Section
III – Of the Delegation of Parental
Authority
Art. 376
No relinquishment or transfer relating
to parental authority may be effective, unless under a judgment in
the cases specified below.
Art. 376-1
A "family causes judge" (Act n°
93-22 of 8 Jan. 1993) may, where he is called to rule upon
"the terms of exercise of parental authority or upon the education
of a minor child or where he decides to entrust a child to a third
person" (Act n° 87-570 of 22 July 1987), take into
consideration the covenants which the father and mother may have
freely concluded between them on this subject, unless one of them
adduces serious reasons which allow him or her to revoke his or
her consent.
Art. 377
(Act n° 2002-305 of 4 March
2002)
The father and mother, jointly or
separately, may, where circumstances so require, seize a judge for
the purpose of having delegated all or part of the exercise of
their parental authority to a third person, member of the family,
trustworthy near relation, institution approved for receiving
children or départemental Children's aid
service.
In case of plain disinterest or where the parents are unable to
exercise all or part of parental authority, the individual, the
body or the départemental Children's aid service who
received the child may also seize the judge for purpose of having
delegated to them parental authority wholly or partially. In all
cases referred to in this Article, both parents shall be called in
the case. Where the child concerned is the subject of a measure of
educational assistance, delegation may occur only after opinion of
the juvenile judge.
Art. 377-1
(Act n° 2002-305 of 4 March 2002)
Delegation, total or partial, of
parental authority results from the judgment handed down by the
family causes judge.
However, a judgment of delegation may provide, for the needs of
education of a child, that the father and mother, or one of them,
shall share all or part of the exercise of parental authority with
the third person delegatee. That division shall require consent of
the parent or parents in so far as they exercise parental
authority. The presumption in Article 372-2 shall apply with
regard to transactions performed by the delegator or delegators
and the delegatee.
The judge may be seized of the difficulties that a shared exercise
of parental authority may produce by the parents, one of them, the
delegatee or the Government procurator. He shall rule in
accordance with the provisions of Article 373-2-11
.
Art. 377-2
In all cases, delegation may come to
an end or be removed by a new judgment, where new circumstances
are adduced.
In the case where the father and mother are granted the return of
the child, the "family causes judge" (Act n° 93-22 of 8 Jan.
1993) shall place on them, unless they are necessitous,
reimbursement of all or part of the expenses of
support.
[deleted]
Art. 377-3
The right to consent to the adoption
of a minor may never be delegated.
Section IV
– Of the Total or Partial Withdrawal of Parental
Authority
Art. 378
By express provision of a criminal
judgment, parental authority may be "totally withdrawn" (Act n°
96-604 of 5 July 1996) from the father and mother who are
sentenced either as perpetrators, co-perpetrators or accomplices
of a serious or ordinary offence committed on the person of their
child, or as co-perpetrators or accomplices of a serious or
ordinary offence committed by their child,.
That "withdrawal" (Act n° 96-604 of 5 July 1996) may be
applied to ascendants other than the father and mother as regards
that part of parental authority which they may have over their
descendants.
Art. 378-1
The father and mother who "apart from
any criminal sentence, either by maltreatment, or by usual and
excessive consumption of alcoholic beverages or drug addiction, or
by a notorious misconduct or criminal activities" or by lack of
care or want of guidance, obviously endanger the security, health
or morality of the child, "may be totally withdrawn parental
authority" (Act n° 96-604 of 5 July
1996).
The father and mother who, for more than two years, have
intentionally abstained from exercising the rights and fulfilling
the duties they retained under Article 375-7, may likewise "be
totally withdrawn parental authority" (Act n° 96-604 of 5 July
1996).
An action "for total withdrawal of parental authority" (Act n°
96-604 of 5 July 1996) shall be brought before the tribunal
de grande instance, either by the Government procurator's
office, or by a member of the family or by the child's guardian.
Art. 379
(Act n° 96-604 of 5 July 1996)
A total withdrawal of parental
authority ordered under one of the two preceding Articles affects
by operation of law all the attributes, patrimonial as well as
personal, connected with parental authority; in the absence of
other determination, it extends to all minor children already born
at the time of the judgment. It involves, for the child,
dispensation from maintenance obligation, in derogation from
Articles 205 to 207, unless otherwise provided by the judgment of
withdrawal.
