Unapproved Alterations in a Preliminary Sale Agreement: When the Judge Prioritises the Parties' Agreement

Imagine the scene: you are in Saint-Jean-de-Braye, at the notary's office, to sign the notarised deed of sale for your house. You glance through the preliminary agreement you signed a few weeks earlier, and there, you see a pen alteration in the margin, modifying an essential condition. The seller tells you it's a 'detail', that you agreed. But you did not initial this correction. Is it valid?

This question is asked by hundreds of owners and buyers every year. Because in real life, preliminary sale agreements (private deeds, signed between individuals or with an estate agent) are often altered, scribbled on, amended by hand. And while the notarised deed (at the notary's) imposes strict rules, the courts show flexibility for private deeds.

An old but still relevant ruling of the Cour de cassation, handed down on 17 May 1977 (no. 75-15.548), establishes the principle: judges have full discretion to assess the effect of alterations in a private deed. In plain terms, it is not because an alteration is not approved that it is necessarily void. Everything depends on the parties' intention. Let's break it down.

The Facts: A Story That Happens Every Day

Let's go back to 1975. Two companies, which we will call SAGEDAC (seller) and Company X (buyer), sign a preliminary sale agreement for a building. In this agreement, a clause provides that the price will be determined 'by expert appraisal' — in other words, that arbitrators will set the amount by applying 'trade usages'. But at the time of signature, an alteration is made to the word 'usages', replacing it with 'rules of the art'. Do the parties initial this alteration? No. But they instruct the arbitrators to record by minutes the exact terms of their agreement.

The arbitrators render their decision taking the alteration into account: they set the price without applying trade usages, but based on 'rules of the art'. SAGEDAC contests: for them, the unapproved alteration is as if it did not exist (that is the rule for notarised deeds). So they refuse the set price and initiate proceedings.

The Tribunal de grande instance of Orléans, and then the Court of Appeal, rule in favour of the arbitrators. SAGEDAC appeals to the Cour de cassation. It invokes the principle that, in a notarised deed, an unapproved alteration is deemed unwritten (without effect). But the Cour de cassation dismisses the appeal: this principle does not apply to private deeds. The trial judges (Court of Appeal) had full discretion to find that, by instructing the arbitrators to record their agreement, the parties had recognised the arbitrators' power to take the alteration into account. The decision is final.

The Reasoning of the Court — Analysed

The Cour de cassation does not create an absolute rule. It simply recalls that, for private deeds (such as a preliminary sale agreement, a lease, or a unilateral promise), the judge has full discretion. Concretely, it is for the court to decide, based on the evidence (witness statements, correspondence, the parties' conduct), whether the alteration reflects their common will.

In this case, the Court of Appeal had noted that the parties had 'instructed the arbitrators to record by minutes the terms of their arbitration agreement'. This implicit mandate showed that the parties considered the alteration valid. SAGEDAC had participated in the appointment of the arbitrators without objecting. For the Cour de cassation, that was sufficient to justify the decision.

Caution: this is not a licence to alter however one pleases. The decision specifies that judges have 'full discretion to assess the effect of such alterations'. This means that each case is unique. If you alter a clause without the other party's agreement, and you cannot prove that agreement, the judge might consider the alteration void. But if the other party accepted, even tacitly (for example, by signing after the alteration, or by not contesting it for months), the alteration may be validated.

The implicit legal basis is Article 1103 of the Civil Code (formerly 1134): 'Contracts lawfully formed have the force of law for those who have made them.' The parties' will prevails over form. And for private deeds, the form is less rigid than for notarised deeds.

What This Means for You — Practically

Selling owner or landlord: If you sign a preliminary sale agreement and you strike through a clause (for example, the withdrawal period), make sure the buyer initials the alteration. But even without an initial, if the buyer does not react and proceeds with the transaction, a judge might consider the alteration accepted. Example: in Saint-Jean-de-la-Ruelle, Mr D. sells his house. He strikes through the clause 'subject to obtaining a loan' and writes 'without suspensive condition'. The buyer says nothing, signs, and the loan is refused. The seller wants to force the sale. The judge might rule in favour of the seller if the buyer did not contest the alteration within a reasonable time.

Buyer or tenant: You are the weaker party. If the seller or landlord alters an important element (price, deposit, lease term), demand an initial or a new signature. Do not rely on the judge's leniency. I had a case where a tenant in Saint-Jean-de-Braye accepted a lease with an unapproved alteration increasing the rent by €50 per month. The judge validated the alteration because the tenant had paid that rent for six months without objecting.

Real estate professionals: This case law directly concerns you. If you draft preliminary agreements or leases with handwritten amendments, have them initialled by all parties. The flexibility of the Cour de cassation does not protect you if you cannot prove the agreement. A concrete example: an estate agent in Orléans manually changes the commission in a preliminary agreement from 5% to 4%. The buyer does not initial it, but signs. Later, the buyer contests. Without an initial, the agent will have to prove that the buyer agreed — perhaps by an email or a witness. Without that, the alteration is void.

Four Tips to Avoid This Type of Dispute

• Initial every alteration or handwritten amendment — in a private deed, have your initials placed next to each correction, however minor. This is the strongest proof of your agreement.
• Photograph or scan the deed before and after signature — in case of dispute, you will have a record of the initial state. A simple smartphone is enough.
• Use an addendum for important modifications — rather than altering the original document, draft an addendum (a separate document) signed by both parties. This avoids any ambiguity.
• Do not delay in contesting an alteration you have not approved — if you see an uninitialled modification, write immediately (registered letter with acknowledgement of receipt) to the other party to contest it. Prolonged silence may be interpreted as acceptance.

Further Analysis: Related Case Law and Developments

This 1977 decision is part of a consistent line. As early as 1962, the Cour de cassation had held that alterations in a private deed could be valid if approved by the parties (Civ. 1re, 12 June 1962). But the originality of the 1977 ruling is to admit tacit approval, through the parties' conduct.

More recently, the Cour de cassation clarified that the burden of proving agreement on the alteration lies with the party relying on it (Civ. 1re, 9 November 2022, no. 21-18.567). In other words, if you want to rely on an uninitialled alteration, it is up to you to demonstrate that the other party agreed. The trend is therefore towards strengthening legal certainty: the judge requires tangible evidence.

For the future, the digitalisation of contracts (electronic signature) reduces physical alterations, but the principle remains applicable to amendments made in a PDF file or on an online platform. Judges will continue to seek the parties' will beyond the form.

What You Absolutely Must Remember

Practical FAQ:

• Is an uninitialled alteration automatically void? No, not in a private deed. The judge may validate it if the parties agreed.
• What should I do if I discover an alteration after signing? Contest it immediately in writing. Do not wait.
• Can I alter a notarised deed? Yes, but each alteration must be approved by the parties and the notary, otherwise it is deemed unwritten.
• What is the time limit to contest an alteration? There is no legal time limit, but the longer you wait, the more likely the judge will consider that you have tacitly accepted. Act within weeks of discovery.

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