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Court of Cassation, Commercial Chamber Application for Review No. 00-21620 Case Société Nancienne Varin Bernier v M. X and Mme. Y
19 November 2002
Translated by:
J. T. Brown
Professor B. S. Markesinis


In view of Article 1321 of the Civil Code ;

Given, according to the judgement under attack, that (1) by a notarised deed (“acte authentique”) dated 21 April 1991, Société Nancienne Varin Bernier (“SNVB”) made a loan to M. X…, manager (“gérant”) of Inter-Equipements, a corporation, in an amount of F700,000, secured by a mortgage on the individed half of a building situated at Pontault-Combault of which he was owner, and by an undertaking by Mme Y… to provide immoveable surety by mortgaging the other half of the said building to secure repayment; (2) the amount lent was to be made available as working capital to Inter-Equipements; and (3) the latter having been put into liquidation on 16 July 1992, M. X… and Mme. Y… brought action against SNVB for a declaration that the loan had in reality been made, not to the former, but to Inter-Equipements, and that the sham transaction (“simulation”) was intended to allow the Bank to obtain the repayment of its claim against that company, by way of fraud against the rights of other creditors;

Given that, in order to dismiss the claim of M. X… to be allowed to show that he was not the debtor of SNVB because the loan which was made to him was a sham and that the true beneficiary was Inter-Equipements, the judgement finds that (1) the loan document of 21 April 1992 was made in notarised form (“forme authentique”), which implies that the provisions contained in it are deemed to be true until an action is brought to have the document declared false (“jusqu’à inscription de faux”) and (2) the spouses Z… do not show that they have brought an action to have the document declared false and involved the notary in the case;

Given that, by coming to this decision, although (1) in case of fraud a sham can be proved by any means as between the parties to the document and (2) the notary who drafted the document did not himself record the payment, so that such proof was not contrary to the statements made by him in the course of his functions, the Court of Appeal breached the text mentioned above;



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