The Interrogatory Action in the Preference Pact: A New Notion in French Law
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Interrogatory action, preference pact, French law, contract law, Article 1123, Civil Code, third party, beneficiary, nullity, substitution
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Abstract
This document provides an in-depth analysis of the interrogatory action as an innovation within the pact of preference, as codified in Article 1123 of the French Civil Code. The author explores the regime in favor of the third party, the action for repair of damage, and the definition of the preference pact. A must-read for law students and professionals interested in French contract law.
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[...] However, it is regrettable to note that Article 1123 does not provide any clarification on the regime of the action in liability. In fact, it does not specify the conditions for implementing liability towards the beneficiary or the third party. In the silence of the text, one must refer to existing case law in the matter. Thus, the beneficiary has a contractual liability action against his defaulting promisor. Against the third party, the beneficiary has a tort liability action. Of a tortious nature, the beneficiary must necessarily demonstrate the fault of the third party. [...]
[...] On the one hand, he can act in nullity of the contract concluded in fraud of his rights, and on the other hand, he can ask the judge to be substituted for the third party in the contract, which ultimately allows him to conclude the contract with the promisor. The text does not specify the conditions for assessing the knowledge of the pact and the intention to exercise the option by the third party. Therefore, we must refer to the case law, which specifies that this is assessed on the day the third party contracts. [...]
[...] Questions in suspense in the face of the text's imprecision Many questions remain in suspense that it will be up to the jurisprudence to settle. We can notably wonder if this written document addressed to the beneficiary must contain the conditions of the projected contract, even to allow the beneficiary to respond on its intentions. Should we then renew the interrogation in case of change of the conditions of the projected contract?" Similarly, one can wonder about the consequences of a too short deadline left to the beneficiary to respond. [...]
[...] Therefore, it is necessary to question the regime of the preference pact in French law. If Article 1123 of the Civil Code codifies a jurisprudential notion within the Civil Code, it also completes the regime of the preference pact, innovations (II). I. The codification of the preference pact Contribution of the reform of October the notion of preference pact draws its regime in terms of sanctions from a well-established jurisprudence A. The notion of preference pact Article 1123 of the Civil Code gives a definition of the preference pact whose conditions of implementation follow the existing jurisprudential regime The definition of the preference pact The first paragraph of article 1123 of the civil code gives the definition of the preference pact. [...]
[...] Although it is innovative, the interrogatory action has certain limitations. B. The limitations of the interrogatory action This innovation appears to be limited in practice and raises numerous questions A limited practical use Despite this interest in the third party, it remains that this action is likely to have a limited practical application. In fact, on the one hand, it assumes that the third party can suspect the existence of a pact and know the identity of its potential beneficiary to question them. [...]
