Promise to Sell: The Court of Cassation Reminds of the Order for Examining Claims

Imagine: you sign a preliminary sale agreement for a house in Mauguio, near Montpellier. You pay a deposit of €20,000. But things go wrong: the seller does not follow through, and you end up in court. Two possible outcomes: either the sale is void (cancelled) because you did not obtain your loan, or it is void ab initio because you made a mistake as to an essential quality of the property. But in what order should the judge examine these claims? The question may seem technical, but it can change everything for your wallet.

The Court of Cassation, in a judgment of 11 May 2011 (No. 10-14.651), provides a clear answer: the judge must first rule on the main claim before examining the subsidiary claim. If he does the opposite, he alters the subject matter of the dispute and violates the principle of the logical order of claims. A decision that directly concerns any seller or buyer, especially in a tense real estate context like in the Hérault.

What actually happened? What lessons can be drawn for your own transactions? I explain everything, without unnecessary jargon, with concrete examples from the Montpellier region.

The Facts: A Story That Happens Every Day

The case begins like an ordinary real estate sale. In 2006, a société civile immobilière (SCI, a company created to hold real estate), SCI CAVOK, signs a preliminary sale agreement with a seller for the acquisition of a residential property. The price is fixed, and a deposit of €20,000 is paid. As is often the case, the agreement contains suspensive conditions (events that must occur for the sale to be final), notably the buyer obtaining a loan.

But things go wrong. Did the SCI not obtain its loan? Or did it discover a latent defect (a non-apparent defect)? In any event, it sues the seller in court. In its pleadings (written arguments), it seeks as its principal claim (main claim) that the sale be declared void for non-fulfilment of the suspensive conditions. Subsidiarily (if the first claim is rejected), it seeks the annulment of the preliminary agreement for error as to the essential qualities (an error relating to an essential characteristic of the property, which would have vitiated its consent).

The court of first instance (the tribunal de grande instance, now the tribunal judiciaire) renders a judgment. The SCI appeals. The court of appeal (the court that re-hears the case) reverses (annuls) the judgment and directly pronounces the annulment of the preliminary agreement for error as to the essential qualities, without first examining the claim of lapse. It accordingly orders the return of the €20,000 deposit.

The seller, dissatisfied, appeals to the Court of Cassation (the highest court). His argument: the court of appeal altered the subject matter of the dispute by ruling on the subsidiary claim without first ruling on the main claim. The Court of Cassation agrees and quashes (annuls) the appeal judgment, referring the case back to another court of appeal.

The Reasoning of the Court — Explained

The Court of Cassation relies on a fundamental principle of civil procedure: the judge cannot alter the subject matter of the dispute, which is determined by the claims of the parties. This principle is set out in Article 4 of the Code of Civil Procedure: "The subject matter of the dispute is determined by the respective claims of the parties." And Article 5 adds: "The judge must rule on everything that is claimed and only on what is claimed."

In this case, SCI CAVOK had made two claims in a specific order: first lapse (main claim), then annulment (subsidiary claim). By ruling directly on the annulment without examining the lapse, the court of appeal violated this principle. Why? Because it acted as if the main claim did not exist, whereas it should have first determined whether the sale was void. If the lapse were upheld, the annulment claim became moot (unnecessary). By bypassing it, the court implicitly rejected the main claim, but without reasons or adversarial debate (without the parties being able to discuss this point).

The Court of Cassation does not rule on the merits: it does not say whether the sale was void or annulled. It merely censures (annuls) the decision for a procedural defect. This is called a quashing for excess of power (the judge exceeded his powers).

This decision is a classic application of procedural law. It does not create a new principle, but forcefully reminds it. The trial judges (appeal judges) must respect the order of claims, on pain of having their decision quashed. This is a guarantee for litigants (people who plead): they know that their arguments will be examined in the order they have chosen.

What This Means for You — Practically

This decision has important practical implications, whether you are a seller, buyer, landlord, or tenant. Here is what you need to remember.