Art. 379-1
(Act n° 96-604 of 5 July 1996)
Instead of a total withdrawal, the
judgment may be confined to ordering a partial withdrawal of
parental authority, limited to the attributes it specifies. It may
also decide that a total or partial withdrawal of parental
authority will be effective only with regard to certain children
already born.
Art. 380
When it orders "a total or partial
withdrawal of parental authority or" (Act n° 96-604 of 5 July
1996) of the right of custody, the court seized shall, where
the other parent is dead or has lost the exercise of parental
authority, either "designate a third person to whom the child will
be temporarily entrusted" (Act n° 87-570 of 22 July 1987)
with the responsibility of requesting the organization of a
guardianship, or entrust the child to the Children's aid service.
It may take the same measures where parental authority has
devolved on one of the parents through the effect "of a total
withdrawal of parental authority ordered" (Act n° 96-604 of 5
July 1996) against the other.
Art. 381
The father and mother who have been
the subject "of a total withdrawal of parental authority" (Act
n° 96-604 of 5 July 1996) or of a withdrawal of rights for one
of the grounds provided for in Articles 378 and 378-1, may, by way
of a petition, gain from the tribunal de grande
instance, by proving new circumstances, the restitution to
them, in whole or in part, of the rights of which they were
deprived.
An application for restitution may be filed only one year at the
earliest after the judgment ordering "the total or partial
withdrawal of parental authority" (Act n° 96-604 of 5 July
1996) became irrevocable; in case of dismissal, it may be
renewed only after a new period of one year. No application is
admissible where, before the filing of the petition, the child has
been placed for the purpose of adoption.
Where restitution is granted, the Government procurator's office
shall, if there is occasion, apply for measures of educational
assistance.
CHAPTER II
- OF PARENTAL AUTHORITY WITH REGARD TO THE PROPERTY OF A
CHILD
Art. 382
The father and mother have, subject to
the distinctions that follow, the administration and enjoyment of
the property of their child.
Art. 383
(Act n° 85-1372 of 23 Dec.
1985)
Statutory administration shall be
exercised jointly by the father and mother where they exercise in
common parental authority and, in the other cases, under judicial
supervision, either by the father or by the mother, according to
the provisions of the preceding Chapter.
Statutory enjoyment is attached to statutory administration: it
belongs either to the two parents jointly, or to the one of the
father and mother who is responsible for the administration.
Art. 384
The right of enjoyment comes to an end
:
1° As soon as the child has completed "sixteen years" (Act n°
74-631 of 5 July 1974), or even earlier when he contracts
marriage;
2° Through the causes which put an end to parental authority, or
even, more particularly, through those which put an end to
statutory administration;
3° Through the causes which involve extinction of any
usufruct.
Art. 385
The charges of such enjoyment
are:
1° Those to which usufructuaries are liable in
general;
2° The feeding, supporting and educating the child, according to
his wealth;
3° Debts which burden a succession received by the child to the
extent that they must be discharged out of the
income.
Art. 386
That enjoyment may not take place for
the benefit of a surviving spouse who omits to make an inventory,
authentic or under private signature, of property owed to a
minor.
Art. 387
Statutory enjoyment does not extend to
property acquired by a child through his work, or to that which is
donated or bequeathed to him under the express condition that the
father and mother may not have enjoyment of them.
TITLE X
OF MINORITY, OF GUARDIANSHIP AND OF
EMANCIPATION
CHAPTER I - OF
MINORITY
Art. 388
(Act n° 74-631 of 5 July 1974)
A minor is an individual of either sex
who has not yet reached the full age of eighteen years.
Art. 388-1
(Act n° 93-22 of 8 Jan. 1993)
In all proceedings relating to him, a
minor capable of discernment may, without prejudice to the
provisions as to his intervention or consent, be heard by the
judge or the person appointed by the judge for that
purpose.
Where a minor so requests, his hearing may be denied only
by a judgment setting out specially
the grounds on which it is based.
. He may be heard
alone, with a counsel or a person of his choice. Where that choice
does not appear to be consonant with the welfare of the child, the
judge may appoint another person.
The hearing of a minor does not confer on him the status of a
party to the proceedings.
Art. 388-2
(Act n° 93-22 of 8 Jan. 1993)
Where, in a lawsuit, the interests of
a minor appear to be in conflict with those of his statutory
representatives, the judge of guardianships in the manner provided
for in Article 389-3, or, failing which, the judge who is seized
of the case shall appoint an ad hoc administrator who has
the responsibility to represent him.
