Business Contracts

Is the immediate transfer of ownership as set out in Article 1583 of the Civil Code enforceable against third parties? The answer may depend on whether the third party  is a creditor of the parties or an absolute third party, but also and above all on whether the sale is immovable or movable, since enforceability presupposes that the third party is aware of it.

A conflict may then arise between two successors in title who, as purchasers, have received the same property from the same originator, by means of two sales. In the case of a dual sale, the seller's successors in title must be able to determine the point at which the transfer of ownership is enforceable against them: the right in rem was duly transferred to them if the seller was still the owner when he granted them the right to the property, otherwise the sale was implemented a non domino. This conflict is resolved by the application of a legal mechanism which depends on the nature of the property, according to whether the sale concerns real estate, movable property or intangible property.

While the managing agent, the legal representative of the seller of a property, does not constitute a third party (Cass. com., 17 February 1998, LawLex202200002722JB), the body of creditors does, for the purposes of Article 1328 (now Art. 1377) of the Civil Code (Cass. com., 2 March 1993, LawLex202200002714JBJ, which holds that a private deed cannot be enforced against it if it does not have an authenticated date ).

145. Enforceability against third parties