Business Contracts

The principle of consensus (mutual consent) is applied in matters of sale, pursuant to Article 1583 of the Civil Code . The mere exchange of consent by the parties to the bilateral promise of sale concerning the subject matter and the price is in principle sufficient to conclude the pre-contract of a bilateral promise of sale, and to constitute the formation of the contract of sale, bearing in min …

Mutual consent

The principle of consensus (mutual consent) is applied in matters of sale, pursuant to Article 1583 of the Civil Code . The mere exchange of consent by the parties to the bilateral promise of sale concerning the subject matter and the price is in principle sufficient to conclude the pre-contract of a bilateral promise of sale, and to constitute the formation of the contract of sale, bearing in mind that the formation of the contract of sale in principle entails the transfer of ownership  (but also of custody and risks). Thus, according to the Court of Cassation, a court of appeal cannot find that the two parties had agreed on the object and the price, and hold that the transfer of ownership was postponed by the two parties to the regularization of their undertaking by notarial deed, without citing other circumstances likely to establish that the parties had intended to delay the coming into existence of their obligation to sell and buy until that date .

However, as the rule stipulated in Article 1583 is a suppletive one, the parties may include provisions derogating from its provisions in the pre-contract. They may thus delay the transfer of ownership, but such a delay does not prevent the formation of the contract, unless the parties expressly stipulate the contrary. Thus, a court of appeal cannot hold that by providing in the contested promise that the sale would only take definitive effect on the date on which it was received by the designated notary, the parties intended to reserve the transfer of ownership to the beneficiary on the date of signature of the notarial deed, without specifying whether the formality of a notarial deed was necessary to bind seller and buyer to the final agreement .

Similarly, a promise of sale is deemed to be a binding sale, even when the parties have agreed on the subject matter and the price, but disagree on subsidiary points  , unless it is clear from the circumstances or the stipulations of the promise that the parties wished to delay the formation of the sales agreement until the terms and conditions have been determined . Specific performance ( of the sale is therefore possible when the parties have agreed on the object and the price and have not expressed their wish to confirm it by notarial deed as a constitutive element of their consensus , or when no circumstance is such as to demonstrate that they had confirmed it by notarial deed as a constitutive element of their consent . On the other hand, a bilateral promise to sell is only valid on the day the notarial deed is signed, when all the documents signed, either separately or simultaneously, by the parties refer only to a sale on the day the notarial deed is signed, and merely to their intentions to buy and sell . Similarly, a bilateral promise of sale which made the completion of the sale subject to the purchaser's payment of the full price in cash, payable no later than the signing of the notarial deed, becomes invalid if the purchaser is unable to do so .

Art. 1583 Civil Code: “[the sale] is complete between the parties, and ownership is automatically acquired by the buyer from the seller, as soon as the thing and the price have been agreed, even if the thing has not yet been delivered or the price paid”.

In the absence, in the bilateral promise of sale, of a clause deferring the transfer of ownership, the transfer is implemented on the date of the promise, See Cass. com., 4 May 1993, LawLex202300004785JBJ.

Cass. 3e civ, 2 May 1968, LawLex202300005945JBJ.

Cass. 3e civ. 5 January 1983, LawLex202100006437JBJ. See, in the same vein, Cass. 3e civ, 17 July 1991, LawLex202100006436JBJ, finding that a bilateral promise of sale, which provides for a term for the signature of the notarial deed to which the transfer of ownership and enjoyment of the land are subject, cannot be declared null and void, since it was not examined whether exceeding the term was sanctioned by nullity and whether the parties wished the notarial deed to be necessary in order to commit them to all the obligations of the contact of sale.

Cass. 3e civ., 11 juin 1992, LawLex202100006120JBJ, holding that a promise to sell a plot of land is bilateral in nature and binding as a sale, when the beneficiary of the promise has accepted the offer on the day of issue, and there has been agreement between the parties on the property and the price, even if implementation by deed is postponed to a later date or made the responsibility of an intermediary purchaser.

Cass. 3e civ, 14 January 1987, LawLex202300003149JBJ, holding that a promise to sell is binding when the parties have agreed on the thing and the price, and that failure to reach a final agreement on the ancillary elements of the sale cannot prevent the sale from being completed, unless the parties wished to delay the formation of the contract until those terms had been fixed, so that the sale in question must be considered complete, even if the parties had planned for the deed to be notarized, since it does not follow from the provisions of the bilateral promise in question, nor from the circumstances, that the promisor and the beneficiary, who had agreed on the subject matter and the price, wished to make this ancillary term a defining element of their consent.

Cass. 3e civ, 20 December 1994, LawLex202100006399JBJ.

Cass. 3e civ, 28 May 1997, LawLex202100006435JBJ; 10 September 2013, LawLex202300004675JBJ, noting that the bilateral promise of sale concluded between the parties is deemed to be a binding sale, insofar as it does not appear from the agreement that the parties have set up the formality of notarial certification as a condition for the formation of the sale.

Cass. 3e civ, 17 July 1997, LawLex202200002072JBJ.

Cass. 3e civ, 25 January 2011, LawLex202300004677JBJ.

Business Contracts

92. Mutual consent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

92. Mutual consent

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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