Extract
[...] The client company appeals to the Commercial Chamber. Legal issue Does a clause limiting liability stipulated in a contract deprive the scope of the commitment made under the main obligation of the contract, by virtue of which the client has committed, of its substance? Solution The High Court replied in the negative, under Article 1131 of the Civil Code, considering that the Chronopost company was committed to delivering the customer company's letters, and due to the failure to meet this essential obligation, the clause limiting liability in the contract, which contradicted the commitment made, had to be considered as if it were not written. [...]
[...] 3 - Can the real estate agent claim his remuneration in this case? According to article 6I of the HOGUET law, 'the real estate agent is entitled to receive his remuneration provided for in the regularly established mandate if the sale is actually concluded and recorded in a single deed containing the commitment of the parties' (article 6 Ioi HOGUET). In other words, he will only be able to claim to receive his commission if the authentic deed of sale is regularized. [...]
[...] It will be assumed on the one hand that the sale mandate with commission at the seller's expense is a non-exclusive mandate, i.e. simple, and on the other hand, that it has been correctly drafted with the mandatory mentions required by the HOGUET law (complete identity of the seller, designation of the property and its address, net seller price as well as agency fees at the seller's expense, duration of the mandate, rights and obligations of the parties and signatures and stamps on each sheet, and finally the date and place where the mandate was signed), and by the HAMON and ALUR laws. [...]
[...] In the event of non-compliance with these rules, a fine of 15,000 euros is provided for a real estate agent who is a natural person or 75,000 euros for a professional who is a legal person. However, in accordance with Article L221-28 of the Consumer Code, if the real estate agent has already, during the 14-day reflection period and with the owner's consent, visited the property or received purchase offers, the seller's withdrawal will no longer be possible. In practical terms, the constraint of this reflection period must be relativized. [...]
[...] The contract being deprived of cause, let us see what the consequences are. II - THE CONSEQUENCES OF THE ABSENCE OF CAUSE OF THE MAIN OBLIGATION The solution provided in its judgment of 22 October 1996 by the High Court is not without consequence on the sanction applicable to the absence of cause But the solution identified by the Court was taken up by the Ordinance of 10 February 2016 A - THE SANCTION FOR THE ABSENCE OF CAUSE The solution of the Cour de cassation in its judgment of 22 October 1996 regarding the nature of the sanction finds its justification in the facts of the case 1 - THE NATURE OF THE SANCTION The cause is an element of the contract formation, the absence of which is sanctioned in principle by the relative nullity of the said contract. [...]