CHAPTER II - OF
GUARDIANSHIP
(Act n° 64-1230 of 14 Dec.
1964)
Section I - Of the Cases Where either Statutory
Administration or Guardianship Takes Place
Art. 389
(Act n° 85-1372 of 23 Dec.
1985)
Where parental authority is exercised
in common by the twol parents, they are statutory administrators.
In the other cases, statutory administration belongs to the parent
who exercises parental authority.
Art. 389-1
(Act n° 85-1372 of 23 Dec.
1985)
Statutory administration is outright
where the two parents exercise parental authority in
common.
Art. 389-2
(Act n° 85-1372 of 23 Dec.
1985)
Statutory administration is placed
under supervision of the judge of guardianships where one or the
other of the two parents is dead or is "deprived of the exercise
of parental authority" (Act n° 2002-305 of 4 March 2002);
it shall be likewise "in case of unilateral exercise of parental
authority" (Act n° 2002-305 of 4 March
2002).
Art. 389-3
A statutory administrator acts as an
agent for the minor in all civil transactions, except cases where
the law or usage authorizes minors to act for
themselves.
Where his interests are in conflict with those of the minor, he
must have an administrator ad hoc appointed by the judge of
guardianships. "In the absence of any suit of the statutory
administrator, the judge may undertake that appointment on request
of the Government procurator's office, of the
minor himself or of his own motion" (Act n° 93-22 of 8 Jan.
1993).
Property donated or bequeathed to a minor under the condition that
it shall be administered by a third person is not subject to
statutory administration. That third person administrator has the
powers conferred on him by the gift or will; failing which, those
of an administrator under judicial supervision.
Art. 389-4
(Act n° 75-617 of 11 July
1975)
In outright statutory administration,
each of the "parents" (Act n° 85-1327 of 23 Dec. 1985) is
deemed, with regard to third parties, to have received from the
other the power to do alone the transactions for which a guardian
would not need any authorization.
Art. 389-5
(Act n° 85-1372 of 23 Dec.
1985)
In outright statutory administration,
the parents perform together the transactions that a guardian
could do only with the authorization of the family council.
Failing agreement between the parents, a transaction must be
authorized by the judge of guardianships.
Even by mutual agreement, the parents may neither sell amicably,
nor contribute to a partnership an immovable or a business concern
belonging to the minor, nor contract loans on his behalf, nor
waive a right for him without the authorization of the judge of
guardianships. The same authorization is required for an amicable
partition and the statement of liquidation shall be approved in
the way provided for in Article 466.
Where a transaction causes loss to the minor, the parents are
liable for it jointly and severally.
Art. 389-6
(Act n° 75-617 of 11 July
1975)
In statutory administration under
judicial supervision, an administrator must provide himself with
an authorization from the judge of guardianships in order to
perform the transactions that a guardian may do only with an
authorization.
He may do the other transactions alone.
Art. 389-7
(Act n° 70-459 of 4 July 1970)
As to other issues, the rules of
guardianship shall apply to statutory administration, with the
adjustments resulting from the latter's being deprived of family
council and supervisory guardian, and without prejudicing, on the
other part, to the rights that the father and mother hold under
Title Of Parental Authority in particular as regards the
education of the child and the usufruct of his
property.
Art. 390
A guardianship must be opened where
the father and mother are both dead or are "deprived of the
exercise of parental authority" (Act n° 2002-305 of 4 March
2002).
It must also be opened with regard to an illegitimate child where
neither the father nor the mother have voluntarily acknowledged
it.
There is no derogation to specific statutes governing the
Children's aid service.
Art. 391
In the case of statutory
administration under judicial supervision, the judge of
guardianships may at any time, either of his own motion, or at the
request of relatives by blood or marriage or of the Government
procurator's office, decide to open guardianship, after hearing or
summoning the statutory administrator, except in emergency. The
latter may not, from the application and until final judgment,
except in cases of emergency, enter into any transaction that
would require the authorization of the family council were a
guardianship opened.
The judge of guardianships may also decide, but only for serious
reasons, to open a guardianship in the case of an outright
statutory administration.
In both cases, where a guardianship is opened, the judge of
guardianships shall convene the family council which may either
name the statutory administrator as guardian, or designate another
guardian.
Art. 392
Where an illegitimate child happens to
be acknowledged by one of his parents after the opening of a
guardianship, the judge of guardianships may, on request of that
parent, decide to substitute statutory administration to
guardianship under Article 389-2.
Section II - Of the Organization of a
Guardianship
§ 1 - Of
the Judge of Guardianships
Art. 393
The office of judge of guardianships
is exercised by a judge of the tribunal d'instance in whose
territorial jurisdiction the minor has his
domicile.
Art. 394
Where the minor's domicile is
transferred to another place, the guardian shall forthwith give
notice of it to the judge of guardianships previously seized. The
latter shall forward the file of the guardianship to the judge of
guardianships of the new domicile. Mention of that forwarding
shall be kept in the court office of the tribunal
d'instance.
Art. 395
A judge of guardianships shall
exercise a general supervision over statutory administrations and
guardianships of his jurisdiction.
He may convene statutory administrators, guardians and other
organs of guardianship, require clarifications from, make
observations to, and grant injunctions against
them.
He may sentence to the fine provided for in the Code of Civil
Procedure those who, without lawful excuse, did not comply with
his injunctions.
Art. 396
The proceedings before a judge of
guardianships shall be regulated by the Code of Civil
Procedure.
§ 2 - Of
Guardians
Art. 397
The individual right to select a
guardian, relative or not, belongs only to the last dying of the
father and mother, where he or she has kept, on the day of death,
the exercise of statutory administration or
guardianship.
Art. 398
That appointment may be made
only in the form of a will or of a special declaration before a
notaire.
Art. 399 and 400
[repealed]
Art. 401
A guardian selected by the father or
mother may not be compelled to accept guardianship, unless he is
furthermore within the class of the persons to whom, failing that
special selection, the family council might have assign the duty
thereof.
Art. 402
Where no guardian was selected by the
last dying of the father and mother, guardianship of a
[deleted, Act n° 2002-305 of 4 March 2002] child is
conferred on the one of the ascendants who is of the closest
degree.
Art. 403
In case of concurrence between
ascendants of the same degree, the family council shall designate
the one among them who will be guardian.
Art. 404
Where there is neither testamentary
guardian nor ascendant guardian, or where the one who was
designated in that capacity happens to cease his office, a
guardian shall be given to the minor by the family
council.
Art. 405
That council shall be convened by the
judge of guardianships, either of his own motion or on submission
therefor made to him by relatives by blood or marriage of the
father and mother, creditors or other parties concerned or the
Government procurator's office. Any person may complain to the
judge against the fact that will give occasion to the appointment
of a guardian.
Art. 406
A guardian shall be designated for the
duration of a guardianship.
The family council may however provide for his replacement in the
course of the guardianship where serious circumstances so require,
without prejudice to cases of excuse, incapacity or
removal.
§ 3 - Of Family
Council
Art. 407
A family council is composed of four
to six members, including the supervisory guardian, but not the
guardian or the judge of guardianships.
They shall be designated by the judge for the duration of the
guardianship. The judge may, however, without prejudice to
Articles 428 and following, provide of his own motion for the
replacement of one or several members in the course of
guardianship in order to respond to changes which may occur in the
condition of the parties.
Art. 408
The judge of guardianships shall
select the members of the family council among the relatives by
blood or marriage of the father and mother of the minor, in
appraising all the circumstances of the case: nearness of degree,
place of residence, ages and abilities of the parties
concerned.
He must avoid, as far as possible, leaving one of the two lines
without representation. But he shall have regard, above all, to
the usual relations which the father and mother had with the
various relatives by blood or marriage, as well as to the interest
that those relatives have shown or appear to be able to show to
the person of the child.
Art. 409
The judge of guardianships may also
call upon, to form part of the family council, friends, neighbours
or any other persons whom he considers able to take interest in
the child.
Art. 410
A family council is convened by the
judge of guardianships. It shall be so where convening is required
either by two of its members, or by the guardian or supervisory
guardian, or by the minor himself provided he is of the full age
of "sixteen years" (Act n° 74-631 of 5 July
1974).
(Act n° 98-381 of 14 May 1998) A family council shall also
be convened on the request of a minor under sixteen and capable of
discernment, unless otherwise decided with particular reasons by
the judge.
Art. 411
Notice convening a meeting must
be served at least eight days before the meeting.
(Act n° 98-281 of 14 May 1998) Previously to that meeting,
the judge shall hold a hearing of the minor capable of discernment
in the way provided for in Article 388-1.
