Proof of a Sale: the Court of Cassation Rules on the Certain Date and Competing Preliminary Contracts

Imagine: you own a house in Lesneven. You sign a preliminary contract with a first buyer, but a second one comes along with a higher offer. You also sign with him. Who wins? This question was experienced by an owner in the region in the 1970s, and the Court of Cassation had to decide. The problem: is the date of the preliminary contract reliable? Can it be proved that it was signed before the other?

The case pits two buyers, Guion and Sezanne, against each other for the same property. The agency Brunet, instructed to sell, signed a preliminary contract with Guion on 31 May 1968. But Sezanne also has a preliminary contract, undated, but the date of the recorded delivery letter is later. The court finds in favour of Guion. Sezanne challenges this by invoking article 1341 of the Civil Code (which requires a written document for contracts exceeding a certain value). But he did not raise it before the trial judges.

The Court of Cassation dismisses his appeal: article 1341 is not a matter of public policy, therefore it cannot be invoked for the first time in cassation. Moral: if you want to challenge evidence, do so at the beginning of the proceedings. This decision, over 50 years old, remains relevant for anyone selling or buying a property. It highlights the importance of the certain date and procedural strategy.

The facts: a story that happens every day

Mr Sezanne, a resident of Landerneau, covets a property put up for sale by the Brunet agency. The agency received a mandate to sell at the end of April 1968. On 31 May 1968, the agency signs a preliminary contract with a certain Guion, who agrees to buy at the asking price. The sale is perfected that day, even though the notarial deed has not yet been signed.

But Sezanne, also interested, obtains a preliminary contract signed by a representative of the agency. Problem: this preliminary contract is undated. To give it a certain date, Sezanne sends a recorded delivery letter to the agency, and the date of receipt is after 31 May 1968. He is therefore the second buyer in time.

The Brunet agency, however, had retained the mandate to sell even after the Guion preliminary contract? The facts show that it continued to look for other buyers. Result: two buyers compete for the same property. Guion sues Sezanne to have the priority of his preliminary contract recognised. The court finds in his favour. Sezanne appeals, then appeals to the Court of Cassation.

The reasoning of the court — analysed

The Court of Cassation, in its judgment of 20 December 1971, begins by analysing the merits: the preliminary contract signed with Guion on 31 May 1968 is perfect. The sale is concluded, even if the notarial deed has not been drawn up. In law, a preliminary contract of sale is equivalent to a sale as soon as there is agreement on the thing and the price (article 1583 of the Civil Code). Then, Sezanne's preliminary contract is later, therefore ineffective because the property had already been sold.

But the real debate concerns evidence. Sezanne wanted to prove that his preliminary contract was earlier, or at least contemporaneous. He invokes article 1341 of the Civil Code (which requires a written document for contracts of a value exceeding 1500 francs, today around 1500 euros). According to him, the Guion preliminary contract, not being registered, had no certain date. Therefore, it could not be set up against a third party like him.

The Court replies: certainly, article 1341 requires a written document, but this rule is not a matter of public policy. This means that the parties can waive it. However, Sezanne did not invoke this ground before the trial judges (tribunal and court of appeal). He did so for the first time before the Court of Cassation. It is too late. The principle is that the Court of Cassation can only consider grounds raised before the trial judges. Therefore, the grievance is inadmissible.

Consequently, the Guion preliminary contract, although not registered, could be proved by any means (witness statements, correspondence, etc.). The trial judges sovereignly considered that the sale was perfected on 31 May 1968. The Court of Cassation cannot challenge this appraisal of the facts. It dismisses the appeal.

What this means for you — practically

For seller-owners: be careful. If you sign a preliminary contract with a buyer, do not sign with another until you are sure the first is void. Otherwise, you could be ordered to sell the property twice (and pay damages). Example: if you sell your flat in Landerneau for €150,000, then sign a second preliminary contract for €160,000, the first buyer can demand the sale. You must either perform it or compensate him (usually 10% of the price).

For buyers: have your preliminary contract registered quickly. Ask your notary to lodge it with the land registry (formerly the mortgage registry). This gives it a certain date and makes it binding on all. Otherwise, a second buyer could overtake you, as in the Sezanne case. But here, even without a certain date, Guion won because Sezanne did not challenge in time.

For estate agents: you must manage mandates rigorously. If you have received a mandate to sell, you must respect it. Signing a preliminary contract with a first buyer commits you. Do not continue to prospect. In Lesneven, an agency that signs two preliminary contracts risks disciplinary proceedings and damages.

Four tips to avoid this type of dispute

• Have your preliminary contract registered as soon as it is signed: send it to the land registry within 10 days. This gives it a certain date and makes it binding on third parties. Cost: about 0.10% of the price.
• Only sign one preliminary contract at a time: if you are a seller, wait until the first buyer renounces in writing before accepting another. A double sale exposes you to damages (often 10% of the price).
• Keep all evidence of the date: recorded delivery letters, acknowledgements of receipt, email exchanges with timestamps, etc. In the event of a dispute, the certain date can make the difference.
• Raise all your grounds at the start of the proceedings: if you consider that a written document is insufficient (article 1341), say so at the first instance. Do not invoke it only in cassation, as it will be too late.

Further reading: related case law and developments

This 1971 decision is part of a consistent line of case law on the certain date. Before it, the decision Civ. 3e, 10 March 1971 had already held that article 1341 is not a matter of public policy (Bull. civ. III, no. 170). Since then, the Court of Cassation has maintained this position. For example, in Civ. 1re, 14 January 2010 (no. 08-18.778), it recalled that the evidence rule of article 1341 can be set aside if the parties tacitly waive it.

The trend is towards flexibility in evidence. The trial judges have broad discretion to assess the evidence. This means that even without a certain date, a preliminary contract can be upheld if it is corroborated by other indications (correspondence, witness statements). But caution: for property sales, it is better to have a notarial deed or a certain date to avoid any challenge. The legislative future? The reform of contract law (ordonnance of 10 February 2016) did not change the rules of evidence. Therefore, this case law remains relevant.

Frequently Asked Questions

What is the certain date of a preliminary contract of sale?
It is the date that is binding against everyone, including third parties. It is obtained by registration (at the land registry) or by a notarial deed (authentic act). Without a certain date, the date can be challenged.

Can I prove an unregistered preliminary contract?
Yes, by any means (witness statements, letters, etc.) if the opposing party does not raise article 1341. But if they raise it, you must prove the date by a written document.

What are the risks if I sell the same property to two people?
You can be ordered to perform the sale in favour of the first buyer, and to compensate the second (damages, often 10% of the price). In some cases, you may be forced to buy back the property to resell it.

What should I do if I have signed a preliminary contract without a certain date and another buyer appears?
Act quickly: have your preliminary contract registered and inform the estate agent. If the other buyer has already signed, consult a lawyer to assert your priority.

Can an estate agent sign two preliminary contracts for the same property?
No, that is professional misconduct. It engages his civil and disciplinary liability. The seller may also be held liable if he gave his consent.

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