If you are a seller or buyer: when you sign a preliminary sale agreement with suspensive conditions, you must be attentive to the order in which you formulate your claims in court. For example, if you are a buyer and you did not obtain your loan, you can seek lapse (main claim) and, if that is rejected (because the loan was in fact obtained), seek subsidiarily annulment for error. But the judge must first check whether the suspensive conditions have been fulfilled. If you are a seller and the buyer does not pay, you can seek rescission (cancellation) of the sale as a principal claim, and damages as a subsidiary claim.

A concrete example in Castelnau-le-Lez: imagine you are selling a flat in Castelnau-le-Lez for €250,000. The buyer pays a €25,000 deposit. He does not obtain his loan and sues you in court. He seeks as principal claim lapse and return of the deposit, and as subsidiary claim annulment for error as to the surface area (for example, 60 m² instead of 70 m²). If the judge directly pronounces annulment without examining the suspensive condition of the loan, you can appeal and rely on the 2011 judgment to obtain a quashing. This can save you time and avoid having to return the deposit if the lapse was actually well-founded.

If you are a landlord: this decision also applies to commercial or residential leases. For example, if you seek termination of the lease for non-payment (main claim) and subsidiarily for nuisance, the judge must first examine the non-payment.

If you are a tenant: you can rely on this principle if your landlord sues you with several claims. The judge must examine them in order.

In practice, this decision gives you a powerful procedural argument: if the judge does not respect the order of your claims, you can challenge his decision before the Court of Cassation. But beware: this takes time (often 1 to 2 years) and costs money (lawyer's fees, procedural costs). Prevention is better than cure.

Four Tips to Avoid This Type of Dispute

• Draft your claims clearly in the writ: when you bring a legal action, have your lawyer draft pleadings that prioritise your claims: "As principal claim, … ; as subsidiary claim, …". This will avoid any confusion.
• Check the suspensive conditions before signing: in a preliminary sale agreement, make sure the suspensive conditions (loan, planning permission, etc.) are realistic and well-drafted. If they are not fulfilled, lapse is often simpler to obtain than annulment for error.
• Keep all supporting documents: if you are a buyer, keep proof of your steps to obtain a loan (loan rejection, certificates). If you are a seller, keep documents showing that you have fulfilled your obligations.
• Consult a lawyer at the first signs of conflict: do not let it drag on. A lawyer specialising in real estate law, such as Maître Zakine, can advise you on the best strategy (seeking lapse or annulment) and draft solid pleadings.

Further Insight: Related Case Law and Developments

This decision is part of a consistent line of case law from the Court of Cassation. For example, in a judgment of 13 December 2005 (No. 03-20.731), the Court had already censured a court of appeal that ruled on a subsidiary claim without answering the main claim. More recently, in a judgment of 6 January 2021 (No. 19-20.274), it recalled that the judge cannot alter the subject matter of the dispute by substituting one claim for another.

The trend is clear: judges must scrupulously respect the claims of the parties. This means that in practice, lawyers must be very precise in drafting their pleadings, and judges must be vigilant. For the future, we can expect the Court of Cassation to continue to sanction any breach of this logical order, in order to guarantee the right to a fair trial (principle of adversarial proceedings).

This decision directly concerns you if you are involved in a real estate dispute. It offers you procedural protection: you cannot be judged on a claim that you did not make first.

What You Absolutely Must Remember

1. The judge must examine your claims in the order you have chosen: first the main, then the subsidiary. If he does the opposite, his decision can be annulled.
2. This rule applies to all disputes: sale, lease, construction, etc. It is not limited to real estate.
3. If in doubt, ask your lawyer to prioritise your claims: this is a reflex to have as soon as the writ is drafted.
4. If you are in ongoing proceedings, check that the judge respects this order: if not, you can raise the irregularity before the court of appeal or the Court of Cassation.

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 →