Synallagmatic Promise of Sale: Contractual Freedom and Constitutive Elements

Extract

[...] The Papeete Court of Appeal, on 1 April 2010, upheld the appellant's claim. According to it, the consent of the parties cannot be a suspensive condition and is not required at the time of the execution of the contract. It is given at the time of the signing of the agreement recording the agreement of the parties on the thing and on the price. As for the damage suffered, the Court of Appeal noted a loss of chance for the injured party. [...]

[...] They illustrate contractual freedom by the parties' choice regarding this reiteration. However, this choice is framed: this reiteration will be either a constitutive element of consent or a simple modality of execution of the sale. The consequences are very different insofar as in the first case, one touches on the very essence of the contract, on its constitutive elements. Furthermore, this freedom seems limited due to the general lack of knowledge of this element by co-contractors not initiated into the law. [...]

[...] The judges therefore ruled, foreseeing, at the choice of the parties, the reiteration as a constitutive element of the consent. This comes to burden the contract and add additional formalities to be performed. Finally, the reiteration clause can then no longer be limited to being a suspensive term of the contract but a true condition of it. Thus, reiteration would be a 'element of their consent' This hardening of the elements of the synallagmatic promise of sale presents a solution that is both innovative and protective of co-contractors. [...]

[...] 3rd June 2012, n° 10-22.906 The synallagmatic promise of sale The present judgment of cassation, unprecedented, rendered by the third civil chamber of the Court of Cassation precisely defines the contours of the clause of reiteration in the context of a synallagmatic promise of sale. In this case, a synallagmatic promise of sale, also known as a sales agreement, was signed on 17 March 2004 between two co-contracting parties, the promisor and the beneficiary. This sale concerns a plot of land. Five months later, one of them signified their intention to the other to bring an end to the negotiations. [...]

[...] This reaffirmed solution is protective of co-contractors as it applies the principles of contractual freedom, contractual equality. It also allows for a certain security of contracts. A double consent is better than a single consent. On the other hand, this double consent, this consent at two levels is debatable since it burdens the contract and it clouds the field of forced realization of pre-contracts of real estate sales. These criticisms have not hindered the supreme judges who have given an identical solution a year later in a decision made by the same chamber on September (n° 12-22.883). [...]