Promoter's Liability for Intermediate Defects

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Promoter's Liability for Intermediate Defects

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Real estate promoter liability, personal fault proof, intermediate defects, Article 1831-1 Civil Code, legal guarantee, construction contracts, contractual liability, decennial guarantee, biennial guarantee, promoter obligations, construction law, Civil Code Articles 1792, 1792-1, 1792-2, 1792-3, real estate promotion contract, mandatary liability, work lease contracts, subcontractor responsibility, contractual stipulations, construction defects, liability for intermediate defects, proof of fault, promoter status, agent exempt from construction contracts law, French Civil Code, Court of Cassation ruling, Third Civil Chamber, La Semaine Juridique Notariale et Immobilière, Article 455 Code of Civil Procedure, contractual obligations, stipulations extending promoter obligations, real estate law, construction industry regulations, promoter contractual liability, fault of subcontractors, execution procedures compliance, standards compliance, building owner rights, promoter responsibility, liability for defects, construction project management, real estate development law, French law on construction contracts, promoter mandate, work contracts, construction program execution, liability regime clarification

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Abstract

The Court of Cassation rules on the promoter's liability for intermediate defects, requiring proof of personal fault.

The subordination of the promoter's liability to proof of personal fault
1. The refusal to extend the legal guarantee to intermediate disorders
2. A coherent alignment on the common law applicable to builders
A probatory rigor tempered by the resources of the promotion contract
1. The strength of contractual stipulations extending the promoter's obligations
2. The promoter, mandatary exempt from the law of construction markets

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Extract

[...] 23-22.360 rendered on June and published in the bulletin has clarified their regime when the building owner seeks not a contractor but the real estate promoter to whom he entrusted the operation. In this case, a real estate company had built a care home for dependent elderly people. To this end, on October it concluded a real estate promotion contract as well as an engineering contract with a project manager. Accepted with reservations on December the work revealed facade cracks attributable to the faults of the company responsible for the coating and malfunctions affecting the roller shutters installed by a joinery company since placed in judicial liquidation. [...]

[...] The answer takes the form of a principle. If the promoter, whose mission is to have the building carried out by using work lease contracts, is bound by the obligations resulting from Articles 1792, 1792-1, 1792-2 and 1792-3 of the Civil Code, his contractual liability for intermediate defects requires proof of personal fault. The quashing is nonetheless pronounced on two other grounds, the Court of Appeal having failed to respond to the conclusions regarding the contract clause and having misapplied Law No. [...]

[...] The drafters of real estate promotion contracts will have to weigh each word of the responsibility clauses, while the wise contractors will seek to insert a conventional guarantee of good execution. The balance of the regime is played out less in the law than in negotiation. B. The promoter, mandatary removed from the law of construction markets A second cassation occurs on the ground of the retention of guarantee. To fix the starting point of the interest due on the balance of the price, set at the sum of 314,223.66 euros, the court of appeal had referred to the mechanism of the law n° 71-584 of 16 July 1971, which authorizes a retention of on the payments made to the contractor. [...]

[...] Published in the bulletin after a procedure marked by a radiation and then a re-registration in the role, the decision of June ultimately consolidates a dual regime that practice will have to integrate. The promoter guarantees full rights to the decennial and biennial disorders, while the intermediate disorders require proof of his personal fault, subject to contrary clauses of the contract. The protection of the contractor does not disappear. It simply changes its source, leaving the law to join the contract, which is not the least of the lessons of this decision. [...]

[...] Could the letter of the text not found the opposite solution? Declaring the promoter liable for the execution of the obligations of the companies invites including their contractual liability for fault, which the plaintiff precisely supported. By cutting in favor of the narrow reading, the Court prioritizes the symmetry of the regimes over the protection of the owner. The published watch on La Semaine Juridique Notariale et Immobilière on July adopts this reading grid by highlighting that the promoter's contractual liability for intermediate disorders is only engaged in the presence of personal fault. [...]

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