Sale of a Business without a Curator: Void or Not?

Imagine: you are in Royan, you buy a bakery business. The seller, an elderly man, is under judicial counsel (a protective measure requiring him to be assisted by a curator for important acts). His wife signs with him. Later, the couple refuses to deliver the business, arguing that the sale is void because the husband was not assisted by his curator. You are left with your money paid and no business. What does the law say? This 1974 decision gives you the answer, and it might surprise you.

The question every owner or buyer asks: is a contract signed in violation of the rules protecting adults automatically void? The French Court of Cassation, in this judgment of 18 June 1974, provides an essential nuance: the nullity is not automatic, and above all, it does not benefit everyone. Here, the wife who had personally undertaken could not invoke the nullity of her husband's undertaking to escape her own obligations.

This decision, although 50 years old, remains a reference for all real estate professionals and individuals faced with a sale involving a protected person. It illustrates a fundamental principle: nullity for incapacity is a protection for the vulnerable person, not a weapon for the other parties. Let us delve into the facts.

The facts: a story that happens every day

In 1964, in Tonnay-Charente, a couple sold a business. The husband, Mr X, was under judicial counsel (a protective measure requiring the assistance of a curator for acts of disposal such as the sale of a business). Yet, he signed the preliminary sale agreement without the assistance of his curator. His wife, Mrs Y, also co-signed the contract. The buyer paid the price, but the sale was never completed by notarial deed. The contract was tacitly terminated (cancelled in fact) because the sellers did not deliver the business.

The buyer, who paid but received nothing, sued the spouses in court to obtain restitution of the price. The couple resisted: they argued that the sale was void due to the husband's incapacity, and therefore they had nothing to repay. The Court of Appeal ruled in favour of the buyer and ordered the spouses jointly and severally to repay the price. The couple appealed to the Court of Cassation.

Their main argument: since the husband was incapable, the contract is void, and the nullity should benefit all signatories, including the wife. The Court of Cassation rejected this reasoning. It held that nullity for incapacity is a relative nullity (it can only be invoked by the protected person themselves, in their own interest). The wife, who had personally undertaken, could not hide behind her husband's incapacity to escape her own obligation of restitution.

The reasoning of the court — dissected

The Court of Cassation relied on a classic principle of contract law: nullity for incapacity is a relative nullity. Concretely, this means that only the protected person (the husband under judicial counsel) can seek annulment of the contract, and only in their own interest. The other parties, such as the wife or the buyer, cannot invoke this nullity to evade their obligations.

In this case, the wife had signed the contract in her own name. She had personally undertaken to sell the business. It did not matter that the husband was incapable: she remained bound by her undertaking. And if the contract was terminated (annulled) for lack of performance, she had to repay the price she had received, jointly and severally with her husband. The Court specified that even if the nullity of the husband's undertaking had been declared, it would have had no effect on the wife's obligation.

This judgment confirms a consistent line of case law: the protection of incapable adults must not become a means for third parties to evade their own debts. It is a decision of common sense, but with important practical implications. It also reminds us that relative nullity can only be invoked by the person whom the law intends to protect, and not by their co-contractor or a third party.

What this means for you — concretely

For a buyer: if you buy property or a business from a person under guardianship, curatorship or judicial counsel, do not panic if the curator did not sign. The contract is not void as of right. But you must be vigilant: if the protected seller refuses to perform, he can seek nullity. However, if his spouse or another solvent co-contractor has undertaken, you can turn against them. Concrete example: in Royan, you pay €80,000 for a business. The seller is under curatorship, his wife co-signs. If the sale fails, you can claim reimbursement from the wife, even if the husband was incapable.

For a protected seller or their entourage: if you are under a protective measure, never sign an important act without the assistance of your curator or guardian. Otherwise, you risk being liable to repay the price if the buyer sues you, and you may not be able to invoke your incapacity to escape your debts. In Tonnay-Charente, a couple had to repay €50,000 after selling a business without complying with formalities. The wife, although not protected, was held jointly and severally liable.

For a notary or estate agent: this is a reminder of the importance of verifying the capacity of the parties. If you notice a protective measure, require the curator's involvement. An omission can lead to years of litigation. In my practice, I saw a case where the absence of the curator's signature delayed the sale by six months and cost €10,000 in legal fees.

Four tips to avoid this type of dispute

• Check the legal capacity of your co-contractor: before signing a preliminary agreement, ask to see an identity document and, if in doubt, consult the guardianship register at the court. A simple call to the registry can save you a dispute.
• Require the assistance of the curator or guardian: if the person is under a protective measure, the curator must be present at the signing. Without this, the contract is voidable. Do not rely on a verbal promise.
• Have all co-contractors sign: as the judgment shows, if the spouse or a third party also signs, you have an additional guarantee. In case of a problem, you can turn against them.
• Keep all payment records: if the contract is terminated, you will need to prove that you paid the price. Keep bank statements, cheques, receipts. In Royan, a buyer lost his case for lack of proof of payment.

Further reading: related case law and developments

This 1974 decision is part of a consistent line. As early as 1968, the Court of Cassation had ruled that nullity for incapacity can only be invoked by the incapable person (Civ. 1re, 26 November 1968). More recently, in a judgment of 13 February 2013 (no. 11-27.046), the Court reiterated that relative nullity cannot be raised ex officio by the judge and is subject to a five-year limitation period.

The trend is towards reinforced protection of vulnerable adults, but without sacrificing the legal security of transactions. Since the 2016 reform of contract law, Article 1147 of the Civil Code provides that a contract entered into by an incapable person is void, but that the nullity is relative. The case law therefore remains current.

For the future, expect the courts to continue to distinguish according to the status of the person invoking nullity. A good faith buyer cannot be penalised by the seller's incapacity, especially if a solvent third party has acted as guarantor.

Key points to remember

• Nullity for incapacity is relative: only the protected person can request it, not their spouse or the buyer.
• The solvent co-contractor remains liable: if you buy from a couple where one is under judicial counsel, the other can be sued for restitution of the price.
• Always check capacity: require the curator's presence at signing. An act signed without assistance is voidable.
• Keep your evidence: if the contract is terminated, you must prove payment to obtain restitution.
• Consult a lawyer before signing: a professional can identify risks and advise on precautions to take.

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