FrançaisA recent judgment of the Court of Cassation must challenge sellers and real estate agents of the risks of a promise of sale that failed.
In its decision of October 10, 2018 (No. 16-21044), the Court of Cassation ordered a buyer to pay the real estate agent his commission when the promise of sale was not successful and that the authentic deed before notary has never been signed.
The buyer who did not go voluntarily at the end of the sale was therefore ordered to repay the commission of the real estate agent even though the mandate was signed with the seller.
It bases its decision in a very simple way: it is not possible to deprive the real estate agent of his commission when there is agreement on the thing and on the price and that the failure of the final sale results from the fault of the purchaser.
The reasons for this decision are threefold:
-Article 6 of the Hoguet Law provides for a remuneration right once an agreement is actually concluded and recorded in a single written act containing the parties’ commitment. It is not particularly a question of definitive act of sale.
-The promise of sale had no suspensive condition and the failure of it was the sole fault of the purchasers.
-The sales mandate did not stipulate that the commission was conditioned on the signing of a deed.
This decision should alert all parties to the sale:
Real estate agents have an interest in writing their mandate correctly by not making the signature of the deed of sale a condition of their remuneration.
-Sellers must read carefully the mandates they sign because the solution applies to them if the sale fails through their fault.
-Accurators must be aware of the seriousness of the commitment of a promise to purchase and therefore write them with great care.
Notice to all these people: you can also consult a lawyer in real estate law;)
