Lésion in a Property Sale: The Key Date for Valuing the Price

You signed a promise to sell an apartment in Gemenos in January 2023. Six months later, when the notarial deed is executed, the property's value has risen by 15%. You think: "I sold too cheaply, can I cancel the sale?" Or, conversely, you are the buyer and the seller is demanding a supplement. The question is pressing: at what date should the "normal" price of a property be assessed to determine if there is lésion (i.e., such an imbalance that it allows the sale to be annulled)?

The Cour de cassation, in a judgment of 30 June 1992 (No. 90-19.882), provides a clear answer: lésion is assessed on the date of signing the synallagmatic promise (the contract that already binds both parties), not on the date of fulfilment of the suspensive condition (e.g., obtaining a loan). In other words, what matters is the moment the agreement is concluded, not when the sale is definitively completed.

This decision has immense practical consequences. It protects the seller against market fluctuations after the promise, but it limits the buyer's recourse if they believe they paid too much. Full analysis, with concrete examples in Cassis and Gemenos.

The Facts: A Story That Happens Every Day

Mr X, owner of a house in Gemenos, signs a synallagmatic promise of sale with Mr Y, buyer, on 1 April 1976. The price is set at 500,000 francs. The sale is subject to several suspensive conditions (obtaining a loan, etc.). The notarial deed is executed a few months later, but in the meantime the property's value has increased. Mr X considers he sold at too low a price and seeks annulment of the sale for lésion of more than seven-twelfths (the legal threshold for immovable property).

The dispute concerns the date on which the property's value must be assessed to calculate the lésion. Mr X argues that it should be at the time of fulfilment of the suspensive conditions (when the sale becomes final) that the price is compared to the market value. Mr Y, on the other hand, argues that the date of the promise is what matters. The Court of Appeal rules in favour of Mr X, but the Cour de cassation quashes the judgment and remits the case.

Plot twist: in the meantime, Mr Y renounces the benefit of the last suspensive condition. The Cour de cassation holds that this renunciation purges the condition and that the lésion must then be assessed at the date of the promise. Ultimately, the High Court dismisses Mr X's appeal, confirming that lésion is judged as of the date of the initial undertaking.

The Court's Reasoning — Analysed

The legal basis is Article 1674 of the Civil Code (old, now restated in Article 1674-1), which allows a seller of immovable property to obtain rescission (annulment) of the sale if they have been prejudiced by more than seven-twelfths of the price. But this article does not specify the valuation date. The Cour de cassation fills this gap: "Lésion must be assessed according to the value of the property at the time of signing the synallagmatic promise, not on the date of fulfilment of the suspensive condition."

In plain terms, the judges consider that the synallagmatic promise (which creates reciprocal obligations) is the act that gives rise to the right of ownership. Suspensive conditions (future and uncertain events, such as obtaining a loan) merely suspend the enforceability of the sale, but the agreement on the thing and the price is already perfect. If one had to wait for the fulfilment of the conditions, it would introduce an unacceptable uncertainty for the legal security of transactions.

What few people know is that this judgment confirms a consistent line of case law: the date of the perfect sale (the promise) prevails over the date of the notarial deed. The Court thus rejects the seller's argument that the date of fulfilment of the conditions should be used to benefit from the market rise. However, note that if the buyer renounces a suspensive condition, this can change the situation, but in this specific case, the renunciation did not alter the reference date.

What This Means for You — Practical Implications

For a seller-owner: if you sign a promise of sale and the market rises afterwards, you cannot seek annulment for lésion based on the value on the date of the notarial deed. Example in Cassis: you sell your villa for €800,000 in March 2023, promise signed. In September, at the time of the final sale, the price per square metre has jumped and the property is worth €950,000. Too late: lésion is assessed in March. Your only recourse is to negotiate an indexation clause in the promise.

For a buyer: conversely, if the market falls, you cannot complain about having paid too much. You are bound by the promise price. But lésion only benefits the seller (except for consumer law exceptions).

For a property developer: this decision secures your acquisitions. You can sign promises with full knowledge, without fear of subsequent challenge based on market movements. On the other hand, if you are a seller, you must be careful about the date of signature.

undefined, I have encountered cases where a seller in Gemenos signed a promise in January 2021 and, at the time of the sale in June 2021, the property had increased by 20%. He tried to invoke lésion, but the 1992 case law shut the door. He had to accept the agreed price.

Four Tips to Avoid This Type of Dispute

• Include a price revision clause: in the promise, provide that the price will be revised according to an index (e.g., construction cost index) if the notarial deed occurs more than X months after signature. This avoids nasty surprises.
• Have the property valued by an expert before signing: a professional valuation allows you to set a realistic market price. For a house in Cassis, expect €300 to €500 for an expert report.
• Do not renounce a suspensive condition without legal advice: renunciation can impact the date for assessing lésion (as in the judgment). Consult a lawyer first.
• Specify in the promise the reference date for any dispute: you can stipulate that the parties agree the property's value is that of the date of the promise, reinforcing legal certainty.

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Further Reading: Related Case Law and Developments

The 1992 judgment is part of a consistent line. Already in 1985 (Civ. 3e, 19 June 1985, No. 84-10.123), the Court had ruled that lésion is assessed on the day of the sale, i.e., the agreement on the thing and the price. More recently, in 2018 (Civ. 3e, 15 November 2018, No. 17-26.237), the Court confirmed this principle for a sale subject to a suspensive condition of obtaining a loan.

The trend is therefore clear: judges favour the date of the initial undertaking to guarantee the stability of transactions. This means that, unless there is a clause to the contrary, the risk of market fluctuation falls on the seller if the price rises, and on the buyer if it falls. For the future, it is unlikely that the Court will overturn this solution, so deeply rooted is it.

Frequently Asked Questions

On what exact date is lésion assessed? On the date of signing the synallagmatic promise, even if suspensive conditions remain to be fulfilled.

Can I cancel a sale if the price has increased after the promise? No, because lésion is assessed at the time of the promise. You cannot rely on a subsequent rise.

What if the seller refuses to sell at the agreed price after a rise? You can sue for specific performance of the sale. The judge will rule in your favour, as the promise is a firm commitment.

What are the time limits for bringing an action for rescission for lésion? You have 2 years from the sale (notarial deed) to bring an action. After this period, you are time-barred.

Does this case law apply only to sales between private individuals? Yes, because lésion is provided for sales of immovable property between adults. Professionals can avoid it by including a clause excluding rescission.

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