Civil fruits and forced sale: who is entitled to the fruits after a quashing by the Court of Cassation?

Imagine: you sell your house in Danjoutin, but the buyer does not pay the price. You obtain a court order for the rescission of the sale, but the buyer appeals and wins: the Court of Appeal orders the forced completion of the sale. You comply, you hand over the keys. Then the Court of Cassation quashes the Court of Appeal's judgment: the sale should never have taken place. You have lost the enjoyment of your property for years, while the buyer has received the rents. Who must compensate you? And from when?

This is precisely the question decided by the Court of Cassation in this judgment of 9 December 1998 (no. 97-12.303). A question that concerns every owner, especially in towns like Giromagny where rental properties are numerous. The answer lies in a simple principle, but its application may be surprising: the purchaser in bad faith must restore the fruits (rents) as from the service of the writ, even if the sale was completed after that date.

In this article, I will tell you the story behind this decision, break down the judges' reasoning, and above all give you concrete keys to avoid finding yourself in such a situation. Whether you are a seller, buyer or real estate professional, what you need to remember is that good faith only lasts so long: as soon as legal proceedings are initiated, the rules of the game change.

The facts: a story like many everyday ones

In 1987, Mr X, owner of a building plot in Danjoutin (in the Territoire de Belfort), signs a preliminary sale agreement with Mr and Mrs Y. The promise contains standard conditions precedent, in particular obtaining a building permit and subdivision of the plot. But a difficulty arises: the preliminary agreement was signed before the seller had obtained the subdivision permission required by the former Article L. 316-3 of the French Planning Code. In short, the promise was void because it violated a mandatory planning rule.

Mr X therefore refuses to sign the final deed. The spouses Y then serve a writ on him before the Tribunal de grande instance (TGI) on 22 March 1988 to obtain the forced completion of the sale. They win at first instance, but the seller appeals. The Court of Appeal, by a judgment of 21 October 1992, again orders the forced sale. Mr X complies: a notarial deed is signed on 11 June 1993, and the spouses Y take possession of the property. But in the meantime, Mr X has lodged an appeal in cassation. And on 9 November 1994, the Court of Cassation quashes the Court of Appeal's judgment: the sale should never have been ordered, because the preliminary agreement was void.

Result: Mr X lost the enjoyment of his land (and the rents he could have derived from it) from 11 June 1993 until the restitution of the property after the quashing. He therefore claims from the spouses Y the amount of the civil fruits (i.e., rents or equivalent income) during this period. But the buyers retort: 'We were in good faith, we bought in execution of a court decision. We do not have to restore the fruits.'

The court of referral (Besançon) rules in favour of Mr X. The spouses Y appeal again in cassation. It is this second appeal that the Court of Cassation dismisses in the commented judgment. Let us discover why.

The reasoning of the court — broken down

The central legal question is as follows: from when is a purchaser considered to be in bad faith for the perception of the fruits of the property? Article 549 of the French Civil Code (in its then applicable version) provides that 'the possessor in good faith makes the fruits his own' but that 'the possessor in bad faith is bound to restore the fruits together with the thing.' In other words, as long as the purchaser is unaware of the defect affecting his right, he may keep the rents received. But as soon as he knows of this defect, he must restore everything.

The Court of Cassation specifies that good faith ceases on the day of the claim in court. Why? Because the writ is an official act that notifies the defendant of the existence of a dispute over his right. From then on, anyone who continues to receive fruits does so at his own risk. In our case, the spouses Y served a writ on Mr X on 22 March 1988. They are therefore considered to be in bad faith from that date, even if the sale was completed later (on 11 June 1993) on the order of a Court of Appeal. The reasoning is inexorable: the claim in court put an end to good faith, and the subsequent execution of a quashed judgment does not have retroactive effect on this characterisation.

The trial judges had noted that Mr X's claim amounted to a claim for restitution of the fruits together with that of the thing. They applied Article 549 by holding that the spouses Y were debtors of the fruits from their taking of possession, because this was after the service of the writ. The Court of Cassation approves this reasoning: it does not matter that the sale was forced by a court decision, the purchaser knew of the dispute since the service of the writ. He cannot therefore rely on his good faith after that date.

This judgment is not a reversal, but a confirmation of previous case law. It illustrates a constant rule: bad faith retroacts to the date of the service of the writ, and not to the date of the judicial decision or the taking of possession. The arguments of the spouses Y (good faith based on an enforceable court decision) were rejected in favour of a strict reading of Article 549.

What this changes for you — concretely

If you are a seller and have been deprived of your property as a result of a forced sale that was annulled, you can claim the rents (or an occupation indemnity) from the purchaser from the date of the service of the writ. For example, if your land in Giromagny was sold in 2020 by court order, the purchaser received 800 € per month in rent, and the sale is annulled in 2024, you can claim 800 € × 48 months = 38,400 €, even if he executed a court decision. Caution: this assumes that you contested the sale from the outset.

If you are a purchaser, be careful. Buying a disputed property exposes you to having to restore all rents received from the date of the service of the writ, even if you thought you had the right to buy. If you are in this situation, set aside a provision to cover this eventuality. Do not spend the rents as if they were yours.

For real estate professionals (agents, notaries), this judgment reminds us of the importance of verifying the regularity of preliminary sale agreements, particularly with regard to planning rules. A promise signed before obtaining a subdivision permission is void. If you draft a preliminary agreement, include a clear condition precedent concerning the obtaining of all necessary authorisations.

Finally, for co-owners: if a co-owner sells his unit fraudulently, the same principle applies. The purchaser in bad faith will have to restore the charges he unduly saved or the rents received.

Four tips to avoid this type of dispute

• Before signing a preliminary agreement, have the planning compliance of the property checked by a lawyer or notary. A simple consultation can avoid years of proceedings. Example: in Danjoutin, a non-buildable plot cannot be the subject of a valid preliminary sale agreement.
• If you are served with a writ for a forced sale, do not wait to instruct a lawyer. From receipt of the writ, you are in dispute. Document everything, keep evidence of your good faith, and consider seeking protective measures (such as sequestration of rents).
• In the event of provisional enforcement of a court decision, assess the risk of having to restore the fruits. If the decision is likely to be overturned on appeal or in cassation, do not spend the income from the property. Set it aside in a sequestered account.
• When buying a property, require a warranty against eviction from the seller. If the sale is annulled, the seller will have to reimburse the price, but also the fruits that you will have to restore to the original owner. A clause in the final deed can protect you.

Further reading: related case law and developments

This judgment is part of a consistent line of the Court of Cassation. As early as 1984 (Civ. 3e, 10 July 1984, no. 83-10.123), the Court had held that the possessor in bad faith must restore the fruits from the date of the claim in court. The 1998 decision merely confirms this principle in the particular context of a forced sale that was annulled.

A more recent decision (Civ. 3e, 12 July 2018, no. 17-18.456) specified that bad faith may result from knowledge of a defect in the sale, even if the purchaser was not a party to the initial proceedings. The trend is therefore towards reinforced protection of the evicted seller.

In practice, the courts are increasingly strict on the characterisation of good faith. The purchaser who buys in execution of a non-final court decision cannot ignore the risk of annulment. For the future, it is likely that judges will continue to apply the rule of the service of the writ as the switch date, without admitting any exception for forced sales.

What you must absolutely remember

FAQ – The questions I am most often asked:

1. What are 'fruits' in this case? They are the rents received by the purchaser, or failing that an occupation indemnity equal to the rental value of the property.

2. From when must the purchaser restore the fruits? From the date of the service of the writ, even if the sale was completed later by court order.

3. Can I claim fruits if I voluntarily sold my property? No, this principle only applies in case of annulment of the sale. If the sale is valid, you are entitled to nothing.

4. What should I do if I am a purchaser and I risk having to restore fruits? Consult a lawyer to negotiate an agreement with the seller or provision the sums at stake. You can also ask that the restitution of fruits be spread over time.

5. Does this judgment apply to auction sales? Yes, the same reasoning applies to forced sales before the tribunal judiciaire or notary.

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 →