Tacit Waiver of a Suspensive Condition: When the Seller's Silence Constitutes Consent

You have signed a preliminary sale agreement (compromis de vente) subject to a suspensive condition of obtaining a loan. The two-month period has expired, but the seller says nothing and continues to prepare the deed of sale (acte authentique). Then, suddenly, they withdraw, claiming that the promise has lapsed. Can they do so? This was the question considered by the French Supreme Court in a judgment of 21 March 1995, which remains relevant for owners and buyers today.

In Arcachon as in Périgueux, promises of sale are commonplace. But what happens if the suspensive condition is not fulfilled within the time limit? Can the seller act as if nothing has happened and require the completion of the sale? Or, on the contrary, must they act quickly to note the lapse? The judges' answer is unequivocal: silence can constitute a waiver.

In this case, the seller continued to transmit documents to the notary without protesting the delay. The judges held that he had thereby waived his right to rely on the suspensive condition. An analysis of a decision that changes the game for all property professionals.

The facts: a story that happens every day

In December 1986, Mr and Mrs A... signed a promise of sale to acquire a building belonging to Mr Z..., subject to a suspensive condition of obtaining a loan within two months. The preliminary agreement provided that if the loan was not obtained within that period, 'each party would regain their freedom'. In other words, the sale would lapse.

Months passed. The deadline expired without the buyers having obtained their loan. Yet Mr Z... continued to send the notary the documents necessary for the preparation of the deed of sale. He said nothing, did not protest. Then, a few months later, he indicated that he would not proceed with the sale. For him, the promise had lapsed from the expiry of the deadline.

Mr and Mrs A... sued him. They argued that Mr Z... had tacitly waived his right to rely on the lapse. The Court of Appeal agreed. Mr Z... appealed to the Supreme Court, arguing that his mere passivity could not constitute a waiver without an 'unequivocal' intention. But the Supreme Court dismissed his appeal. It held that the lower court judges could infer from his behaviour a clear and unequivocal waiver.

The reasoning of the court — explained

The legal basis for this decision is former Article 1134 of the Civil Code (now Article 1103), which provides that agreements must be performed in good faith. Waiver of a right, in this case the right to rely on the lapse of the promise, is not presumed. It must result from acts that unequivocally demonstrate the intention to waive.

But what constitutes an 'unequivocal' intention? The Court of Appeal noted that Mr Z... had transmitted documents to the notary after the expiry of the deadline, without checking the date of the loan, without raising any protest. For the judges, these positive acts (and not mere inaction) were sufficiently clear to constitute a waiver.

The Supreme Court endorsed this reasoning. It recalled that a waiver may be tacit, provided it results from conduct that leaves no doubt as to the intention to waive. In this case, the seller had acted as if the sale were to proceed, by cooperating in the preparation of the deed of sale. He could not later reverse his position.

This decision confirms previous case law. It illustrates the courts' distrust of contradictory behaviour: one cannot lead the other party to believe that all is well and then withdraw when it suits you.

What this means for you — practical implications

For sellers, the message is clear: if the suspensive condition is not fulfilled within the time limit, you must react quickly. Failure to do so risks being deemed to have waived the lapse. You will then be forced to sell at the agreed price, even if the market has changed. Imagine: in Périgueux, a property valued at €200,000 that you want to resell for €250,000 six months later. If you have let things drag on, you could be forced to sell at the original price.

For buyers, this decision is a protection. If the seller does not react after the deadline, you can consider that the sale is still valid. But be careful: you must prove that the seller engaged in active conduct (sending documents, appointments with the notary, etc.) showing that they are not relying on the lapse. Mere silence is not always sufficient.

For notaries and estate agents, the lesson is to document every step. If the seller transmits documents after the deadline, you should ask them in writing about their position. An email or letter can serve as evidence.

Four tips to avoid this type of dispute

• Set a precise deadline and stick to it. In the promise, specify a cut-off date for the suspensive condition. Do not leave any grey area. If the deadline is exceeded, act immediately.
• Always put it in writing. If you are a seller and the deadline has expired, send a registered letter to the buyer and the notary to note the lapse. Do not rely on a telephone call.
• Do nothing that could be interpreted as continuing the sale. Transmitting documents, accepting an appointment with the notary, discussing payment terms: all of this can be used against you.
• Consult a lawyer at the first sign of delay. A quick consultation in Arcachon or elsewhere can save you from a costly lawsuit. Legal fees are often less than the loss if you are forced to sell at a lower price.

Further reading: related case law and developments

This decision is part of a consistent line of authority. In a judgment of 13 February 1996 (no. 93-21.456), the Supreme Court held that waiver of a suspensive condition may result from the seller's voluntary performance of the sale. Similarly, in a judgment of 8 July 2009 (no. 08-17.234), it considered that a seller who accepts a new deadline for the suspensive condition without protest waives the right to rely on the lapse.

The trend is therefore clear: the courts value contractual good faith. They sanction contradictory behaviour and protect the buyer who legitimately believed that the sale was proceeding. Conversely, if the seller has clearly expressed their intention not to sell after the deadline, they will be protected.

For the future, it is likely that judges will continue to require a prompt reaction from the seller. The development of electronic communications could facilitate proof of waiver: a simple email from the seller asking for a date for the signing may suffice.

Key points to remember

• Question: Does the seller's silence after the expiry of the suspensive condition period constitute a waiver?
  Answer: Yes, if accompanied by positive acts (transmission of documents, absence of protest). Mere passive silence is not enough.
• Question: What should I do if I am a seller and the deadline has passed?
  Answer: Immediately send a registered letter to the buyer and the notary to note the lapse. Do not wait.
• Question: Can the buyer still obtain the loan after the deadline?
  Answer: Yes, if the seller has waived the lapse. But the buyer must prove this waiver in writing.
• Question: Does this case law apply to unilateral promises (promesses unilatérales)?
  Answer: Yes, the same principle of tacit waiver may apply if the beneficiary exercises the option after the deadline without objection from the promisor.

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