Art. 412
Members of the family council are
obliged to attend meetings in person. Each one, however, may be
represented by a relative by blood or marriage of the father and
mother of the minor, where that relative is not already, in his
own name, a member of the family council. A husband may represent
his wife or reciprocally.
Members of the family council who, without a lawful excuse, are
neither present nor validly represented, shall incur the fine
provided for by the Code of Civil Procedure.
Art. 413
Where the judge of
guardianships considers that a judgment may
be handed down without the holding of a meeting being necessary, he
shall notify to each one of the members of the council the text of
the decision to be taken with appropriate
clarifications.
Each of the members shall cast his vote by letter missive within
the period fixed to him by the judge; failing which, he shall
incur the fine provided for by the Code of Civil Procedure.
Art. 414
A family council may deliberate only
where at least half of its members are present or represented.
Where that number is not attained, the judge may, either adjourn
the meeting or, in case of emergency, take the decision himself.
Art. 415
A family council is presided over by
the judge of guardianships, who is entitled to vote with a
casting vote in case of a parity of votes.
The guardian must attend the meetings; he is heard but does not
vote, nor does the supervisory guardian where he represents the
guardian.
(Act n° 98-381 of 14 May 1998) A minor capable of
discernment may, where the judge does not consider it contrary to
his welfare, attend meetings in an advisory capacity. A minor over
the full age of sixteen must be called where the meeting was
convened on his requisition.
In no case may his consent to a transaction discharge the guardian
and the other organs of guardianship from their
liabilities.
Art. 416
Resolutions of a family council are
void where they were obtained by fraud or deception, or where
substantive formalities were omitted.
Invalidity is remedied by a new resolution equivalent to a
confirmation under Article 1338.
An action for annulment may be brought by the guardian, the
supervisory guardian, members of the family council or by the
Government procurator's office, within two years following the
resolution, as well as by the ward become of age or emancipated,
within two years following his coming of age or his emancipation.
Prescription does not run where there was deception or fraud,
until the fact is discovered.
Transactions performed under a nullified resolution are themselves
voidable in the same manner. The period, however, runs from the
transaction and not from the resolution.
§ 4
- Of the Other Organs of Guardianship
Art. 417
The family council, having regard to
the abilities of the persons concerned and the composition of the
patrimony to be administered, may decide that the guardianship
will be divided between a guardian to the person and a guardian to
the property, or that the management of particular property will
be entrusted to a deputy guardian.
Guardians so appointed shall be independent, and not liable to
each other, in their respective functions, unless otherwise
ordered by the family council.
Art. 418
Guardianship is a personal
office.
It does not extend to a guardian's spouse. Where, however, that
spouse intrudes into the management of the ward's patrimony, he or
she becomes jointly and severally liable with the guardian for all
management subsequent to the intrusion.
Art. 419
Guardianship does not extend to a
guardian's heirs. The latter are liable only for the management of
their predecessor; and, where they are adults, they are bound to
continue it until the appointment of a new guardian.
Art. 420
In every guardianship, there shall be
a supervisory guardian, appointed by the family council among its
members.
The functions of a supervisory guardian consist in the supervision
of the management of the guardian and in representing a minor
where his interests conflict with those of the guardian.
Where he observes some mismanagement, he must, on pain of
incurring personal liability, immediately inform the judge of
guardianships of it.
Art. 421
Where a guardian intrudes into the
management before the appointment of a supervisory guardian, he
may be dismissed from the guardianship, if there was fraud on his
part, without prejudice to compensation due to the minor.
Art. 422 [repealed]
Art. 423
Where a guardian is a relative by
blood or marriage of the minor only in one line, the supervisory
guardian shall be taken, as far as possible, from the other line.
Art. 424
A supervisory guardian does not
replace as of right a guardian who died or became under a
disability, or who disclaims the guardianship; but he then shall,
on pain of damages that may result from it to the minor, seek the
appointment of a new guardian.
Art. 425
The office of a supervisory guardian
comes to an end at the same time as that of the guardian.
Art. 426
A guardian may not seek the dismissal
of a supervisory guardian or vote in the family councils that are
convened for that purpose.
§ 5 - Of
the Duties of a Guardian
Art. 427
Guardianship, a protection due to a
child, is a public office.
