Civ.1 642 Pourvoi no. 99-17.520 Case Lefebvre/Segard
07 May 2002
Translated by:
Mr. Trevor Brown and Miss Ann Yazikov.
Professor B. S. Markesinis

THE COURT at its public hearing of 9 March 2002…….

In respect of the only ground, considered in its two limbs,

Given that (1) the spouses Segard undertook to sell a house to the spouses Lefebvre subject to a condition precedent relating to the obtaining of a loan of 700,00 francs for a maximum period of 20 years; (2) at the same time the latter paid to a stakeholder the sum of 50,000 francs; (3) having sent to the vendors certificates of four banks refusing the loan, the purchasers asked for the repayment of the sum they had paid, to which the vendors objected;

Given that the spouses Lefebvre criticise the judgement appealed against (Douai, 17 May 1999) for having fixed at 40,000 francs the amount to be paid to the spouses Segard and having decided that the balance should be reimbursed to them, while:
(1) by finding, in order to refuse the return of the deposit to the purchasers, that (a) the certificates of the banks which had refused their applications did not enable one to know what information had been given to the banks in question, which was the basis of the refusals which were difficult to explain in view of their resources; (b) the spouses Lefebvre did not put the court in a position to be sure that their application was accompanied by information which was precise, complete and exact in respect of their financial situation, the court of appeal seems to have breached articles 17 of the Law of 13 July 1979( now Article L. 312-16 of the Consumers’ Code), 1178 and 1315 of the Civil Code;

(2) by fixing the sum to be paid to the spouses Segard at 40,000 francs and deciding that the whole of the balance should be returned to the spouses Lefebvre, without taking into account the claim for reimbursement of 13 July 1979, the court of appeal seems to have breached article 17 of the Law of 13 July 1979, now article L. 316-16 of the Consumers’ Code;

But given that (1) the burden is upon the purchaser to show that he has effectively applied for a loan which conforms with the characteristics set out in the contract; (2) in case of failure to apply for such a loan, the condition precedent must be deemed to be fulfilled pursuant to Article 1178 of the Civil Code; (3) having found that the spouses Lefebvre had not produced the loan applications made to the banks, but, apart from some documents which did not give a true picture of their revenues at the date of the contract, relating as they did to a period when only the husband was working, certificates from the banks which had refused the loan applications, all of which made it impossible to know what information they had given to these banks which led to the rejection of the applications, the court of appeal was quite correct, without reversing the burden of proof, to find as it did; (4) the ground, ill-founded in its first limb,is inoperative in its second criticism, relating to the increase of interest rates, the provision invoked not being capable of application since the condition subsequent was deemed to be realised;


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