Presentation: A bill of sale may be subject to a penalty clause ie a clause allowing to contract in advance how much one should pay the other for failure to carry decided. But when the act to lapse, what about the criminal case? For the first time, the Commercial Chamber of the Supreme Court in a ruling dated March 22, 2011 ruled on the matter. She says "the lapse of an act does not affect the penalty clause stipulated therein and must take effect in case of failure of one of the offending parties."
A bill of sale may be subject to a penalty clause ie a clause allowing the contract to advance the amount that one must pay to another in case of failure to implement agreed.
But when the act to lapse, what about the criminal case?
For the first time, the Commercial Chamber of the Supreme Court in a ruling dated March 22, 2011 ruled on the matter.
She says "the lapse of an act does not affect the penalty clause stipulated therein and must take effect in case of failure of one of the offending parties."
In this case, a shareholder and director of a corporation has promised on its behalf and that of other shareholders to transfer shares in a SCI IBS.
The company undertook to pay a sum of 252,000 euros for the shares subject to the amount of net assets. The price must be paid no later than February 20, 2007.
At that time, the IBS does not pay the price. The shareholders then ask either judicially pronounced lapse of the sale.
The IBS who had to buy shares is put into liquidation.
The Court of Appeal decides to lapse and refused to enforce the penalty clause because the contract containing the penalty clause had become obsolete.
The Court of Cassation quashed the appeal decision. The invalidity of an act does not affect the penalty clause stipulated therein and must take effect in case of failure of the offending party.
So the penalty clause survives the lapse of the act. The penalty clause inserted in the agreement to sell continued to be applicable.
The Supreme Court devotes so that decision through the autonomy of the penalty clause vis-à-vis the act of the door.
This is the first time that the Commercial Chamber of the Supreme Court ruling on the question of the survival of the penalty clause in the lapse of the act.
In deciding so, the Commercial Chamber of the Supreme Court decide the wake of the 3rd Civil Chamber had already ruled.
Indeed, already in two decisions of the Third Civil Division, the Supreme Court had held that:
"The lapse did not affect the penalty clause that would specifically effect in case of non-repetition of the sale in the authentic form within the stipulated period, following the failure of the offending party" (Cass. third civ., June 9, 2010, No. 09-15361, FS-P + B: Jurisdata No. 2010-009368; Cass. 3rd civ., Jan 11, 2011, No. 10-10038).
The decision in 2011 of the Commercial Chamber of the Court of Cassation by the contract to produce all its effects and ensuring the effectiveness of a penalty clause, draws heavily on two previous decisions of the Civil Division.
The judges seem to spend, therefore, the autonomy of processual clauses in case of nullity of the act.
03/13/2011
