Business Contracts

Under Article 1163, paragraph 2, of the Civil Code, a sale must relate to a “determined” or “determinable” (identified or identifiable) object. Paragraph 3 adds that a thing is determinable when it can be “deduced from the agreement or by reference to the usages or previous relations of the parties, without the need for a new agreement”. This text is combined with Article 1583, which stipulates th …

Thing determined or capable of being determined

Under Article 1163, paragraph 2, of the Civil Code, a sale must relate to a “determined” or “determinable” (identified or identifiable) object. Paragraph 3 adds that a thing is determinable when it can be “deduced from the agreement or by reference to the usages or previous relations of the parties, without the need for a new agreement”. This text is combined with Article 1583, which stipulates that for a sale to be perfect, the parties must agree, in particular, on the thing. According to the traditional distinction, a thing can take the form of a unique good (corps certain) or a fungible good (bien fongible).

In the case of unique goods, the deed of sale must identify the thing. This description may appear in an exchange of correspondence concerning the sale of a real estate complex, which specifies the surface area of the store, the number of rooms in the apartment sold and their location . Similarly, the sale of a villa and a parcel of land to be detached from it relates to a unique thing when the minimum surface area of the latter and the designation of the land in question are specified in the deed . The description of the common parts of a condominium, which are the subject of a transfer without specific conditions by the general meeting of co-owners, inserted in the agenda and the deliberation, is sufficient to render the thing determinable and the sale perfect, even in the absence of a descriptive statement of division creating the new lot assigned co-ownership fees . In fact, the failure to draw up and publish condominium regulations does not prevent the sale of individualized condominium lots, provided there is no confusion with the lots of another co-owner . The solution may differ when the parties have established certain qualities as essential. In effect, the Court of Cassation has ruled that the failure to mention the extent and share of the common parts of a condominium, which constitutes an essential element of the agreement for the parties, prevents the sale from being considered complete in the absence of a sufficient determination of its subject matter . Lastly, a succinct identification of condominium lots acquired, given that they have not yet been built, and the absence of individualization of these lots in terms of the thousandths of co-ownership to which they correspond, since the descriptive inventory of division will not be drawn up until several months after the sale of the building lot, does not make it possible to determine the thing transferred . In certain cases, the law prescribes specific details for the purpose of determining the property. This is the case, in particular, for buildings to be constructed. The determination of the future property must comply with the conditions set out in Article L. 261-11 of the French Construction and Housing Code. 

In the case of things of a kind (choses de genre) i.e. which are interchangeable, determination can be made by indicating quantity, type, weight or location. A thing of a kind may nevertheless take the form of real estate. In effect, the sale of a plot of land, of a surface area mentioned in the deed, to be taken from a larger parcel determined between the parties, which provides in advance for the purchaser to choose the exact delimitation, concerns a determinable thing .

The sanction for non-determination of the thing in a sale is relative invalidity . Thus, a sales agreement that fails to specify the technical plan of the kitchen units to be installed, even though it has been approved by the purchaser and takes into account the configuration of the latter's kitchen, relates to an indeterminate thing and is liable to be declared invalid . More generally, an error, even an inexcusable one, concerning the very subject matter of the sale, more specifically the designation of the property sold, is an obstacle to the mutual consent of the parties and results in the cancellation of the sale .

Cass. 1re civ., 11 May 1965, LawLex202200000797JBJ.

Cass. 3e civ. 2nd July 1997, LawLex202200000795JB

Cass. 3e civ. 22 September 2010, LawLex202200000814JBJ.

Cass. 3e civ. 17 November 2010, LawLex202200000813JBJ.

Cass. 3e civ. 11 February 2009, LawLex202200000805JBJ.

Cass. 3e civ, 26 November 1986, LawLex202200000819JBJ.

Cass. 3e civ, 15 February 1984, LawLex202200000796JBJ; 17 July 1968, LawLex202200001065JBJ.

Cass. 1re civ, 3 March 2011, LawLex201500001304JBJ.

Cass. 3e civ. 16 December 2014, LawLex201500000422JBJ.

Business Contracts

12. Thing determined or capable of being determined

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

12. Thing determined or capable of being determined

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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au contenu exclusif Livv – juristes d’entreprise