Cour de cassation

The Court:

On the purchaser’s application for review, based on violation of articles 1108, 1109, 1583, 1602 Code civil and misapplication of articles 1650 and 1651:

Given that while article 1583 Code civil provides that a sale is perfect between the parties as soon as they have agreed on the thing and the price; the agreement is not actually finalised until the conditions under which the price is to be paid are agreed, yet if the purchaser states the price he is ready to pay without indicating any particular method of payment, he is taken to fall within article 1651 Code civil, according to which, in the absence of any specific stipulation, the price is payable at the time and place of delivery, that is, in cash, unless the seller has reserved the right to delay delivery; given that thus if the price is offered by the purchaser in a simple and unqualified manner it cannot be alleged that the contract is in suspense on the ground that the mode of payment has not been explicitly agreed;

Given that the decision below states that after some inconclusive dealings between Cibiel and Dieulafoy regarding the sale of a house in Toulouse belonging to the latter, Lozes, a notary, acting in the name and as agent of the Dieulafoys, wrote to Cibiel on 17 October 1883 asking if he was still interested and at what price, and that by letter of 24 October Cibiel replied that he could manage 125,000 francs; that by letter of 29 October the notary then informed Cibiel that the price was accepted and that it remained only to effect the conveyance, a message repeated by confirmatory letter of 12 November which Cibiel received without protest, only to assert on 6 January of the following year that he was not bound;

Given that the Court was free to determine these matters conclusively, and that in deciding that a sale was effected between the parties, the Court’s application of articles 1583 and 1651 Code civil was quite correct and violated no other provision of the Code;

For these reasons DISMISSES the application for review.

Subsequent developments

This note on subsequent developments reflects the legal situation as of January 2006.

Chambre des requêtes, 1 December 1885: A sale is complete between a seller and a purchaser as soon as they have agreed on the thing and the price, the absence of agreement on the accessory elements of the contract not being capable of preventing its formation, unless the parties had agreed to defer this until the determination of these modalities. Case law abandoned.

As is observed by the authors quoted ("Les grands arrêts de la jurisprudence civile" (Leading judgments in civil case law)) "the reversal of the case law effected by the judgments of the Assemblée plénière of the 1 December 1995 is likely to disturb [this] solution. The agreement of the parties on the price no longer being necessary, unless an exception applies, for the validity of the contract, the idea of the essential element becomes no longer identified with the conditions for validity of the contract, but with its structural elements. It is the definition itself of the contract which is called in question". According to these judgments, in fact, "when a contract anticipates the conclusion of later contracts, the non-determination of the price of these contracts in the initial agreement does not, except in the case of special legal arrangements, affect its validity; and abuse in the fixing of the price only gives rise to annulment or indemnification¿. Consequently (J Ghestin, JCP 1996, II no 22565), "the new case law seems now to require a clear distinction to be made between structural absence of price, and the situation in which the contract of sale itself permits one of the parties to have an effect on the determination of a price deferred to at a later date.

Translation by Mr Raymond Youngs

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