Bull. Civ. 2000.III, no. 171, p.119 Case Société Carrières de part Brandefert v. Palaric
15 November 2000
Translated by:
Tony Weir
Professor B. S. Markesinis

Bull. Civ. 2000.III, no. 171, p.119
Case Société Carrières de part Brandefert v. Palaric

Given that according to the judgment under attack (Rennes, 8 December 1998) M. and Mme Palaric-Le Coent bound themselves by documents of 7 and 13 May 1996 to convey a parcel of land to M. Moysan and grant him the right to substitute any legal or natural person of his choice; that when this was not confirmed by notarial deed, as was to be done by 1 July 1996 at the latest, the firm Carrières de Brandefert, as substitute for M. Moysan, brought suit against the Palaric-Le Coents to have themselves declared owner of the land, whereupon the Palaric-Le Coents asserted that the sale was void for fraud;

Given that the firm criticises the judgment for dismissing its claim, whereas, according to them,

1. fraud is ineffective unless it causes a mistake, which is not the case when a purchaser buys property which has been offered for sale through a notary without saying what he intends to use it for -- here to open a quarry;

2. that the obligation of good faith which is incumbent on all those negotiating a contract does not require the purchaser to notify the seller of the qualities of the property sold nor of the use to which he intends to put it, so here the firm was not bound to tell the sellers that the land could be used as a quarry (violation of articles 1134 and 1176 Code civil);

3. that the inclusion of a clause permitting substitution of creditors, which is perfectly lawful, does not betoken any fraud on the part of the effective purchaser who is under no obligation to reveal his identity to sellers who agree to such a clause;

But given that the court of appeal was entitled to find that fraud was proved in view of their well-supported holdings that the sellers were unaware of the nature of the subsoil under their land, that when the deed of sale was signed Moysan did not say for whom he was acting, that the way the Carrières de Brandefert lurked behind a front man, actually its managing director, was not excused by the substitution clause when it was fully aware of the high quality of the subsoil and kept quiet about its plans to exploit the land until the deed was signed, and indeed stated in the draft deed which it was to submit to the sellers that the building was to be used as a dwelling and the rest of the land for agricultural purposes;

From which it follows that the application for review is baseless;

For these reasons DISMISSES the application for review.

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