Proof of Payment of the Sale Price: What the Court of Cassation Requires

Imagine: you sell your house in Quetigny, the preliminary contract is signed, the notarised deed too. But the buyer claims to have already paid the balance of 7,500 francs (about €11,400 today) while you have received nothing. You start proceedings, and the judge rules against you because your behaviour after the sale seems suspicious to him. Unfair, isn't it? This is exactly what happened in the case decided by the Court of Cassation on 5 June 1970.

This decision, over fifty years old, remains highly relevant. It reminds us of a fundamental rule: the person claiming to be released from a debt (the buyer) must prove payment. It is not enough to rely on assumptions or the seller's attitude. But then, how do you prove that you have paid? And what should you do if you are the unpaid seller? That is what we will see together.

Throughout this article, I will break down this Court of Cassation decision, its practical consequences for owners and buyers, and give you concrete advice to avoid finding yourself in such a situation. Whether you are in Beaune, Dijon or elsewhere, these rules concern you.

The Facts: A Story Like Those That Happen Every Day

We are in the 1960s. Mr and Mrs X sell a property to the Ys. The sale price is set at a certain amount, payable in instalments. In the deed of sale, the buyers acknowledge being debtors for a balance of 7,500 francs. So far, everything is clear.

Except that, a few months later, the sellers claim this balance. The Ys retort that they have already paid, in cash, into the hands of the seller. Problem: no receipt, no writing. Their only proof? The seller's behaviour after the sale — he apparently did not claim the sum for some time — and the plausibility of their statements.

The case comes before the Court of Appeal. The trial judges rule in favour of the buyers. How? By considering that proof of payment can be provided by any means (not only in writing) and by deducing this proof from the seller's statements and his personal behaviour. In other words, because the seller delayed claiming his due, the judges conclude that he was probably paid.

The furious sellers appeal to the Court of Cassation. They invoke Article 1315 of the Civil Code (now Article 1353 since the 2016 reform), which provides that the person claiming performance of an obligation must prove it, and that the person claiming to be released must justify payment or the event that extinguished his obligation. In short, it is for the buyer to prove that he has paid, not for the seller to prove that he has not been paid.

The Reasoning of the Court — Analysed

The Court of Cassation quashes the appellate decision. It considers that the trial judges violated Article 1315. How? By accepting that proof of payment could be inferred from mere presumptions drawn from the seller's behaviour and the plausibility of his statements. For the High Court, payment must be proved by the person relying on it, and this proof cannot result from mere conjecture.

Let us clarify the legal basis. Article 1315 (former) of the Civil Code stated: "He who claims performance of an obligation must prove it. Conversely, he who claims to be released must justify payment or the event that extinguished his obligation." Today, Article 1353 takes up this rule. Concretely, if you sell a property and the buyer says he has paid, it is up to him to prove it. Not for you to prove that you did not receive money.

But be careful: can proof of payment be made by any means? Yes, in principle, for commercial acts or when the law allows it. But for civil acts (such as a real estate sale between individuals), proof is regulated: above €1,500, a writing is required (Article 1359 of the Civil Code). Here, the amount was 7,500 francs, well above the threshold. So a writing was necessary. The appellate judges circumvented this rule by relying on presumptions.

The Court of Cassation reminds us of an obvious point: one cannot infer payment from the mere fact that the seller did not immediately claim the money or behaved oddly. That would reverse the burden of proof. This decision is not a reversal — it is consistent. But it serves as a reminder: trial judges cannot substitute proof with impressions.

What were the buyers' arguments? They said: "We paid in cash, the seller did not claim the sum for months, so he must have been paid." The sellers replied: "We received nothing, and it is up to you to prove payment." The Court of Cassation ruled in favour of the sellers on the principle.

What This Means for You — Practically

This decision has very strong practical implications, whether you are a seller or a buyer. Let us take concrete examples.

For the seller (landlord or private individual): you sell a property in Quetigny for €200,000. The buyer gives you a banker's draft on the day of signing, but the balance of €10,000 is to be paid later. If the buyer claims to have given you this sum in cash, without a receipt, and you dispute it, it is up to him to prove payment. You have nothing to prove, you. But be careful: if you have signed a receipt or an instrument acknowledging payment, you are bound. So never sign a document attesting to a payment you have not received.