Art. 428
Save the father and mother in the case
of Article 391, persons to whom age, illness, remoteness,
exceptionally absorbing professional or family activities or a
previous guardianship render that new office particularly heavy,
may be dispensed from guardianship.
Art. 429
Save the father and mother, may be
discharged from guardianship persons who cannot continue to
perform it because of one of the causes provided for by the
preceding Article, where it occurred since the appointment.
Art. 430 and 431
[repealed]
Art. 432
One who was not a relative by blood or
marriage of the father and mother of a minor may not be compelled
to accept a guardianship.
Art. 433
(Act n° 89-487 of 10 July
1989)
Where a guardianship remains vacant,
the judge of guardianships shall remit it to the State if it
concerns an adult, and to the Children's aid service if it
concerns a minor.
Art. 434
Excuses that dispense or discharge
from a guardianship may be extended to a supervisory guardian and
even to members of the family council, but only according to the
seriousness of the cause.
Art. 435 and 436
[repealed]
Art. 437
A family council shall rule on the
excuses of the guardian and the supervisory guardian; the judge of
guardianships on the excuses offered by members of the family
council.
Art. 438
Where an appointed guardian is present
in person at the resolution which remits guardianship to him, he
shall immediately, and on pain of having all subsequent claims
declared non-admissible, offer his excuses on which the family
council shall deliberate.
Art. 439
Where he was not present in person, he
shall, within eight days of notice of appointment being served
upon him, have the family council convened to deliberate on his
excuses.
Art. 440
Where his excuses are rejected, he may
make application to the tribunal de grande instance to have
them accepted; but he is bound to administer temporarily pending
suit.
Art. 441
The various duties of guardianship may
be assumed by any person, without distinction of sex, but with
reservation of the causes of incapacity, exclusion, dismissal or
challenge expressed below.
Art. 442
Are incapable of the various duties of
guardianship:
1° Minors, save the father or mother;
2° Adults under guardianship, insane persons and adults under
curatorship.
Art. 443
Are excluded or dismissed by operation
of law from the various duties of guardianship:
1° Those who were sentenced to an afflictive or infamous
punishment or to whom exercise of the duties of guardianship was
forbidden under Article 42 [131-26] of the Penal
Code.
They may, however, be admitted to the guardianship of their own
children, upon assent of the family council.
2° Those who have been deprived of parental
authority.
Art. 444
May be excluded or dismissed from the
various duties of guardianship people of notorious misconduct and
those whose improbity, usual negligence or inability for
business has been established.
Art. 445
Those who have, or whose father and
mother have with the minor a controversy calling into question the
status of the latter or a significant part of his property must
resign and may be challenged as to the various duties of
guardianship.
Art. 446
Where a member of the family council
is subject to exclusion, dismissal or challenge, the judge of
guardianships shall decide himself, either of his own motion, or
on demand of the guardian, of the supervisory guardian or of
the Government procurator's office.
Art. 447
Where a cause for exclusion, dismissal
or challenge relates to a guardian or a supervisory guardian, the
family council shall decide. It shall be convened by the judge of
guardianships, either of his own motion, or on demand made by the
persons mentioned in Article 410 or by the Government procurator's
office.
Art. 448
A guardian or supervisory guardian may
be excluded, dismissed or challenged only after being heard or
summoned.
Where he accepts the resolution, mention shall be made thereof and
a new guardian or supervisory guardian shall take office at
once.
Where he does not accept, he may make an application to vacate
under the rules of the Code of Civil Procedure; but the judge of
guardianships may, if he considers that there is an emergency,
prescribe forthwith interim measures for the welfare of the
minor.
Section
III - Of the Functioning of a
Guardianship
Art. 449
A family council shall regulate the
general conditions of support and education of the child, having
regard to the intention which the father and mother may have
expressed on this subject.
Art. 450
A guardian shall take care of the
person of the minor and shall represent him in all civil
transactions, save the cases where the law or usage authorizes
minors to act for themselves.
He shall administer his property like a prudent administrator and
be liable for the damages that would result from his
mismanagement.
He may not buy the minor's property or take it on lease for rent
or farm lease, unless the family council has authorized the
supervisory guardian to make a lease with him, or accept the
assignment of any right or claim against his ward.
Art. 451
A guardian shall administer and act in
that capacity from the day of his appointment, where it was made
in his presence; otherwise, from the day when notice of it was
served upon him.
