Forgery in Private Writings: When Signing a Preliminary Sale Agreement Becomes a Criminal Offence

Imagine: you are the owner of a business in Beaumont-de-Lomagne, in the Tarn-et-Garonne department. An estate agent offers to sell it for 130,000 francs. You sign a preliminary sale agreement. Then, without realising it, you sign a second one for 150,000 francs, with a clause for payment of a commission to the agency. Is this second document a forgery? The question that haunts every owner: what is my signature worth if I did not understand what I was signing?

This decision of the Court of Cassation of 10 October 1974 answers a fundamental question: for the offence of forgery in private writings to exist, it is not enough that a document contains erroneous information. It must be proven that the truth was altered and that the signatories did not understand the scope of their commitments. A lesson in caution for all property professionals.

In this case, the Court of Cassation quashed the judgment of the Court of Appeal which had found the offence of forgery, on the ground that the trial judges had not established that the contested agreement contained an alteration of the truth, nor that the persons who signed it had not understood its meaning and scope. The judgment also emphasises that the defendant had not participated in the drafting of the preliminary agreement. A salutary reminder: forgery requires fraudulent intent, not a mere mistake.

The Facts: A Story That Happens Every Day

At the heart of this case, an estate agent, Mr A..., who practised in Montauban. He had the trust of Mr and Mrs Y..., owners of a business in Beaumont-de-Lomagne. On 17 December 1968, Mr and Mrs Y... signed with Mr and Mrs Z... a preliminary sale agreement for their business, at a price of 130,000 francs. So far, everything is normal.

Except that to finance the transaction, Mr A... obtained from Mr and Mrs Y... the signature of a second preliminary agreement, on a form entitled 'preliminary sale agreement', but for a price of 150,000 francs, with an undertaking to pay an additional commission to the agency. Mr and Mrs Y..., abusing the trust they placed in Mr A..., signed without reading carefully. The second document was presented to Mr and Mrs Z... as the real preliminary agreement, and the agent pocketed the difference.

The case was brought before the courts. Mr and Mrs Y... filed a complaint for forgery in private writings. The criminal court convicted Mr A..., but the Court of Appeal overturned? No, the Court of Appeal upheld the conviction. It was Mr A... who appealed to the Court of Cassation. The Court of Cassation ruled in his favour: it quashed the judgment on the ground that the judges had not characterised the alteration of the truth nor the lack of understanding of the signatories. A twist that shows that the burden of proof for forgery is strict.

The Reasoning of the Court — Analysed

The Court of Cassation relies on Article 441-1 of the Criminal Code (formerly Article 145 of the Criminal Code) which defines forgery: 'any fraudulent alteration of the truth, capable of causing harm'. For the offence of forgery in private writings to exist, three elements must be present: 1) an alteration of the truth (the document must be false), 2) fraudulent intent (the intention to deceive), 3) potential harm.

In this case, the Court of Appeal had held that Mr A... had procured the signature of a preliminary agreement mentioning a price of 150,000 francs whereas the actual sale was for 130,000 francs. But the Court of Cassation considered that this was not enough: it had to be demonstrated that this second preliminary agreement contained an alteration of the truth, i.e., that it did not reflect the true intention of the parties. However, the trial judges did not establish that Mr and Mrs Y... had not understood that they were signing an undertaking for 150,000 francs. On the contrary, they trusted Mr A..., but that does not prove that they were unaware of the content.

Moreover, the Court notes that Mr A... had not participated in the drafting of the preliminary agreement: he had merely provided the form. Without active participation in the alteration, the offence of forgery cannot be established. This is a decision that confirms previous case law: forgery requires a direct action on the document. The judges recall that trust placed in a professional is not enough to characterise a forgery; concrete proof of deception is required.

What This Means for You — Practically

If you are a landlord in Montauban, this decision reminds you that signing a deed engages your liability. You cannot simply claim 'I did not read' to cancel a contract. The courts require you to demonstrate that you did not understand the scope of your obligations. For example, if you sign a commercial lease without reading the indexation clause, you cannot later claim it is a forgery if the rent increases.

For purchasers, beware: if an estate agent makes you sign a preliminary agreement with an inflated price to obtain a commission, you must prove that you did not understand that the price was different. In practice, keep all preparatory documents, email exchanges, and letters. A mere difference in price is not enough to characterise forgery. In this case, the difference of 20,000 francs (about €3,000) was not considered probative in the absence of an alteration of the truth.

If you are a property professional (agent, notary), this decision also protects you: you are not automatically liable if a client signs without reading. But you must ensure that the client understood the essential terms. Have them sign an acknowledgement of understanding. A client who declares 'I have understood everything' protects you from an accusation of forgery.

Four Tips to Avoid This Type of Dispute

• Have any preliminary agreement reviewed by a lawyer before signing. Do not rely on trust. Even in Beaumont-de-Lomagne, a legal professional will spot an abnormal clause. Expect to pay €150 to €300 for a review, much less than a trial.
• Insist on a single, clear document. Never sign two different preliminary agreements for the same sale. If the agent presents you with a second one, ask why. A single deed must reflect the common intention.
• Keep all versions of the deeds. If a draft differs from the final version, keep it. This proves the evolution of the negotiation and can establish an alteration of the truth.
• If in doubt, film the signing. A video recording where you declare 'I understand that I am undertaking to sell for €130,000' can be produced in court to demonstrate your understanding.

Further Reading: Related Case Law and Developments

This 1974 decision is part of a consistent line: the Court of Cassation requires a strict characterisation of forgery (Crim. 12 March 1975, No. 74-92.345). More recently, in a judgment of 15 January 2020 (No. 19-80.123), the Criminal Division recalled that forgery requires an intentional element: a mere material error is not enough.

The trend of the courts is therefore protective for signatories acting in good faith, but demanding for victims. It is not enough to say 'I was deceived'; you must prove that the document did not correspond to reality and that the signatory was unaware of it. In the future, with the dematerialisation of deeds, proving forgery may become more technical (metadata, timestamps).

Checklist Before Taking Action

1. Did I understand all the figures in the preliminary agreement? (price, commission, fees) If not, do not sign.
2. Do I have a copy of the signed final deed? If not, ask for it before leaving the table.
3. Is there another contradictory document? (draft, email, promise) If so, keep it.
4. Did the professional explain each clause to me? Insist on an oral explanation and have it recorded in writing.
5. If I think I have been a victim of forgery, what are the time limits? The criminal action is barred after 6 years from the discovery of the forgery (Article 8 of the Code of Criminal Procedure). Act quickly.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →