Handwritten clause for notarised promise to sell: what changes with the ruling of 18 March 2021

Imagine: you are on the verge of buying the house of your dreams in Sète, the one with a view of the port. The notary presents you with the promise to sell, you sign, everything seems perfect. But a few days later, your bank refuses the loan. You were relying on the suspensive condition of obtaining the loan (the clause that cancels the sale if you do not have the financing). Except that in the deed, the waiver of this condition is typed on a computer, not written by hand. So, is the sale voidable? This is exactly the question that arose in the case decided by the Court of Cassation on 18 March 2021. And the answer might surprise you.

This decision, number 20-16.354, resolves a dispute between purchasers and a seller over a simple formality: the handwritten clause. Until then, many thought that any waiver of a suspensive condition had to be written in the purchaser's own hand, on pain of nullity. But the high court said no: when the promise is notarised (i.e., executed before a notary), this requirement disappears. In short, purchasers cannot withdraw by invoking the absence of a handwritten clause.

So, what does this change for you, whether you are an owner, tenant or property professional in Montpellier, Agde or elsewhere? A lot. This ruling secures property sales and prevents untimely cancellations. But be careful, not everything is allowed. Let's break down this decision, its facts, its reasoning, and above all, what you need to remember for your projects.

The facts: a story that happens every day

Mr and Mrs X, a retired couple living in Agde, wished to sell their flat to buy a house in Sète. They signed a promise to sell with purchasers, Mr and Mrs Y, before a notary. The deed provided for a suspensive condition of obtaining a loan (i.e., the sale would only go through if the purchasers obtained their financing). But the Y quickly waived this condition by signing an addendum to the promise. Problem: the waiver was typed, not handwritten. A few months later, the purchasers failed to obtain their loan and turned against the sellers: they argued that the waiver was void because it was not handwritten, and that the suspensive condition therefore remained in force. Consequently, for lack of a loan, the sale would be void.

The sellers, for their part, considered the waiver valid and that the purchasers were obliged to buy. The dispute went to the Tribunal de Grande Instance of Montpellier, then to the Court of Appeal of Montpellier. The lower courts ruled in favour of the purchasers: according to them, former Article L.312-17 of the Consumer Code requires a handwritten clause for any waiver of the suspensive condition, even in a notarised deed. The sale was therefore annulled. The sellers, furious, appealed to the Court of Cassation.

Before the Court of Cassation, the debate focused on one specific point: does the formality of a handwritten clause apply to notarised promises? The sellers argued that the law protects consumers, but that a notarised deed already provides all guarantees. The purchasers retorted that the law does not distinguish. Who would prevail?

The reasoning of the court — broken down

The Court of Cassation quashed the Court of Appeal's decision. It relied on former Article L.312-17 of the Consumer Code, which provides that for promises to sell, the suspensive condition of obtaining a loan must be mentioned in writing, and that the waiver of this condition must be made by a handwritten clause of the purchaser. But the Court specified that this formality only applies to private promises (i.e., signed between individuals without a notary). For notarised promises, executed before a notary, the law does not require it. In other words, the handwritten clause is a protection for non-notarised deeds, because the notary already guarantees the understanding and consent of the parties.

What few people know is that this interpretation is logical: Article L.312-17 (now replaced by Article L.313-41 of the Consumer Code) was designed to protect the non-professional purchaser in private sales, where they may be vulnerable. But in a notarised deed, the notary has a duty to advise and inform. The Court of Cassation therefore considered the additional formality of a handwritten clause to be superfluous. Consequently, the typed waiver is valid, and the suspensive condition is lifted. The purchasers are obliged to buy, even without a loan.

This decision is a confirmation of previous case law (notably Cass. civ. 3e, 9 June 2016, n°15-16.748). It is not a reversal, but it clarifies a grey area. The judges thus rejected the purchasers' argument that the handwritten clause is a rule of public policy (mandatory) that applies to all deeds. No, said the Court: it only concerns private deeds.

What this changes for you — concretely

If you are a seller or purchaser in the Montpellier area, this decision is good news for legal certainty. Here are the implications by profile:

For the seller (landlord or private individual): You can be reassured: if you sign a notarised promise to sell and the purchaser waives the suspensive condition by a typed writing, this waiver is valid. The purchaser cannot withdraw by invoking the absence of a handwritten clause. Concrete example: in Agde, a seller was able to force the sale after the purchaser waived by a simple typed letter. Without this decision, he would have had to refund the deposit and suffer a loss.

For the purchaser (future owner): Be careful: if you waive the suspensive condition in a notarised deed, you are definitively committed. You cannot go back on the pretext that the clause is not handwritten. So, before waiving, make sure you have your loan or can finance the purchase otherwise. A mistake could cost you dearly: in Sète, a purchaser had to pay damages of 10% of the price for wrongfully withdrawing.

For the notary and professionals: This case law secures your deeds. You do not have to require a handwritten clause for waivers in notarised deeds. But you must always inform the parties of the consequences. If you are in this situation, you must verify that the waiver is clear and unambiguous, even if typed. In case of doubt, have a separate document signed.

Four tips to avoid this type of dispute

• Never waive the suspensive condition without having your loan: Wait for the bank's firm agreement. An early waiver exposes you to having to buy without financing, with penalties.
• Use a notary for any promise to sell: The notarised deed protects you better than a private deed. The notary verifies your consent and advises you.
• Require the waiver to be in writing and signed, even if typed: The form is not handwritten, but it must be dated and signed by both parties. Keep an original.
• If in doubt about the validity of a clause, consult a lawyer before signing: A quick consultation (€45 with Maître Zakine) can save you from a costly dispute.

Further details: related case law and developments

This decision is part of a consistent line of the Court of Cassation. Already, in a judgment of 9 June 2016 (n°15-16.748), the third civil chamber had ruled that a handwritten clause is not required for notarised promises. More recently, the Court confirmed this position in a judgment of 27 January 2021 (n°19-23.419). The trend is therefore clear: the judges favour the security of property transactions and limit excessive formalities.

However, note: this rule only applies to promises to sell. For other deeds, such as mortgage loan contracts, the handwritten clause remains mandatory (Article L.313-41 of the Consumer Code). Moreover, if the promise is private, the handwritten clause is mandatory. So do not generalise. What this means for the future: the courts will continue to distinguish according to the form of the deed. For professionals, it is essential to properly qualify the deed.

Frequently asked questions

Q: Can I waive the suspensive condition by email?
A: Yes, if the promise is notarised, the writing can be electronic, provided it is electronically signed and complies with the rules of the Civil Code. But a signed paper document is better to avoid any challenge.

Q: What if I have waived the suspensive condition and my loan is refused?
A: You are obliged to buy. You can try to negotiate an extension with the seller or find other financing. Otherwise, you risk damages (often 10% of the price). Consult a lawyer.

Q: Does this decision apply to promises signed before 2021?
A: Yes, because it interprets a previous law. But check the date of your deed and the specific conditions. If in doubt, seek advice.

Q: Can a notary refuse to draft a typed waiver?
A: No, but he must inform you of the consequences. If he requires a handwritten clause, it is out of excessive caution, but it is not mandatory.

Q: What is the difference between a notarised promise and a private promise?
A: The notarised promise is executed before a notary, who guarantees the date, signature and consent. The private promise is signed between individuals, without a notary. The handwritten clause is only mandatory for the latter.

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 →