Within the ten days which follow, he shall require the lifting of
seals, if they were affixed, and shall at once have an inventory
of the minor's property made, in the presence of the supervisory
guardian. An office copy of that inventory shall be sent to the
judge of guardianships.
Failing an inventory within the prescribed period, the supervisory
guardian shall refer the matter to the judge of guardianships for
the purpose of its being made, on pain of being jointly and
severally liable with the guardian for all orders rendered in
favour of the ward. Default of inventory shall authorize the ward
to make proof of the value and composition of his property by any
means, even common repute.
Where a minor owes something to the guardian, the latter shall so
declare in the inventory, on pain of forfeiture, on the demand
that the public officer is required to make to him, and
mention of which shall be made in the memorandum.
Art. 452
Within the three months which follow
the initiating of a guardianship, a guardian shall convert into
registered securities or deposit all the bearer securities
belonging to the minor into an account opened in the name of the
minor and mentioning the minority, with a depositary accredited by
the Government to receive funds and securities of wards, unless he
is authorized to sell them as provided for in Articles 457 and
468.
He shall similarly, and under the same reservation, convert into
registered securities or deposit with an accredited depositary the
bearer securities that the minor receives afterwards, in whatever
manner, within the same period of three months after the entry
into possession.
He may not withdraw the bearer securities deposited as provided
for in the preceding paragraphs, or convert registered securities
into bearer securities, unless conversion is made through a
depositary accredited by the Government
The family council may, if necessary, fix a longer period for the
performance of such operations.
Art. 453
A guardian may give a receipt for
funds which he receives for the account of the ward only with the
counter-signature of the supervisory guardian
Those funds shall be deposited by him into an account opened in
the name of the minor and mentioning the minority, with a
depositary accredited by the Government to receive funds and
securities of wards.
Deposit is to be made within the period of one month after the
receiving of funds; where that period elapses, the guardian is, as
of right, debtor for the interests.
Art. 454
On the initiating of a guardianship,
the family council shall determine at a roof estimate, and
according to the importance of the property managed, the sum
annually available for the support and education of the
ward, the expenses of administration of his property, as well as
possibly the allowance that may be granted to the guardian.
The same resolution shall specify whether the guardian is
authorized to put on the account the salaries of particulars
administrators or agents for whose assistance he may ask, under
his own responsibility.
The family council may also authorize the guardian to make a
contract for the management of the marketable securities of the
ward. The resolution shall designate the contracting third party
having regard to his solvency and professional experience, and
specify the terms of the contract. Notwithstanding any stipulation
to the contrary, the contract may, at any time, be terminated in
the name of the ward.
Art. 455
A family council shall determine the
sum at which shall begin for the guardian the responsibility to
reinvest the liquid capital of the minor, as well as the surplus
of the income. That reinvestment shall be made within a period of
six months, save extension by the family council. Where that
period elapses, the guardian is as of right accountable for the
interests.
The nature of the property that may be acquired in reinvestment
shall be determined by the family council, either in advance, or
on the occasion of each transaction.
In any case, third parties shall not be guarantors of the
reinvestment.
Art. 456
As a representative of a minor, a
guardian shall perform all acts of administration alone.
He may thus transfer, for value, movables of current use and
property having character of profits.
Leases agreed to by a guardian do not confer on the lessee,
against a minor become of age, any right to renewal or any right
to remain on the premises at the expiry of the lease,
notwithstanding any statutory provision to the contrary. Those
provisions, however, shall not apply to leases granted before the
instituting of the guardianship and renewed by the
guardian.
Transactions which, for the management of the marketable
securities of the ward, must be deemed acts of administration
entering into the responsibilities and powers, either of statutory
administrators and guardians, or of accredited depositaries, shall
be determined by decree in Conseil
d'État.
Art. 457
A guardian may not, without being
thereto authorized by the family council, make transfers in the
name of the minor.
Without that authorization, he may not, in particular, borrow for
the ward, or dispose of or encumber with real rights immovables,
business concerns, marketable securities and other incorporeal
rights, or movables which are precious or constitute an important
part of the ward's patrimony.
Art. 458
In giving its authorization, a family
council may prescribe all steps it considers appropriate, in
particular as to the reinvestment of the funds.
Art. 459
A sale of immovables and business
concerns that belong to a minor shall be done publicly by auction,
in the presence of the supervisory guardian, subject to the
conditions laid down by Articles 953 and following of the Code of
Civil Procedure [Articles 1271 and following of the new Code of
Civil Procedure].
