Bull. Civ. 1980.III, no. 73
Case Association de Vacances et de Loisirs de La Vallee de l’Huveaunev. Epoux Sapiega

Given that according to the findings below (Toulouse, 27 July 1978) Vacances et Loisirs culturels de la Vallée de l’Huveaune demanded the repair of the property it had leased from the Sapiegas by notarial act dated 25 May 1972 and that the Sapiegas appealed on the ground that the lease signed by their agent was void because it contained a clause not authorised by the termsof the agency;

Given that the lessee criticises the decision for avoiding the lease instead of applying the prescriptive period of article 1304 Code civil which it raised against the lessor’s claim, whereas, according to the complaint, the allegedly vitiated consent of the lessors did not go to the nature of the transaction nor to its object but only to a particular clause in it, and that contrary to the view of the court of appeal which misconstrued their pleadings the Sapiegas did not allege a total lack of consent but only a relative nullity subject to the prescriptive period of article 1304 Code civil which had already run; and furthermore an error is not a ground of nullity unless it relates to the very substance of the property which is its object and that this was not the case here, in that the mistake invoked by the Sapiegas went neither to the nature of the transaction nor to its object but merely to the clause relatingto payments for improvements made during the period of the lease;

But given the findings that the clause in the notarial act whereby the lessor was to indemnify the lessee for all the improvements it made to the propertywas entirely contrary to the terms of the agency which the lessors had givento their agent, that no clause should be included permitting the lessee to claimany sum in respect of additions, improvements or modernisations made during thelease, this being especially essential since the buildings involved were oldand old-fashioned, ill-suited to use as holiday homes, the court of appeal, whichdid not misconstrue the Sapiegas’ pleadings, was within its sovereign powersin determining that the lessors’ consent was dependent on the inclusionof this clause in the lease, and that consequently it could be inferred fromthe lack of agreement on this term in the lease that the Sapiegas did not givetheir consent to it and that the contract was thus affected by an absolute nullityto which the quinquennial prescriptive period was inapplicable.

For these reasons DISMISSES the application for review of the decision of the Court of Appeal of Toulouse dated 27 July 1978.

Subsequent Developments

This note on subsequent developments reflects the legal situation as of October 2005.

Civ 3, 15 April 1980, Bull no 73 : This solution is criticised by a school of legal writers concerning agency (mandat), on the ground that when an agent exceeds his powers, the result should be not the nullity of the act, but that it cannot be set up against the lessor. It seems to be contradicted by a judgment of the 26 January 1999 (Civ 1, Bull no 30: "in a case where the agency is exceeded, the principal remains bound by what has been done in conformity with the mandate"). It has been asserted that, in default of agreement by the parties about a clause of the lease which is "essential for the equilibrium of the contract" which the judges of the lower courts have recognised as having a determining character, there is a lack of consent entailing absolute nullity of the contract, sanctioned by an action which escapes the five year prescription period. The case law concerning this assertion is sometimes described by a school of legal writers as "vague", if not incoherent (cf Malaurie and Aynes, "Les Obligations", vol II, Cujas, 2001). On the one hand, case law decides that absence of agreement about a clause of a contract essential for its equilibrium has the consequence of absolute nullity of the contract - coming therefore within a thirty year limitation period, and not one of five years - which is, according to the authors mentioned, the classic analysis; on the other hand case law, in close hypotheses, tends sometimes to accept relative nullity, with the effects in relation to prescription and persons who can invoke it which are linked with that (Civ 3, 13 July 1994, pourvoi no 92.14-164 ruling likewise on a lease and absence of consent).

Translation by Raymond Youngs

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