Rescission for Lesion: The Time Limit Runs from the Preliminary Sale Agreement

Imagine: you own a plot of land in Menton, with a sea view and development potential. You sell it in 2018 by a preliminary sale agreement (a private deed) to a developer for €200,000. Two years later, in 2020, the notarial deed is signed at the notary's office. But in 2021, you discover that the land was actually worth €400,000 at the date of the preliminary agreement. The difference is enormous: €200,000, i.e. a lesion of more than 7/12ths of the price. You want to bring an action for rescission for lesion (an action that allows a sale to be annulled if the sale price is less than half the real value). But beware: the time limit for taking action is two years. When does this time limit start? At the signing of the preliminary agreement or at the notarial deed?

This is the crucial question that the Court of Cassation decided in a judgment of 29 January 1992 (No. 90-15.555). And the answer is unequivocal: the time limit runs from the signing of the preliminary agreement, provided that it expresses the definitive intention of the parties and fixes the financial conditions. In other words, if you wait more than two years after the preliminary agreement, your action is inadmissible, even if the notarial deed is later.

This decision, handed down within the jurisdiction of the Court of Appeal of Nice, has major consequences for owners and buyers, particularly on the Côte d'Azur where property prices can soar between the signing of the preliminary agreement and the notarial deed. But what exactly does it change? Let's delve into the details.

The facts: a story that happens every day

Mr X, owner of a plot of land in Menton, located in an area of high property pressure, decides to sell it. He signs a preliminary sale agreement (private deed) with a developer on 1 March 1985. The price is fixed at 1,200,000 francs (approximately €183,000). The preliminary agreement includes a suspensive condition (a condition on which the completion of the sale depends): obtaining the administrative authorisations necessary for the division of the land into twenty-two buildable plots. These authorisations are obtained a few months later, and the notarial deed of sale is signed at the notary's office on 15 January 1987.

On 14 January 1989, nearly two years after the notarial deed but more than four years after the preliminary agreement, Mr X sues the buyer for rescission for lesion. He argues that the land was actually worth 2,800,000 francs (approximately €427,000) at the date of the preliminary agreement, i.e. a lesion of more than half the price. The Court of Appeal of Nice, in a judgment of 25 January 1990, declares his action inadmissible as out of time: the two-year time limit provided for by Article 1676 of the Civil Code began to run on 1 March 1985, the date of the preliminary agreement, and expired on 1 March 1987, before the 1989 claim.

Mr X appeals to the Court of Cassation. He argues that the time limit could only run from the date of the notarial deed, because the sale was not perfected (definitive) until that moment, due to the suspensive condition. The Court of Cassation dismisses his appeal: it confirms that the preliminary agreement already expressed the definitive intention of the parties and fixed the financial conditions. The suspensive condition did not affect the agreement on the thing and the price. Consequently, the sale was perfected from the preliminary agreement, and the time limit for rescission runs from that date.

The reasoning of the court — dissected

The judges' reasoning is based on the interpretation of Article 1676 of the Civil Code (which sets the two-year time limit for bringing an action for rescission for lesion). This provision states that "the action for rescission is no longer admissible after the expiry of two years, from the day of the sale". But what is "the day of the sale"? Is it the preliminary agreement or the notarial deed?

The Court of Cassation gives a nuanced answer: a distinction must be made depending on whether the preliminary agreement expresses the definitive intention of the parties. If the preliminary agreement contains all the essential elements (thing, price, consent) and the parties have not made the sale subject to a suspensive condition that would affect the agreement on the price, then the sale is perfected from the preliminary agreement. In this case, the Court of Appeal had found that "the notarial deed of sale was the exact translation of the intention of the parties, expressed at an earlier date, definitively setting out the financial conditions of the sale". In other words, the preliminary agreement already fixed everything; the notarial deed merely recorded an already existing agreement.

The judges therefore considered that the suspensive condition (obtaining the subdivision authorisations) did not relate to the price or the agreement of intention, but to the feasibility of the project. Once the condition was fulfilled, the sale was deemed to have been perfected retroactively to the date of the preliminary agreement. Consequently, the two-year time limit runs from that preliminary agreement. This is a confirmation of earlier case law, not a reversal. The Court of Cassation had already ruled to this effect in a judgment of 13 February 1985 (Bull. civ. III, No. 30).

However, beware: if the preliminary agreement does not express a definitive intention (for example, if it is a unilateral promise to sell, or if the price is provisionally fixed), the time limit might run from the exercise of the option or the notarial deed. But in the majority of cases, the preliminary sale agreement is considered a perfected sale, and the time limit runs from its signing.

