Cour de cassation Third Civil Chamber Application for Review No. 03-12639 Case X… v L’Etoile Commerciale
22 September 2004
Translated by:
J. Trevor Brown
Professor B. S. Markesinis

Given, according to the judgement under attack (Versailles, 23 January 2003), that (i) Monsieur X…. entered into a building contract with BMI, a corporation, now in liquidation, pursuant to which the works were to be carried out in two phases; (ii) L’Etoile Commerciale, a corporation, delivered at the request of BMI a guarantee to cover certain retention moneys; and (iii) by reason of the existence of bad workmanship, M. X… put L’Etoile Commerciale on notice not to discharge the guarantee, and then brought action against for payment pursuant to the guarantee;

Concerning the first ground:
In view of Article 1792-6 of the Civil Code;

Given that (i) the act of taking possession (“réception”) is that by which the owner of a building under construction states that he accepts the building with or without reservations, (ii) such act occurs, at the request of whichever of the parties is the more active, either amicably or, failing that, through the courts; and (iii) it occurs with the participation of both parties (“contradictoirement”);

Given that, in order to hold that M. X… had taken possession of the second tranche of works on 31 August 1997, the judgement finds that the owner of the building, having entered on the premises on 31 August 1997, petitioned, on 4 September, for an expert examination, and this, as soon as asked for, amounts to a formal written minute of taking possession involving both parties;

Given that, in so finding, without showing clearly the existence of an unequivocal intention by the owner of the building to accept it, the Appeal Court breached the text cited above;

And concerning the second ground:

In view of Article 1 of the Law of 16 July 1971;

Given that stage payments made towards the final price of building contracts covered by Article 1779-3 of the Civil Code may be reduced by retentions which may not exceed 5% of each such payment and which constitute the contractual guarantee for the performance of the works, in order satisfy, as the case may be, reservations made by the owner of the building when taking possession thereof;

Given that, in order to order L’Etoile Commerciale to pay an amount equal to the retentions so made, the judgement finds that the latter cover, on the one hand, bad workmanship which has been the subject of reservations, works not yet done, and works to be redone pursuant to the ten-year warranty, and, on the other hand, extra expense corresponding to the intervention of a surveyor called by the building owner;

Given that, in so finding, whereas the retention moneys and the joint and several guarantee are intended to protect the owner of the building against the risk of non-performance or of faulty performance of the contractual building works, such failures having been the subject of reservations upon taking possession, excluding any supplementary expenditure, the Appeal Court breached the text mentioned above;



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