Business Contracts

In principle, in accordance with Article 1168 of the Civil Code, in bilateral contracts, lack of equivalence of performance is not a cause of invalidity of the agreement, unless the law provides otherwise. Only in the case of the sale of real estate, fertilizers or the transfer of copyrights, does the legislator authorize the taking into account of an injurious price, which consists of a sort of m …

Injury for inadequate consideration (Lésion)

In principle, in accordance with Article 1168 of the Civil Code, in bilateral contracts, lack of equivalence of performance is not a cause of invalidity of the agreement, unless the law provides otherwise. Only in the case of the sale of real estate, fertilizers or the transfer of copyrights, does the legislator authorize the taking into account of an injurious price, which consists of a sort of mistake as to value. An action for rescission is expressly excluded for all sales that can only be executed by judicial authority .

Injury in the sale of real estate is governed by Articles 1674 et seq. of the Civil Code. This text is to be interpreted strictly. Consequently, a transfer of shares in a non-trading real estate undertaking cannot be rescinded for injury due to the movable nature of the shares . Similarly, the transferee of a notary's office cannot bring an action to reduce the price on the grounds of injury, since the ordinary civil law rules governing the sale of movable property do not allow for a revision of the price .

According to Article 1674, “if the seller has suffered injurious loss by more than seven twelfths in the price of a building, he has the right to request rescission of the sale, even if he has expressly renounced the right to request rescission in the agreement, and has declared that he will give the added value” . Article 1683 further specifies that “rescission for injury is not in favor of the buyer”. Consequently, only the seller may rely on it.

Article 1675 specifies that “to determine whether there is a loss of more than seven twelfths, the property must be appraised according to its condition and value at the time of the sale”. In the case of a sale which, according to the common intention of the seller and buyer, concerns a single, indivisible whole, the injury must be examined in the light of the overall price fixed by the deed of sale for the whole . In the case of a bilateral promise to sell, the injury must be assessed on the day of conclusion of the agreement, and not on the expiry of its term , even in the presence of a suspensive condition . On the other hand, in the case of a unilateral promise to sell, injury is assessed on the day the option is exercised .

Article 1676 stipulates that “the claim is no longer admissible after the expiry of two years from the date of the sale”. In the case of a sale subject to a suspensive condition, the two-year limitation period begins to run on the day the condition is implemented or waived . In the case of a unilateral promise to sell, the period starts to run on the day the option is exercised by the beneficiary of the promise . As a result, when a unilateral promise to sell ("promesse unilatérale de vente") stipulates that the option must be exercised within one month of the conditions precedent being implemented, unless the conditions are waived, the sale cannot be completed before this date . Similarly, where the parties to a unilateral promise to sell a building have made the perfect and definitive nature of the sale subject to the condition precedent of the signing of the deed of sale, the applicable period for bringing an action for rescission on grounds of lesion can only begin to run from the date of the deed of sale .

With regard to proof of the existence of an injurious loss, Article 1677 stipulates that it “may only be admitted by judgment, and only in cases where the facts put forward are sufficiently probable and serious to give rise to a presumption of injury”. The judgment which, in application of this provision, authorizes the plaintiff to prove the injury, is res judicata only in terms of the admissibility of the action, and not in terms of the existence of the injury . Under the terms of Article 1678, “this proof can only be made by a report from three experts, who will be required to draw up a single joint report, and to form a single opinion by a plurality of votes” on the existence of the injury.

Article 1681 states that “in the event that the action is admitted, the purchaser has the choice either to return the thing by withdrawing the price he has paid for it, or to keep the land by paying the supplement to the fair price, subject to deduction of one tenth of the total price”. The buyer is the only party entitled to propose an increase in price to prevent the sale from being rescinded, since the seller can only claim rescission of the sale if he invokes injury . When the buyer chooses to buy back the lesion, the fair price supplement he must pay must correspond, not to the market value of the property at the time it was sold, but to its real value at the time when this additional settlement must be made . The tenth that Article 1681 authorizes to be deducted is that of the total price, which results from the buyer's initial and additional payments .

With regard to the sale of fertilizers, the Law of 8 July 1907  provides for the mechanism of injury in favor of the buyer, and not the seller as in the case of the sale of real estate. Article 1 of this law stipulates that “the lesion of more than a quarter in the purchase of fertilizers, seeds and seedlings intended for agriculture, and substances intended for the feeding of farm animals, entitles the buyer to an action for a reduction in price and damages”. Article 2 adds that “this action must be brought, on pain of forfeiture, within a time-limit of forty days from delivery”.

In the case of assignment of an author's exploitation rights, injury is governed by Law No 57-298 of 11 March 1957 on literary and artistic property, codified in Article L. 131-5 of the Intellectual Property Code. This article stipulates that “in the event of a transfer of exploitation rights, when the author has suffered an injurious loss of more than seven twelfths due to an insufficient estimate of the proceeds from the work, he may request a revision of the price terms of the agreement”. However, such a claim can only be made where the work has been transferred for a fixed fee. In such cases, the injury is assessed in the light of the transferee's overall exploitation of the works of the author claiming to have been prejudiced.

Cass. 3rd civ. 9 April 1970, LawLex202200000120JBJ.

Cass. 3e civ, 24 February 1999, LawLex202200000123JBJ.

Cass, 3e civ, 11 December 1984, LawLex20220000000925JBJ.

Cass. 3e civ. 18 July 1972, LawLex202200000124JBJ.

Cass. 3e civ., 6 juin 2007, LawLex202200000923JBJ.

Cass, 1re civ., 7 June 1966, LawLex202200000127JBJ; Cass, 3e civ, 22 January 1970, LawLex202200000922JBJ.

Cass, 3e civ, 4 December 1973, LawLex202200000139JBJ.

As amended by Law No 79-595 of 13 July 1979.

Cass, 1re civ, 7 December 2004, LawLex202200000927JBJ.

Cass. 3rd civ., 30 April 2025, LawLex202500003575JBJ: according to which a price representing approximately one-fifth of the value of the building, as established by a panel of court-appointed experts, is not for that reason a nominal price.

Cass. 3rd civ., 3 November 2011, LawLex202200001005JBJ.

Cass, 3e civ, 20 février 1974, LawLex202200000121JBJ: in the presence of an agreement between the parties on the thing and the price, a bilateral promise of sale is equivalent to a sale, the term provided for in the agreement having the effect only of delaying its performance, so that the injury must be assessed on the date of conclusion of the promise agreement, and not on the expiry of the term corresponding to the death of the last surviving spouse.

Cass, 3rd civ, 30 March 2011, LawLex202200000926JBJ.

Cass. 3rd civ. 7 July 2010, LawLex202200000928JBJ, for a construction lease accompanied by a unilateral promise to sell conferring an option on the lessee at the end of the lease, the two agreements forming an indivisible whole.

Cass, 3rd civ., 16 November 2005, LawLex202200000125JBJ.

Cass. 3rd civ. 5 July 2011, LawLex202200001006JBJ; 29 March 2000, LawLex202200001007JBJ.

Business Contracts

24. Injury for inadequate consideration (Lésion)

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24. Injury for inadequate consideration (Lésion)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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