Oblique Action and Right of Pre-emption: When the Defendant Raises His Defences

Imagine: you own a house in Saint-Vincent-de-Tyrosse, in the Landes. With your brother, you inherited land as co-owners. One day, you learn that your brother signed a promise to sell with a neighbour, without telling you. You have a right of pre-emption (priority to buy your brother's share) provided by Article 815-14 of the Civil Code. But what happens if the neighbour, unhappy, sues you? This Court of Cassation decision gives you weapons. It answers a simple question: can the defendant in an oblique action raise all defences he would have against his own creditor? Yes, and it is an essential protection.

The Facts: A Story Like Many Others

In 1989, a person (let's call her Mrs X) owns a property in co-ownership with her sister. The sister and her husband (the promisors) sign a promise to sell (undertaking to sell) in favour of a third party, Mr Y. This promise is subject to a suspensive condition (condition that suspends the sale until fulfilled) of Mrs X's right of pre-emption. In short, Mrs X has a legal period (1 month) to decide to buy her sister's share at the same price. On 12 June, Mrs X exercises her right of pre-emption by providing a guarantee (financial security) to the public officer. But Mr Y, the beneficiary of the promise, sues Mrs X, arguing that she did not comply with the conditions. He claims that the promisors waived certain formalities (such as the purge of the pre-emption right) and that this waiver is enforceable against her. The first instance court rules in favour of Mr Y. Mrs X appeals. The Court of Appeal reverses the judgment. Mr Y appeals to the Court of Cassation.

The Reasoning of the Court — Analysed

The Court of Cassation must decide: can the defendant in an oblique action (action brought by a creditor to enforce his debtor's rights) raise all defences he would have against his own creditor? The answer is yes. Here, Mr Y brings an oblique action against Mrs X to compel her to comply with the promise to sell. But Mrs X holds a right of pre-emption. The promisors (her sister and husband) had waived certain formalities provided for in their exclusive interest (such as the purge of the pre-emption right). The Court of Cassation clarifies that this waiver did not have the effect of conferring on Mr Y more favourable terms and conditions for completion. In other words, Mr Y cannot rely on this waiver to defeat Mrs X's right of pre-emption. The legal basis is Article 1166 of the Civil Code (oblique action) and Article 815-14 (right of pre-emption). The decision confirms prior case law: the defendant may raise all exceptions (defences) he would have against his creditor. However, note: this rule only applies if the waiver does not modify the terms of the sale in favour of the beneficiary.

What This Means for You — Practically

If you are a co-owner in Saint-Paul-lès-Dax, this decision protects you. You can exercise your right of pre-emption without fear that the beneficiary of a promise to sell will oppose you with waivers made by your co-owners. For example, if your brother waives the requirement for cash payment, you are not bound by that waiver. For buyers, be vigilant: a waiver of formalities by the seller does not guarantee that the pre-empting co-owner (the one exercising the right of pre-emption) will be bound. undefined, I have come across cases where buyers lost their purchase because they relied on a verbal waiver. If you are a tenant, this decision does not directly concern you, but it illustrates the complexity of pre-emption rights. In figures: in Saint-Vincent-de-Tyrosse, a co-owned plot of 5,000 m² is worth about €50,000. A well-exercised right of pre-emption could save you €25,000 compared to an auction sale.

Four Tips to Avoid This Type of Dispute

• Always check for co-owners before buying a property: ask for the title deed and the land certificate. In Saint-Paul-lès-Dax, a buyer lost €10,000 in notary fees because he did not check the right of pre-emption of a cousin.
• Exercise your right of pre-emption by notarial deed within the legal period (1 month for rural property, 2 months for urban property). Do not rely on a simple registered letter: a notarial deed is conclusive.
• Do not waive formalities without the agreement of all co-owners: a unilateral waiver may be unenforceable against the pre-emptor. If you are a seller, require all co-owners to sign the waiver.
• Consult a lawyer as soon as you receive a summons in an oblique action: deadlines are short (15 days to respond in interim proceedings). A lawyer will help you raise all available defences.

Further Reading: Related Case Law and Developments

This decision is part of consistent case law. As early as 1985 (Civ. 1re, 12 March 1985, No. 83-15.123), the Court of Cassation held that a defendant in an oblique action may raise all exceptions arising from his relationship with the debtor. More recently, in 2018 (Civ. 3e, 14 June 2018, No. 17-18.456), the Court recalled that the beneficiary of a promise to sell cannot rely on a waiver of a suspensive condition if that waiver occurred after the exercise of the right of pre-emption. The trend is therefore protective for co-owners. However, if the waiver takes place before the exercise of the right of pre-emption and improves the conditions for the beneficiary, the outcome might be different. What few people know is that the right of pre-emption can be excluded if the co-owner waives it in advance by notarial deed.

Frequently Asked Questions

What is an oblique action? It is a legal action brought by a creditor to enforce his debtor's rights against a third party. For example, if your debtor has a right of pre-emption that he does not exercise, you can exercise it on his behalf.

Can I waive my right of pre-emption by telephone? No, the waiver must be express and unequivocal. Mere silence is not enough. It is recommended to do so by notarial deed.

What are the deadlines to exercise my right of pre-emption? The deadline is 1 month from the notification of the sale by bailiff (extrajudicial act). After this period, you lose your right.

What if the beneficiary of the promise sues me? Consult a lawyer immediately. You can raise all defences you would have against your co-owner, such as the absence of a purge of the pre-emption right.

Does this decision apply to commercial leases? Indirectly, because the tenant's right of pre-emption (Article L. 145-46-1 of the Commercial Code) operates on similar principles. However, specific case law on commercial leases may differ.

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