For the buyer: you buy a flat in Beaune. You pay the price, but you lose the receipt. The seller claims the sum again. What to do? You must prove payment. How? By a bank transfer (bank statement), a cashed cheque (bank statement), or any other writing (signed receipt, notarised deed mentioning payment). If you paid in cash, it is very risky: without a writing, you will be in difficulty. In this case, the Court of Cassation does not say that cash payment is prohibited, but that it is difficult to prove.

For the real estate professional (agent, notary): you must advise your clients to always formalise payments by cheque or transfer, and to keep supporting documents. A simple "I paid you in hand" is not enough before a judge, especially if the amount exceeds €1,500.

If you are in this situation, you must act quickly. If you are a seller and the buyer has not paid you, send a formal notice by registered letter with acknowledgement of receipt. If you are a buyer and you have lost your supporting documents, gather all possible elements: bank statements, witness statements (if cash payment), correspondence. But do not rely on the seller's behaviour to prove payment.

Four Tips to Avoid This Type of Dispute

• Insist on a writing for any payment, whatever it is. Whether it is a cheque, transfer or cash, ask for a receipt signed by the seller mentioning the date, amount and purpose (e.g. "balance of the sale price of the property located at…"). Keep it carefully.
• Use traceable means of payment. Prefer bank transfer or banker's draft. Cash should be avoided for large sums, as its proof is almost impossible without a writing.
• Never sign an instrument (preliminary contract, notarised deed) indicating that you have paid if that is not the case. In the 1970 case, the buyers had acknowledged in the deed of sale that they were debtors for the balance. They could not later claim to have paid without providing proof. A notary will tell you: do not sign a document that does not reflect reality.
• In case of dispute, consult a lawyer specialised in real estate law quickly. The limitation periods (5 years for payment actions) run fast. A formal notice can interrupt the limitation period. Do not let it drag on.

Further Analysis: Related Case Law and Developments

This 1970 decision is part of a consistent line of the Court of Cassation. The same principle is found in a judgment of 13 February 2007 (appeal no. 05-19.660): proof of payment cannot result from mere presumptions drawn from the creditor's behaviour. More recently, a judgment of 27 January 2021 (no. 19-22.290) recalled that payment must be proved by the person invoking it, and that judges cannot rely on "serious, precise and consistent circumstantial evidence" to circumvent the requirement of a writing when the amount exceeds €1,500.

The trend is therefore towards strengthening legal certainty: a writing is required for significant payments. The 2016 reform of contract law (Order of 10 February 2016) did not change this rule: Article 1353 takes up the former Article 1315. So, nothing new under the sun. But be careful: for mixed acts (merchant and individual), special rules may apply. If you are a professional, proof by any means is allowed, but that does not exempt you from keeping records.

For the future, with the digitisation of payments, instant transfers and blockchains, written proof becomes easier. But the habit of paying in cash persists, especially in transactions between individuals. Beware of it: it is the best way to end up in court.

Frequently Asked Questions

Can I prove a cash payment without a writing? Yes, but it is very difficult. You can provide witness statements, recordings (subject to conditions), or presumptions. But if the amount exceeds €1,500, the law requires a writing (Article 1359 of the Civil Code). Judges may accept other evidence if there is a commencement of proof in writing (e.g. a text message from the seller saying "payment received"). But it is risky.

What if the seller claims a sum already paid? Gather all evidence of your payment: bank statements, scanned cheques, receipts, letters. Send a registered letter to the seller reminding him of the payment and put him on notice to cease his claims. If he sues you, you will have to prove payment. If you have no written proof, contact a lawyer.

What is the time limit for claiming an unpaid sum? The action for payment of the sale price is prescribed by 5 years (general limitation period). This period runs from the date the payment was due. If you are a seller, act quickly: send a formal notice that interrupts the prescription. If you are a buyer and have lost your evidence, the time limit to claim against the seller (action for restitution of undue payment if you paid twice) is also 5 years.

Does this decision apply to leases? Yes, the principle is general: the tenant who claims to have paid his rent must prove it. So, keep your rent receipts or bank statements. If you pay in cash, demand a receipt each time.

Can I rely on a bank transfer without a receipt? Yes, a bank transfer is written proof: your bank statement shows the recipient, date and amount. It is solid proof. But if the transfer is made to an account that is not the seller's, be careful: you will have to prove that the account belongs to him or that he instructed you to transfer to that third party. It is better to transfer to the seller's account mentioned in the deed.

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