In view of article 1116 Code civil:

Given that on 26 May and 6 July 1989, according to the decision under attack (Aix, 20 May 1998), two deeds handed to M. Gas, a notary, documented the sale to M. Plessis by Errera (SCI) of a building for use as a hotel and of the business it operated on the premises by the firm Hôtel Le Galliéni (HLC); that after an earlier decision acceding to the request of SCI and HLC that the transfers be confirmed, M. Plessis sued them first for the avoidance of the sales for fraud and for damages from M. Gas, and on appeal principally for the reduction of the price and subsidiary damages, the claim for annulment being now secondary;

Given that the reason given by the court below for rejecting M. Plessis’ claim for annulment of the contract was that his mistake was inexcusable, and that he could not found on the hotel’s lack of an operating licence or its breach of safety regulations since in view of his profession he was under a particular obligation to ascertain the facts regarding the administrative aspects of the business, which a few simple questions put to the vendors would have revealed.

Given that in so deciding for reasons which do not exclude the possibility of fraudulent concealment on the part of the vendors which, were it established, would, as always, excuse the resulting mistake, the court of appeal violated the text cited above;

On the third ground of the application for review:

In view of article 1382 Code civil:

Given that the decision below dismissed M. Plessis’ claim for damages against M. Gas on the ground that the notary played no part until the parties were already bound to the transfers by their signature of the agreement of 26 May and that since the transfers which had already been rendered definitive the document which M. Gas drafted on 6 July 1989 had no effect;

But given that in so deciding when it is the duty of a notary who draws up a document of sale to give advice and ensure the validity and effectiveness of the documents produced with his assistance, the court of appeal violated the text cited above.

For these reasons QUASHES, except in so far as it declared inadmissible, as having been raised only on appeal, M. Plessis’ claim for the reduction of the price and associated damages, the decision rendered on 20 May 1998 by the Court of Appeal of Aix-en-Provence and remands the case to the Court of Appeal of Nîmes.

Subsequent Developments

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

Civ 3, 21 February 2001, Bull no 20: The solution expressed by this judgment is not completely new, but it is new in the sense that it is clear and distinct. A judgment of the 23 May 1977 (Civ 1, Bull no 144) had already approved a court of appeal decision accepting that mistake on the part of purchasers provoked by the silence of the sellers' agent (mandataire) assumes the character of dol; this fact alone establishes that the mistake in question is excusable. There is no later judgment by the Cour de cassation confirming or contradicting the terms of the judgment of the 21 February 2001. At the level of the lower courts, this solution is found in a judgment of the Versailles court of appeal of the 31 May 2002 and of the Pau court of appeal in a judgment of the 7 October 2002, the first concerning the transfer of shares, and the second relating to a tenancy agreement.

Translation by Raymond Youngs