Sale of Real Estate: Which Date Should Be Used to Assess Lesion? The Answer from the Cour de cassation

Imagine: you sell your house in Gemenos, Bouches-du-Rhône, for €300,000 in 2019. The preliminary contract is signed in March, the final sale in June. In 2023, you discover that the real value of the property was €600,000 at the time of signing the preliminary contract. Can you request the annulment of the sale for lesion (sale at a price less than half the real value)? The answer depends on a crucial question: which date should be used to assess the value of the property?

This question, which hundreds of owners ask themselves every year, was decided by the Cour de cassation in a judgment of 30 March 2011 (No. 10-13.756). The judges set a clear rule: it is the date of the meeting of the minds, i.e., that of the promise to sell (or preliminary contract), which must be used to assess the lesion. Even if a suspensive condition (for example, obtaining a loan) delays the final sale, the key moment remains that of the preliminary contract.

But what exactly does this change for you, whether you are a seller, buyer or real estate professional in Marseille or elsewhere? Let us delve into this decision and its practical implications.

The Facts: A Story Like Many Others

In 1994, the SCI Locosa and a seller, Mr X, signed a promise to sell relating to a building in Marseille. The agreed price was 1,000,000 francs (approximately €152,000). The sale was subject to a classic suspensive condition (a condition on which the performance of the contract depends): obtaining a loan by the buyer. The condition was fulfilled, and the sale was completed by formal deed (notarial deed) a few months later.

But years later, the seller considered that the price was far too low. He sued SCI Locosa to obtain rescission of the sale for lesion. In law, lesion is a defect of the contract allowing the seller to request the annulment of the sale if he sold real estate for a price less than 7/12 (i.e., more than half) of its real value at the time of the sale (Article 1674 of the Civil Code).

The problem? The value of the property had increased significantly between the signing of the promise to sell (1994) and the formal sale (1995). The seller argued that the date to be used to assess the value was that of the formal deed, while the buyer (the SCI) argued that it was that of the promise to sell. The Aix-en-Provence Court of Appeal ruled in favour of the buyer, and the seller appealed to the Cour de cassation.

Before the Cour de cassation, the seller argued that Article 1675 of the Civil Code provides that lesion is assessed 'at the time of the sale', and that the sale is only perfected upon signature of the formal deed, especially in the presence of a suspensive condition. In short, as long as the condition is not fulfilled, there would be no definitive sale. But the Cour de cassation rejected this argument.

The Reasoning of the Court — Analysed

The Cour de cassation upheld the decision of the Aix-en-Provence Court of Appeal by holding that 'the time of the sale' referred to in Article 1675 of the Civil Code corresponds to the meeting of the minds on the essential elements of the contract: the thing (the property) and the price. In other words, as soon as the seller and the buyer have agreed on the property and the price, the sale is considered concluded in principle, even if it is subject to suspensive conditions.

The judges highlighted two particularities of the case: firstly, the promise to sell provided for full payment of the price upon its signature (and not the usual 10% deposit), and secondly, the suspensive condition was already fulfilled at the time of the legal claim. These elements reinforced the idea that the parties' intention was definitively fixed at the time of the promise to sell.

However, note: the Court does not say that any promise to sell is equivalent to a definitive sale. It specifies that it is the date of the meeting of the minds that matters, which normally corresponds to the date of the promise to sell, even in the presence of a suspensive condition. In doing so, the Cour de cassation follows a consistent line of case law that favours the date of formation of the contract rather than that of its performance.

What few people know: this rule applies equally to lesion and to other actions such as a claim for nullity for defect of consent (mistake, fraud). undefined, I have encountered cases where sellers tried to rely on an increase in value between the promise to sell and the formal deed to request rescission. This decision closes that door.

What This Changes for You — Practically

For sellers: if you believe you sold at too low a price, you must act quickly. The time limit to bring an action for rescission for lesion is two years from the sale (Article 1676 of the Civil Code). But this time limit runs from the date of the promise to sell, not the formal deed. Concrete example: if you sign a promise to sell on 1 March 2023 and the formal deed on 1 June 2023, you have until 1 March 2025 to act, not until June. In Marseille, where sale times can be long (obtaining a loan, surveys), this difference is crucial.

