a specific skill in carpentry, identify disorders affecting the roof as the body designated by the prospective purchaser had not identified himself, and failing that, again, for him to have inhabited the site personally and know them well, could not, in consideration of simply as a realtor that is not enough to have a technical skill than that of the agency required by the prospective purchaser, be ordered to pay damages – NTEREST, in the deciding However, the Court of Appeal violated Article 1645 Civil Code;


But given that having found that MY .. who is a realtor and had treated as such with the X. .. husband, the Court of Appeal, which was not required to conduct a research findings made inoperative and n ‘ was not requested, and concluded, correctly, that he could not, as a realtor, claim ignorance of the vices of the thing sold and had to compensate buyers for the damage which had resulted;

Hence it follows that the appeal is unfounded;

The second plea:

Whereas Y. .. complains that the decision to dismiss its warranty claim filed against the MSM for the conviction against him for the cost of repairing the property sold, then, by type:

1) that Y. .. argued in its submissions before the Court of Appeal, that the MSM had written to the insurance agent that she accepted his guarantee, that Y. .. produced a letter from the MSM, 28 April 1995 by which the insurer said: “After review of the contract,” accepts the guarantee in this case, in dismissing Y. .. its warranty claim made against its insurer, without explaining what he means followed that the MSM was committed to ensuring Y. .. for the loss in question, the Court of Appeal disregarded the requirements of section 455 of the Code of Civil Procedure;

2) the insurer reporting to Y. .. during the formation of the contract be “able to provide professional liability for all operations of purchase, sale, exchange, and all transactions emerging from the profession of realtor … only not included in this insurance under this policy the transactions subject to compulsory insurance of ten entrepreneurs or damage to the book “, the Court of Appeal, which found that Y. .. was treated as a realtor selling the property in question and, as such, he must know about the defects of the thing he had to verify the state, had to admit that the insurer ‘s was excluded from the guarantee that the insurance obligation ten contractors or damage to the structure, was required to cover the insured in respect of latent defects of the thing sold, in releasing its obligations to MSM guarantee, the Court of Appeal violated Article 1134 of the Civil Code;


3) that Y. .. having trained with the MSM called an insurance general liability to which are added custom conditions and special conditions setting out, without exclusion, the insured in respect of professional liability, is guaranteed “when engages or participates in transactions for the purchase, sale, exchange, lease, etc … ” the appellate court could not ignore the special conditions of the insurance policy and hold that section 2-7-44 of the general conditions of the policy excluded the warranty of the insurer for a full refund of the products, supplies, materials or equipment sold and for all costs involved in their rehabilitation; in so ruling and being determined by a clause of general conditions of the insurance policy that the special conditions negotiated between the parties, for s adapt to the nature of the activity of the insured had rejected the Court of Appeal violated Article 1134 of the Civil Code;

But having waited selected, correctly, that the conviction against Y. .. for the cost of repair of the building was not grounded in the rules of tort, contract or tort, but in the specific legal obligation to the seller to guarantee the purchaser against hidden defects of the thing sold, and having found that Section 1 “conditions customized” police “business casualty” signed by Y. .. guarantee it against the financial consequences of civil liability that might incur in the exercise of his professional activity because of the intangible damage caused to others, because of errors, omissions or negligence, the Court of Appeal , which was not required to conduct research on the contents of a letter on its findings that the police made inoperative, was able to deduce that the conviction that the guarantee was sought was foreign to the purpose of the insurance with the MSM;


Hence it follows that the appeal is unfounded;

FOR THESE REASONS:

Dismiss the appeal;

Condemns MY .. the expense;

Having regard to Article 700 of the new Code of Civil Procedure, condemns MY .. payable to Mutual of Seine-et-Marne, whose rights the company has regional mutual insurance, the sum of 1900 euros;

Well done and tried by the Court of Cassation, Third Civil Chamber, and pronounced by the President in a public hearing on 13 November two thousand and three.



Contested decision: Court of Appeal of Paris (19th Civil Division A) 2000-09-27

 

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