Cour de Cassation, First Civil Chamber, (pourvoi no. 02-15.188) Bull.civ. 2005.I. no. 223, p. 189
24 May 2005
Note and subsequent developments by Fr¿¿d¿¿ric Goldberg (translation by Raymond Youngs)
Translated by:
Tony Weir
Professor B.S. Markesinis

Although silence by itself does not count as acceptance, there may be circumstances in which it may be treated as a communicated acceptance.

Given that, having obtained a building permit for his plot of land, M. Madar received an order from the Prefect of the Ile-de-France requiring him to undertake preliminary archaeological excavations, that he then received from AFAN (the National Association for archaeological excavations, now INRAP) an estimate entitled “archaeological diagnosis” notifying him that “further investigation of the rear portion of the property was necessary, and a small trench needed urgently to be dug” and also a new order from the Prefect that such work be undertaken by AFAN as a matter of urgency between 14 and 17 April 1998, and that when M. Madar refused to pay for these works on the ground that he had not accepted AFAN’s estimate, he was sued for payment;

Given that the court below (Versailles, 1 March 2002) held M. Madar liable and he criticises the judgment on the grounds

1. that since silence cannot by itself constitute acceptance, the court of appeal had violated articles 1101 and1108 Code civil in holding that he, as owner of the land, had accepted the second estimate, when had never signed nor returned it nor indicated that he accepted it;

2. that since a person seeking to enforce a contract has to prove the agreement of the parties resulting from the offeree’s acceptance of the offer, the court of appeal reversed the burden of proof in violation of article 1315 Code civil by holding that he could not validly deny having accepted the second estimate addressed to him simply because he had not expressly stated his intention to have no further dealings with AFAN;

But given that although silence does not by itself amount to acceptance, the circumstances may be such that it can properly be treated as an acceptance, and here, as stated below, M. Madar was required to avoid imperilling any archaeological remains by the terms of the building permit and to permit a preliminary excavation by the order of the Prefect of the Ile-de-France region, issued pursuant to the convention between the state and AFAN, requirements which certainly constrained his freedom to consent, especially as if he refused to permit the digs listed in the second estimate he would forgo the necessary certificate of compliance; given that since the court below was quite correct to infer that in this factual context the silence of M. Madar on receipt of the estimate sent to him by AFAN could be treated as acceptance, it did not reverse the burden of proof in holding that M. Madar could not deny his acceptance of that estimate on the mere ground that his consent was not expressly given.

Given that his complaint is baseless;

Subsequent Developments

As at the 1st August 2007, this judgment has neither been confirmed nor contradicted by another judgment of the Cour de cassation. Legal writers have considered that the specific nature of the litigation in this case was the cause of its outcome.

However the judgment expressly recalls that of the 25th May 1870, under which ¿¿¿in law, the silence of a person who is claimed to be under an obligation cannot suffice, in the absence of any other circumstance, to prove against him the obligation alleged¿¿¿.

Some have seen this as calling in question the systematised trilogy of exceptions to the principle of 1870 created by a section of legal writers, and considered that a more flexible and nuanced view would be more faithful to positive law.