For buyers: you are protected against a lesion action that would occur several years after signing the promise to sell, because the starting point is fixed at the promise to sell. However, if you paid a price far below the real value on the day of the promise to sell, the seller can still act within two years. So be careful not to underestimate the value of the property at the time of the agreement.

For real estate professionals: this decision obliges you to advise your clients on the risks of lesion as soon as the promise to sell is signed. If you are involved in a transaction in Marseille or Gemenos, where prices can vary rapidly, it is essential to inform the seller that the value to be used is that of the day of the promise to sell, not the formal deed. A failure to inform could trigger your professional liability.

Four Tips to Avoid This Type of Dispute

• Have the property valued by a real estate expert before signing the promise to sell. A professional valuation will allow you to know whether the proposed price is in line with the market. In Marseille, price differences between neighbourhoods can be significant (e.g., €3,000/m² in the 8th arrondissement versus €5,000/m² in the 7th). Do not rely on a single online estimate.
• Include a price revision clause in the promise to sell. If a long period separates the promise to sell from the formal deed, you can provide that the price will be revised according to the evolution of an index (e.g., the reference rent index). This will prevent the seller from feeling aggrieved by a price increase.
• Keep all evidence of the value of the property on the day of the promise to sell. If you are a buyer, keep proof (advertisements, valuation opinions, photos) demonstrating that the price was in line with the market. In case of a dispute, these elements will be valuable.
• Consult a lawyer specialised in real estate law before signing. A professional can identify problematic clauses and advise you on the risks of lesion. A 30-minute consultation (€45 with Maître Zakine) can save you years of litigation.

Further Analysis: Related Case Law and Developments

This 2011 decision is part of a line of Cour de cassation judgments favouring the date of formation of the contract. One can cite a judgment of 3 November 2004 (No. 02-18.998) in which the Court had already held that, for the assessment of lesion, the date to be used was that of the promise to sell, even if the sale was subject to a suspensive condition. The 2011 decision confirms this direction.

However, a more recent decision of the Cour de cassation of 13 January 2021 (No. 19-20.540) introduced a nuance: if the suspensive condition is not fulfilled, the promise is void and there is no sale. In that case, lesion cannot be invoked. In other words, the promise to sell is the starting point only if the sale actually goes through.

This development shows that the courts seek to secure transactions while protecting the parties against abuse. The trend is clear: it is the initial agreement that counts, to avoid unpredictable price variations from calling into question sales concluded in good faith.

In Practice: What You Need to Do

FAQ:

1. I am a seller, I signed a promise to sell in 2022 and the formal deed in 2023. Can I still take action for lesion?
Yes, if you sold for less than half the real value on the day of the promise to sell. You have two years from the signing of the promise to sell. If you signed it in January 2022, the deadline expires at the end of January 2024. Act quickly!

2. What should I do if I think I have been prejudiced?
Consult a lawyer immediately. You will need an expert appraisal to establish the value of the property on the day of the promise to sell. Then, a court summons must be issued before the expiry of the two-year period.

3. Can the buyer also invoke lesion?
No, lesion is a protection granted only to the seller of a building (Article 1674 of the Civil Code). The buyer cannot request rescission for lesion, but he can act for hidden defects or fraud if the property has defects.

4. What is the cost of an action for rescission for lesion?
Costs include lawyer's fees (often several thousand euros), expert fees (€1,000 to €5,000) and court costs. But if you win, you can obtain damages. A first 30-minute consultation with Maître Zakine (€45) will allow you to assess your chances.

5. Can I avoid lesion by setting a price in the promise to sell close to the real value?
Exactly. The best prevention is to have the property valued by a professional and set a sale price accordingly. If the price is fair, lesion is not possible.

In Practice: What You Need to Do

Checklist for the Seller:

1. Have the property valued by a real estate expert before signing the promise to sell.
2. Keep the written valuation and any document proving the value (advertisements, valuation opinions).
3. If the price seems too low, do not sign the promise to sell without consulting a lawyer.
4. If in doubt after the sale, act within two years following the promise to sell.

Checklist for the Buyer:

1. Check that the price in the promise to sell is consistent with the market to avoid a future lesion action.
2. Keep a copy of the promise to sell and all exchanges regarding the price.
3. If the seller threatens you with a lesion action, consult a lawyer to know your rights.

Are you 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 →