Irrevocable Offer to Sell: When the Owner Can No Longer Withdraw

Imagine you are the owner of a house in Saint-Vincent-de-Tyrosse. You decide to sell it, you sign an agency agreement with an estate agent, and you set a price. A week later, you receive an offer that seems interesting, but you hesitate: what if a better buyer comes along? Can you still change your mind?

This question is asked by thousands of owners every year in the Landes department, whether for a second home in Mimizan or a commercial property in Mont-de-Marsan. The temptation to withdraw is strong when the market fluctuates or a better opportunity seems to appear.

A decision by the Cour de cassation (supreme court) of 10 May 1968 provides a clear but often overlooked answer: yes, an offer to sell can generally be withdrawn... except in one specific case. And this case changes everything for real estate transactions. But what exactly does it change for you, as an owner, tenant, or professional?

The Facts: A Story That Happens Every Day

In 1968, the company Riviera Holiday, owner of a building, entrusted an estate agent named Y... with the exclusive right to sell this property. In other words, it committed not to sell by itself or through another intermediary. The agent quickly found a potential purchaser and made an offer on behalf of his client.

But here's the thing: Riviera Holiday had doubts. It wondered if it could get a better price, or if the sale was really opportune. It therefore considered withdrawing its offer, thinking it still had the right to do so as long as the purchaser had not formally accepted.

The estate agent, however, did not see it that way. He had worked to find this purchaser, and he believed the company had committed to maintaining its offer. To force the seller's hand, he had a formal demand served by a bailiff (an official act requiring someone to act) on the société civile immobilière (real estate company), compelling it to appear before a notary to execute the deed of sale.

The dispute went all the way to the courts: the agent and the purchaser wanted the sale to be enforced, while Riviera Holiday claimed it could withdraw freely. A situation that could easily occur today in Mimizan, where the second-home market experiences seasonal fluctuations.

The Court's Reasoning — Explained

The judges of the Cour de cassation rendered an arrêt (decision of a court of appeal or the Cour de cassation) that establishes a fundamental principle. They first recall a general rule: in principle, an offer to sell can be withdrawn as long as it has not been accepted. This is what is called the freedom to withdraw, based on Article 1104 of the Code civil (which establishes the principle of contractual freedom).

But beware: the judges add a crucial exception. It is otherwise, they say, when the person from whom it emanates has expressly committed not to withdraw it before a certain time. In plain terms, if you, as an owner, have committed in writing or orally to maintain your offer for a specified period, you can no longer withdraw during that period.

In this case, Riviera Holiday had given an exclusive agency agreement to the estate agent. This agreement constituted, according to the court, an implicit commitment not to withdraw the offer during the term of the agreement. The formal demand by bailiff was therefore legitimate, and the company had to honour its promise.

What few people know is that this decision confirms prior jurisprudence (the body of decisions rendered by courts on a given issue) rather than revolutionising it. It relies on earlier arrêts (the arrêts No. 1 and 2 mentioned in the summary) that had already established this principle. But it reaffirms it strongly, particularly in the context of exclusive agency agreements, which are increasingly common in real estate.

What This Means for You — Practically

If you are a landlord (who rents out a property) considering selling, this decision has major implications. Let's say you have a house in Mimizan that you put up for sale at €250,000 with an estate agent. You sign an exclusive agency agreement for three months. If you receive an offer of €240,000 in the first month, you cannot say: "I withdraw my offer, I'll wait for something better." You are committed. undefined, I have handled cases where owners had to pay damages (a sum of money paid to compensate for harm) for withdrawing in this way.

If you are a purchaser, this decision protects you. Imagine you find your dream house in Saint-Vincent-de-Tyrosse for €300,000. You make an offer, and the seller tells you they will maintain it for a month. During that month, you can organise your financing with peace of mind, without fearing the seller will sell to someone else. How to react if the seller changes their mind? You can demand enforcement of the sale or claim damages.

For real estate professionals, this decision strengthens transaction security. An agent with an exclusive agency agreement knows the seller cannot easily "back out." This also justifies penalty clauses (penalty for withdrawal) often included in agency agreements. In case of dispute, the time limits for taking action are generally five years from the breach, and the amounts at stake can reach several thousand euros, or even the value of the property.

Four Tips to Avoid This Type of Dispute

• Read your estate agency agreement carefully: before signing, check if it is exclusive or not, and what its duration is. An exclusive agreement creates more commitment than a simple one.
• Specify your commitments in writing: if you promise a purchaser to maintain your offer until a certain date, put it in writing, even simply. This avoids misunderstandings.
• Consult a lawyer before withdrawing: if you have doubts, a quick consultation can save you a costly lawsuit. The fees of a specialised lawyer are often lower than damages.
• Document all communications: keep records of emails, texts, or letters exchanged with the agent or purchaser. In case of dispute, this evidence will be valuable.

Further Insight: Related Jurisprudence and Developments

This 1968 decision fits into a consistent jurisprudential line. Before it, arrêts like that of the Cour de cassation of 15 January 1964 had already established that a commitment not to withdraw an offer makes it irrevocable. After 1968, jurisprudence continued in this direction, notably with the arrêt of 20 October 1998, which clarified that this commitment could be implicit, arising from the circumstances.

The trend of the courts is clear: they protect transaction security and the good faith of the parties. A seller who commits, even indirectly, must keep their word. What does this mean for the future? With the development of online platforms and digital offers, this issue remains relevant. A click on "I maintain my offer" can have serious legal consequences.

Key Points to Remember

Numbered Checklist "What to do if...":

1. If you are a seller and have signed an exclusive agency agreement: you cannot withdraw your offer during the term of the agreement, except with the purchaser's agreement.
2. If you are a purchaser and the seller withdraws: check if they had committed to maintaining the offer. If yes, you can demand the sale or damages.
3. If you are an estate agent: clearly explain to the seller the consequences of an exclusive agency agreement, and document all commitments.
4. If a dispute arises: act quickly, the limitation periods (time limit beyond which one can no longer take legal action) are five years in contractual matters.
5. In all cases: prioritise writing and transparency to avoid surprises.

Do you find yourself 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 →