What this means for you — practically

This decision has immediate practical implications for several profiles:

• Seller-owner: if you believe you have sold your property at too low a price (lesioned by more than 7/12ths), you must bring an action for rescission within two years following the preliminary agreement, not the notarial deed. Example: you sell a flat in Nice on 1 June 2023 by preliminary agreement, the notarial deed is signed on 1 December 2023. If you discover in January 2025 that the property was worth €400,000 instead of €200,000, your action is already inadmissible because the time limit expired on 1 June 2025, but beware: if you want to act, you must do so before 1 June 2025. But if you discover the lesion after that date, you are time-barred.
• Buyer: you are protected by this short time limit. Once two years have passed after the preliminary agreement, you are certain that the sale cannot be challenged for lesion. This secures your acquisition.
• Notaries and estate agents: you must inform your clients of this rule. undefined, I have come across cases where sellers, believing that the time limit ran from the notarial deed, lost all recourse. A simple mention in the preliminary agreement can avoid disputes.
• Property professionals (developers, investors): when buying in bulk or plots for subdivision, check the date of the preliminary agreement. If a suspensive condition takes a long time to fulfil, the two-year time limit may seem short. Anticipate potential challenges.

Four tips to avoid this type of dispute

• 1. Have your property valued before signing a preliminary agreement: before committing, have a professional property valuation carried out. In Menton, where prices vary according to the view and development potential, a valuation error can be costly. An assessment of €200,000 instead of €400,000 is a potential lesion.
• 2. Do not wait to take action: if you suspect a lesion, consult a lawyer as soon as the preliminary agreement is signed. The two-year time limit is short, and the steps (expertise, formal notice, claim) take time. Do not rely on the notarial deed to start the time limit.
• 3. Draft the preliminary agreement clearly: state whether the sale is perfected or subject to a condition. If you want the sale to be perfected only at the notarial deed, specify this. But beware: case law may recharacterise the agreement. Better to be explicit.
• 4. Keep all documents: preliminary agreement, addenda, correspondence, evidence of the property's value. In the event of a dispute, the date of the preliminary agreement will be crucial. Also keep evidence of the real value (advertisements, earlier preliminary agreements, valuations).

Further information: related case law and developments

This decision is part of a consistent line of the Court of Cassation. In a judgment of 13 February 1985 (No. 83-15.678), the Court had already ruled that "rescission for lesion can only be claimed within two years of the sale, and this time limit runs from the date of the deed that transferred ownership", but specifying that if the sale is perfected from the preliminary agreement, the time limit runs from that date. A more recent judgment of 3 November 2016 (No. 15-22.386) confirms: "the time limit for the action for rescission runs from the date on which the sale became perfected between the parties, regardless of the date of the notarial deed".

The trend is therefore clear: judges favour legal certainty and stability of transactions. As soon as the parties have agreed on the thing and the price, the clock starts ticking. This prevents sellers from waiting years after the notarial deed to challenge the price, which would destabilise the property market. For the future, this rule should continue, unless the legislator intervenes. In practice, notaries are now vigilant and often state in preliminary agreements that "the sale is perfected as of this day", which further anchors the starting point of the time limit.

Frequently asked questions

• Can I still bring an action for rescission if I signed a preliminary agreement more than two years ago, but the notarial deed is less than two years old? No, if the preliminary agreement expressed the definitive intention of the parties, the time limit runs from the preliminary agreement. You are time-barred.
• What if I discover a lesion after two years from the preliminary agreement? Unfortunately, the action for rescission is inadmissible. You might possibly invoke fraud (dol) if the seller knowingly concealed the real value, but the limitation period for an action for fraud is five years from discovery. This is a narrow path.
• How can I prove that the preliminary agreement did not express the definitive intention? You must show that the parties had provided that the sale would only be perfected upon fulfilment of conditions or at the notarial deed. For example, a clause stating that "the sale will only be concluded after signature of the notarial deed" or a unilateral promise to sell. In practice, this is difficult if the preliminary agreement contains a firm price and a deadline.
• What are the costs of an action for rescission? They include lawyer's fees (often €2,000 to €5,000 depending on complexity), court expert fees (€1,000 to €3,000) and court costs. If you win, the buyer may be ordered to reimburse part, but the financial risk exists.
• Is there a remedy if the lesion is less than 7/12ths? No, rescission for lesion is only available in case of a lesion of more than 7/12ths of the price. Below that, you cannot act on this ground. You might invoke a defect of consent (mistake, fraud) if the conditions are met.

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