Order of the judge-commissioner: simple authorisation or promise of sale?

Imagine: you view a flat in Perpignan, you make an offer, the seller accepts it. You start preparing your move. And then, without explanation, the property is sold to someone else. Furious, you go to court to demand that the sale be completed. What does the law say? This 1989 decision of the Court of Cassation answers a crucial question: at what point is a sale truly concluded?

In this case, a buyer had made an offer for assets of a company in judicial liquidation. The judge-commissioner (the magistrate who supervises the procedure) had authorised the sale. But the liquidator (representative of the creditors) ultimately sold part of the assets to someone else. The unsuccessful offeror brought proceedings to obtain forced sale. The Court of Appeal dismissed his claim. The Court of Cassation confirmed: the order of the judge-commissioner is merely an authorisation to act, not a contract of sale. For a sale to be perfect, there must be an agreement on the thing and the price, formalised in writing (preliminary contract) or at least a synallagmatic promise (reciprocal undertaking).

This decision, although old, remains relevant for buyers and sellers in collective proceedings. It reminds us of a fundamental rule: a simple authorisation does not amount to a contract. So, how can you secure your offers? Follow the guide.

The facts: a story that happens every day

Mr X, a property investor based in Le Barcarès, identifies assets belonging to a company placed in judicial administration (first phase of collective proceedings, before liquidation). He makes an offer at a certain price. The judge-commissioner issues an order authorising the company, assisted by the liquidator, to sell at the proposed price. For Mr X, it's a win: he thinks he has concluded the sale.

But the procedure evolves: the judicial administration is converted into liquidation of assets (equivalent to the current judicial liquidation). The liquidator, now sole master of the sale, requests and obtains a new order from the judge-commissioner to sell part of the assets to another person. The property so coveted by Mr X slips away.

Mr X sues the liquidator and the company for forced performance of the sale. He is dismissed at first instance, then on appeal. The Court of Appeal of Montpellier (whose jurisdiction includes Perpignan) holds that the initial order was merely a simple authorisation to act, without effecting or recording the parties' agreement on the thing and the price. Mr X appeals to the Court of Cassation. The Court of Cassation dismisses his appeal in 1989. It validates the reasoning of the lower courts: no preliminary contract of sale had been signed, and the order did not constitute a promise of sale.

The reasoning of the court — dissected

The question put to the Court of Cassation was simple: can an order of the judge-commissioner authorising a sale amount to a contract of sale, within the meaning of Article 1583 of the Civil Code (current Article 1583, unchanged: the sale is perfected as soon as the parties agree on the thing and the price)?

The unsuccessful buyer argued that the order, coupled with his offer and the absence of opposition from the liquidator, constituted an irrevocable agreement. He invoked the binding force of contracts. But the Court of Cassation did not follow him. It held that the Court of Appeal had been able, without adding to the law, to find that the order was merely an authorisation to act. In other words, the judge-commissioner does not sell, he merely authorises the liquidator to sell. The agreement on the thing and the price must be reached between the seller and the buyer, formalised in writing or at least a synallagmatic promise.

Why this strictness? Because in collective proceedings, the interests of creditors prevail. The liquidator has a duty to seek the best offer. A simple authorisation must not freeze the sale, at the risk of depriving creditors of a more advantageous offer. The Court of Cassation thus confirms settled case law: the order of the judge-commissioner is only a preparatory step. It does not create rights in favour of the offeror until the contract is signed.

This decision fits into a logic of protecting collective proceedings. It reminds us that formalism is not an arbitrary constraint, but a guarantee for all parties.

What this means for you — concretely

For buyers: never consider an order of the judge-commissioner as a definitive green light. Until you have signed a preliminary contract (or a notarial deed), the liquidator can accept a better offer. Concrete example: in 2023, a warehouse in Le Barcarès was sold for €250,000 after an initial offer of €220,000. The initial offeror, who had been content with the order, lost the property.

For sellers in collective proceedings (companies, artisans, traders): you must understand that the order does not bind you. If a more interesting offer arrives before signature, the liquidator may prefer it. Conversely, if you want to secure a sale, insist that the preliminary contract be signed quickly.

For liquidators and judicial representatives: this decision reinforces your role. You must formalise each sale by a written deed, even after the order. A simple authorisation is not enough to transfer ownership.

If you are in this situation, you must: 1) demand a written deed signed by all parties; 2) check that the price is firm and final; 3) be wary of deadlines: an order can be revoked if a higher offer appears.

Four tips to avoid this type of dispute

• Have a preliminary contract signed: as soon as the judge-commissioner authorises the sale, have a preliminary contract drafted by a notary or lawyer. This document formalises the agreement on the thing and the price, and makes the sale irrevocable subject to suspensive conditions.
• Demand a synallagmatic promise: if the preliminary contract is not possible, ask for a synallagmatic promise of sale (reciprocal undertaking). This gives you a preferential right and damages in case of withdrawal.
• Set a completion deadline: in the order or the preliminary contract, provide a deadline for signing the notarial deed. After this deadline, you can take action against the liquidator.
• Consult a specialist lawyer: each collective proceeding has its own specificities. A professional will guide you on the formalities to secure your purchase. In Perpignan, Maître Zakine regularly handles these cases.

Further reading: related case law and developments

This 1989 decision is part of a consistent line. In a judgment of 3 May 1988 (No. 86-17.233), the Court of Cassation had already ruled that the order of the judge-commissioner did not effect a sale, even in the absence of opposition. More recently, in a judgment of 10 February 2021 (No. 19-21.456), the Commercial Chamber reminded that the sale of a building in judicial liquidation requires a notarial deed, the order being only a prior authorisation.

The trend of the courts is therefore clear: the protective formalism of collective proceedings prevails over the will of the parties. This means that, even in case of an accepted offer, the buyer acquires no rights until the deed is signed. For the future, it is likely that this rule will be maintained, as it guarantees transparency and competition between offers.

Frequently asked questions

Can an order of the judge-commissioner be annulled? Yes, if a higher offer is presented before the signing of the deed, the judge may revoke the order. That is what happened in this case.

What if I have already paid a deposit on the basis of an order? The deposit must be returned if the sale is not completed. But to avoid disputes, never pay a deposit before signing the preliminary contract.

Can I claim damages if the sale is ultimately refused? With difficulty, because the order does not create an obligation to sell. Only a signed preliminary contract entitles you to damages in case of wrongful withdrawal.

What is the deadline to challenge an order of the judge-commissioner? The deadline is 10 days from the order to file an appeal. After this deadline, the order becomes final, but still does not amount to a sale.

Does this rule apply to private sales outside collective proceedings? No. In a classic sale, offer and acceptance are enough to form the contract. But in collective proceedings, formalism is reinforced to protect creditors.

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