2023-12-04 08:16:56
The promise to purchase a property generally provides for a “suspensive condition”: that the purchaser obtains, within a certain period of time, a loan which allows financing. If the banks refuse him, the suspensive condition is not met (“accomplished”, in legal terms), and he recovers the immobilization compensation that he left to the seller.
If the banks give him the loan, but he doesn’t follow through, what happens? This is the question posed by the following case. On May 22, 2018, Mr. “of a maximum amount of 414,000 euros, repayable over twenty-five years, at the rate of 2% per year, excluding insurance”.
The XYs go to a broker who, taking into account their debt capacity, only requests 407,000 euros – or 7,000 euros less than expected. On June 14, 2018, the Banque Populaire issued a favorable opinion, but the XY refused its offer. They ask him for the 414,000 euros. When it refused them, on July 20, 2018, they renounced their purchase and demanded restitution of the immobilization compensation, of 38,600 euros.
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The seller objects. He considers that they were obliged to accept the bank’s offer, ” according to “ to the contract, since it is slightly lower than the amount « maximum » of 414,000 euros. He believes that they have “prevented the accomplishment” of the suspensive condition, so that the latter must be considered as fulfilled, under thearticle 1304-3 of the civil code.
Ceiling
The one states that “the suspensive condition is deemed fulfilled if the person who had an interest in it prevented its fulfillment”. It sanctions negligent purchasers, who have not carried out on time approaches requiredor whose requests are not “compliant” to the provisions of the suspensive condition.
The case law (January 16, 2013, 11-26.557notably) considered as “non-compliant” requests for higher amounts, destined to be refused by banks. But not those of a lower amount (January 30, 2020 18-25.970 or January 14, 2021 20-11.224).
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The XY replied that their request was compliant and that it was not their fault if it was refused. The Créteil judicial court found them wrong, but the Paris Court of Appeal overturned its decision, October 22, 2021. She judges that“they were not required to accept less funding than they considered necessary” : the fixing, in the promise of sale, of an amount « maximum »could not ” constrain “ buyers to accept an offer of a lower amount. This term “maximum” must be understood as a ceiling, which the purchaser does not have the right to exceed.
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