Notary destroys deed: when destruction of a preliminary sale agreement triggers criminal liability

Imagine: you sign a preliminary sale agreement to buy the house of your dreams in Dombasle-sur-Meurthe. The notary keeps the only original copy. A few months later, a dispute arises over the sale conditions. You ask to see the agreement… and the notary tells you he has destroyed it. What to do? Your word against his?

This absurd situation gave rise to a judgment of the Court of Cassation on 11 October 1994. The high court had to decide: can a notary destroy a private deed entrusted to him without incurring criminal penalties? The answer is clearly no.

In this decision, the judges applied Article 432-15 of the Criminal Code (formerly Article 173) which penalises the destruction of a deed by a public depositary. They specified that only proof of the consent of all parties to the destruction could exonerate the notary. A lesson to reflect on for any owner or buyer.

The facts: a story that happens every day

In November 1983, Mr and Mrs X, owners of a rural estate in Lunéville, sign a preliminary sale agreement with Mr and Mrs A. The deed, executed as a private deed (i.e., without a notary present), is entrusted to Maître Y, a notary, who keeps the only original copy.

Very quickly, disagreements arise over the conditions for carrying out the sale. Mr and Mrs X, who have a copy of the agreement, initiate proceedings against the buyers. But when they ask the notary to produce the original, he admits to having destroyed it.

Mr and Mrs X file a complaint. The notary is prosecuted for destruction of a deed by a public depositary. Before the judges, he does not contest the material facts (he did destroy the agreement), but he raises an essential point: according to him, the parties agreed to destroy the deed. The question is whether this consent was unanimous and proven.

The reasoning of the court — dissected

The Court of Cassation had to answer a specific question: does Article 432-15 of the Criminal Code (which punishes the destruction of a deed by a public depositary) apply to a notary who destroys a private deed? The answer is yes, without ambiguity.

The text refers to "any person depositary of public funds or effects serving as security." The notary, as a public and ministerial officer, is a public depositary when he keeps a deed by virtue of his functions. It does not matter whether the deed is notarised or private: as soon as it has been handed over or communicated to him in the course of his mission, he is responsible for it.

Next, the court clarifies the rules of evidence. The notary can only exonerate himself by providing proof of the consent of all parties to the destruction. In this case, Mr and Mrs X disputed having given their consent. Since the notary did not provide this proof, his criminal liability was engaged.

This solution confirms previous case law (Cass. crim., 18 March 1992) and is not a reversal. It strengthens the protection of parties against abuses by public officers.

What this changes for you — concretely

For a landlord owner in Dombasle-sur-Meurthe: if you entrust a lease or a preliminary agreement to a notary, he cannot destroy it without your express and written consent. In case of dispute, you can engage his criminal liability.

For a buyer in Lunéville: imagine you sign a preliminary agreement with a notary and later he destroys it. You lose essential evidence. This decision allows you to claim damages and possibly have the notary criminally convicted. The limitation period is 6 years for the offence (Article 432-15, penalty of 10 years' imprisonment and a fine of €150,000).

For a co-owner: if your managing agent destroys a general meeting minutes, the same principle may apply if the managing agent is considered a public depositary (which is rare, but the notary remains the typical case).

In practice, if you are a victim, you must: 1) gather all evidence of the existence of the deed (copies, testimonies), 2) file a complaint with the public prosecutor or directly with the notarial disciplinary body, 3) consult a lawyer to assess the advisability of a civil liability action.

Four tips to avoid this type of dispute

• Demand multiple originals. When signing a private deed, ask for it to be executed in several original copies (one for each party). Thus, the destruction of a single copy does not deprive you of evidence.
• Always keep a copy. Even if the original is with the notary, obtain a certified true copy or keep a scan. In case of dispute, you can at least demonstrate the existence and content of the deed.
• Demand a receipt. When you hand over a document to a notary, ask for a written receipt stating the nature of the document and the date of delivery. This will facilitate proof in case of loss.
• If in doubt, consult a lawyer before signing. A professional can advise you on precautions to take, especially if the deed contains important clauses (conditions precedent, deadlines, etc.).

Further reading: related case law and developments

Before this judgment, the Court of Cassation had already ruled that the destruction of a deed by a notary fell under former Article 173 of the Criminal Code (Cass. crim., 18 March 1992). The 1994 decision merely confirms this solution under the new Criminal Code which came into force on 1 March 1994.

Another interesting decision is that of the Criminal Chamber of 12 September 2000 (No. 99-85.731), which extended the same principle to a bailiff who destroyed a seizure report. The trend is therefore towards enhanced protection of litigants against breaches by public officers.

In the future, it is possible that the Court of Cassation will clarify the conditions of "unanimous consent": must it be express and written? Or can tacit agreement suffice? For now, the burden of proof is heavy on the notary, which is a good thing for the parties.

What you absolutely must remember

FAQ:

• Can a notary destroy a private deed? No, unless all the parties concerned consent and this consent is proven.
• What to do if my notary destroys my preliminary sale agreement? File a complaint for destruction of a deed by a public depositary (Article 432-15 of the Criminal Code). You can also bring a civil liability claim to obtain damages.
• What are the risks for the notary? He faces 10 years' imprisonment and a fine of €150,000, without prejudice to disciplinary sanctions (striking off, suspension).
• Can I prove the existence of the deed if the original has been destroyed? Yes, through copies, testimonies, correspondence. But it is more difficult. Hence the importance of keeping copies.
• Does this rule apply to other professionals? Yes, to any "public depositary": notaries, bailiffs, court clerks, etc.

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