Case:
DP 1870. 1. 257 Case Guilloux v. Société des raffineries nantaises Subsequent developments
Date:
25 May 1870
Translated by:
Tony Weir
Copyright:
Professor B. S. Markesinis

The Court:

In view of articles 1101 and 1108 Code Napoléon:

Given that the decision under attack held the applicant bound by a subscription made in his name for twenty shares in the Société des raffineries nantaises simply because he never replied to a letter from Robin & Co., the bank acting as agent for the placing of the shares, intimating to him that his name had been placed on the list of subscribers and that they had paid the first instalment on his behalf;

But given that in law the silence of a party allegedly bound cannot by itself, in the absence of all other factors, prove the existence of the alleged obligation;

Given that in holding otherwise the Court of Appeal violated the texts cited above;

For these reasons QUASHES the decision below.

Subsequent developments

This note on subsequent developments reflects the legal situation as of October 2004.

Civ 25 May 1870 [Dalloz Périodique 1870, I, 257]: "The silence of a party cannot create an obligation for him in the absence of any other circumstance. In particular a person does not incur obligations as a subscriber for shares by leaving unanswered a letter by which a banker informed him that he had entered him on the subscription list for shares which the banker was selling, and that he had debited him for the amount of the first instalment". Cour de cassation, 1 December 1969 [Bull no 375, Dalloz 1970, p 422]: "The judges of the lower courts consider in the exercise of their sovereign powers that an agreement for assistance has been formed between two parties, and they do not have to find express consent on the part of the person assisted since, when the offer is made in his exclusive interest, its recipient is presumed to have accepted it. They were therefore correct in law to accept that the assisted person is obliged to compensate for the harm suffered by the person who gave him gratuitous assistance". Case law maintained.

The principle under which silence does not, on its own, amount to acceptance has been reaffirmed several times by the Cour de cassation (cf in particular Civ 1, 16 April 1996, Bull, no 181). At the same time, however, it made a certain number of exceptions to it, certain judgments having considered that silence amounted to acquiescence because of prior business relationships between the parties, or when they both belonged to a professional environment where there are customs which confer such a meaning on this silence (Com 9 January 1956, Bull no 17) or, finally, when the offer was made in the exclusive interest of the person to whom it was addressed (Cass req 29 March 1938). It is in this way that case law (Civ 1, 1 December 1969, criticised on this point by legal writers) has admitted the existence of an agreement for assistance in a case where a garage mechanic had been injured by the explosion of a motorbike while he was assisting the rider, who had accepted the rescuer's offer by his silence. For Bruno Petit (Jurisclasseur numérique "civil", 1997), the principle according to which a service given to another gratuitously does not constitute performance of a contract is far from being absolute: "it all depends in the end on the intention of the parties in the way that this is assessed by the judges of the lower courts in their sovereign powers of appreciation". These judges recognise quite frequently "the existence of an agreement for assistance the principal effect of which, in truth, is to oblige the person assisted to compensate for the harm which the author of the act of kindness may have suffered as a result. This is particularly so in the case of an act of rescue, when the rescuer has been the victim of his own self-sacrifice. Indemnification, which could nevertheless be better based on the rules of gestion d'affaires (intervention in an other's affairs), is frequently justified by discovery of an agreement for assistance, artificial though this designation sometimes is (Civ 1, 1 December 1969; CA Paris, 25 January 1995). The same solution is found where any kind of gratuitous assistance is involved (Civ 1, 27 January 1993, Bull no 42).

Translation by Mr Raymond Youngs

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