Analysis of the Court of Cassation's decision on the effectiveness of the promisor's retraction before the exercise of the option in a unilateral promise of sale.
Extract
[...] Thus, if the promisor has retracted before the option is exercised, there is no longer a concordant will. The Court adopts a voluntaristic and classical conception of the contract, inherited from the old article 1134 of the Civil Code. The contract can only be born from the meeting of two current and concordant wills. The unilateral promise is therefore not analyzed as an irrevocable commitment, but as an offer accompanied by a deadline, which can be withdrawn as long as the option has not been exercised. [...]
[...] The retraction as an obstacle to the formation of the contract: affirmation of a voluntaristic conception of the contractual link It is first necessary to understand how the Court of Cassation justifies that the promisor's retraction can prevent the formation of the contract, by analyzing the meaning, value, and scope of this solution. The Cruz decision establishes that the promisor's retraction before the option is lifted prevents the formation of the promised contract. The lifting of the option, which occurred after the retraction, is legally ineffective. [...]
[...] Protection of the Promisor's Freedom to Contract: Justification and Limits of the Solution After analyzing the voluntaristic conception of the contract retained by the Court, it is necessary to examine the justification of this solution by the freedom of contract, as well as its limits. The Court justifies its position by the need to protect the freedom of contract of the promisor. As long as the final contract is not formed, the promisor retains the freedom to retract his commitment. The unilateral promise is not assimilated to a perfect contract, but to a preparatory engagement. [...]
[...] The scope of this justification is ambivalent. If it protects the freedom of the promisor, it significantly weakens the legal security of the beneficiary. The unilateral promise becomes an unreliable instrument. In the face of this, the doctrine has been affirmed denouncing a manifest legal insecurity by highlighting that the unilateral promise loses its economic utility, the beneficiary is deprived of the expected protection, the binding force of the contract is weakened. This situation has prepared the ground for a major legislative reform (II). [...]
[...] The Cruz consensual solution has been strongly criticized for having emptied the unilateral promise of its substance. By allowing the promisor to retract freely, the Court has transformed the promise into a simple extended offer, devoid of true binding force. The doctrinal criticisms are based on several arguments: the unilateral promise is a contract considered as perfect, which creates obligations from its conclusion; the retraction would then be a violation of the binding force of the contract; the Cruz solution contradicts the very logic of Article 1134 old. [...]
