Nullity of the Contract Opposed by Tronchet: A Case Study

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[...] The forced execution of the contract allows Maleville to demand from Tronchet the payment of the sale price of the car. II- The nullity of the contract opposed by Tronchet Article 63 of the Civil Procedure Code provides thatThe incidental requests are: the reconventional request, the additional request and the intervention » (Article 63, CPC). Article 64 of the Civil Procedure Code provides thatConstitute a reconventional request is the request by which the original defendant claims to obtain an advantage other than the simple rejection of the claim of his opponent » (Article 64, CPC). [...]

[...] As a result, if Tronchet's nullity action is in his favor, Maleville will have to return the sums already paid. However, it will be up to Tronchet to return the car. II. Case Study No. Sale of a car with cash payment Considering the facts, the question is how to legally qualify the claims of each party. The forced execution action brought by Maleville Article 53 of the Civil Procedure Code provides thatThe initial request is that by which a plaintiff takes the initiative of a lawsuit by submitting to the judge his claims. [...]

[...] In this case, Tronchet was engaged towards Maleville as a guarantor of Portalis. The latter being placed in judicial liquidation, Maleville decides to sue Tronchet, as a guarantor, for payment of the main debt. However, Tronchet estimates that Maleville's demand for payment is the result of an error on his part. As a result, Tronchet will oppose a defense at the merits consisting in denying Maleville's right due to a fault on his part that the jurisprudence can sanction by allocating damages and interest. [...]

[...] However, in this case, Tronchet opposes nullity without invoking restitution. However, the new article 1178 paragraph The main effect of nullity is the return to status quo ante. The contract is annulled retroactively and everything happens as if the contract had never been concluded. As a result, Tronchet cannot ask for the nullity of the sales contract without drawing all the consequences, that is, the restitution of the vehicle alone since he had not paid the price to Maleville. III. [...]

[...] Therefore, the defendant must oppose a nullity against the procedural act issued by the society lacking the capacity to sue in court. The Commercial Chamber of the Court of Cassation, in a decision dated 14 June 2000, considered that when summonses are issued by a non-existent legal entity, in this case a company in the process of formation, the nullity that follows cannot be covered. This judgment is similar to the facts of the practical case. Thus, it is up to the defendant to present a nullity of substance to the judge due to the legal non-existence of the company. [...]