The Court of Cassation quashes the judgment of the Court of Appeal of Poitiers, ruling that the two-year prescription of a professional's payment action against a consumer leads to the extinction of the mortgage due to its accessory nature.
Extract
[...] Prescription of the personal action leads to the extinction of the hypothec (2488 4°). Thus, the disappearance of the claim leads to the extinction of the hypothec (consacres the indivisibility of the hypothec). - Court of Cassation judges in the first instance: the hypothec is extinguished due to its accessory character to the claim II) The strengthening of the protection of the hypothecary debtor The protection extended to the consumer by the rules of the Civil Code - A with the help of a enriched motivation, Court of Cassation relies on rules of the Civil Code to protect the consumer. [...]
[...] The question of the situation of the third party acquirer or holder of the immovable property burdened with a mortgage - Prior jurisprudence provided for a ' droit de suite for the creditor with the third-party acquirer/holder (Civ judgment)2nd 19 February 2015, no. 13-27.691). So could not benefit from the prescription of the main claim. - Questioning the scope of the judgment for the third-party acquirer: should benefit from the same solution in so far as he cannot be placed in a less advantageous situation than the main debtor (since the creditor no longer has the right to pursue the debtor due to prescription). [...]
[...] The question posed to the Court of Cassation is whether the two-year prescription of a professional's payment action against a consumer leads to the extinction of the mortgage. The Court of Cassation quashes and annuls, in all its provisions, the judgment rendered by the Court of Appeal of Poitiers on 20 November 2018, under Articles 1234 and 2488 of the Civil Code as applicable at the time of the dispute, on the grounds that the two-year prescription of the professional's action against the consumer necessarily entails the extinction of the mortgage, which is an accessory to the claim. [...]
[...] The processualist thesis: only the payment action is extinguished and the obligation for the debtor to pay survives. - Consecration of the substantialist analysis in order to bring an end to the old law that distinguished the hypothecary action and the personal action. - The debate is not settled : the judgment simply states that regardless of whether the prescription affects the main obligation or the payment action, in both cases: extinction by consequence of the hypothec. The reminder of the accessory nature of the hypothec - Reasoning of the Court of Cassation in two stages : ? [...]
[...] Court of Cassation, Civil Chamber May No. 19-16.514 - Does the two-year prescription period for an action to recover payment from a professional against a consumer lead to the extinction of the mortgage? - Introduction and detailed plan The decision commented on was rendered by the Third Civil Chamber of the Court of Cassation on 12 May 2021 and was the subject of a publication in the bulletin and a note in the annual report. In this case, a bank, acting on behalf of the company Intrum, granted a loan to a couple and registered a provisional judicial mortgage on a building owned by them, which later became definitive. [...]