A family council may, however, authorize an amicable sale, either
by public auction with an opening bid it shall fix, or by private
agreement, at prices and terms it shall determine. In case of
amicable auction, an outbidding may always be made, as provided
for in the Code of Civil Procedure.
A contribution to a partnership of an immovable or business
concern may take place by private agreement It must be
authorized by the family council on the report of an expert whom
the judge of guardianships shall designate.
Marketable securities registered on an official list shall be sold
through the agency of a stockbroker [a broker-dealer].
Other marketable securities shall be sold by auction through the
agency of a stockbroker [a broker-dealer] or a notaire
designated in the resolution which authorizes the sale. The family
council may, however, on the report of an expert designated by the
judge of guardianships, authorize the sale of it by private
agreement at prices and under terms it shall
determine.
Art. 460
The authorization required by Article
457 for the transfer of property of a minor shall not apply where
a judgment has ordered a sale by auction on request of a co-owner
of the property held undivided.
Art. 461
A guardian may accept a succession
accruing to a minor only under benefit of inventory. The family
council may, however, by a special resolution, authorize him to
accept it unconditionally where the assets manifestly exceed the
liabilities.
A guardian may not repudiate a succession accruing to a minor
without an authorization of the family council.
Art. 462
In case the succession repudiated in
the name of a minor has not been accepted by any one else, it may
be retaken, either by the guardian authorized for that purpose by
a new resolution of the family council, or by the minor when he
has come of age; but in the condition in which it is at the time
it is retaken and without any possibility of review of the sales
and other transactions lawfully performed during the vacancy.
Art. 463
A guardian may accept without
authorization gifts and specific legacies accruing to the ward,
unless they are encumbered with charges.
Art. 464
A guardian may, without authorization,
lodge a claim relating to patrimonial rights of the minor. He may
likewise abandon the proceedings. The family council may enjoin
him to initiate an action, to abandon it, or to make offers for
the purpose of abandonment, on pain of being liable.
A guardian may defend alone an action brought against the minor,
but he may acquiesce in it only with the authorization of the
family council.
An authorization of the family council is always required for
actions relating to non-patrimonial rights.
Art. 465
A guardian may not, without an
authorization of the family council, file an application for
partition in the name of the minor; but he may, without that
authorization, reply to an application for partition brought
against the minor or join in a collective petition for the purpose
of partition, lodged by all the parties concerned under Article
822.
Art. 466
In order to produce with regard to a
minor the same full effect as it would do between adults, a
partition must be made in court, in accordance with the provisions
of Articles 815 and following.
The family council may, however, authorize an amicable partition,
even partial. In that case, it shall designate a notaire to
proceed thereto. The statement of liquidation, to which shall be
attached the resolution of the family council, must be submitted
to the approval of the tribunal de grande instance.
Any other partition shall be
considered as only provisional.
Art. 467
A guardian may compromise in the name
of the minor only after having the family council approve the
terms of the compromise.
Art. 468
In all cases where
the authorization of the family council is required for the
validity of an act of the guardian, it may be substituted by that
of the judge of guardianships, where the act to be made involves
property the capital value of which does not exceed a sum that is
fixed by decree1.
The judge of guardianships may also, on request of a guardian,
authorize a sale of marketable securities instead and in place of
the family council where it appears to him that there would be
danger in delay, but on condition that a report be made as soon as
possible to the family council which will decide on the
reinvestment.
1
D. n° 65-961 of 5 Nov. 1965 : 1000 000 F
(15 300 €)
Section IV - Of the
Accounts of Guardianship and Of
Liabilities
Art. 469
Every guardian is accountable for his
management when it comes to an end.
Art. 470
Before the end of a guardianship, a
guardian is bound to deliver each year to the supervisory guardian
an account of management. That account shall be written and
delivered without cost, on unstamped paper.
(Act n° 95-125 of 8 Feb. 1995) The supervisory guardian
shall transmit the account with his comments to the clerk in chief
of the tribunal d'instance who may ask him any information.
In case of difficulty, the clerk in chief shall report to the
judge of guardianships who may convene the family council, without
prejudice to the power of the judge to get communication of
the account and supervise it at any time.
Where a minor reaches the full age of "sixteen years" (Act n°
74-631 of 5 July 1974), the judge of guardianships may decide
that the account shall be communicated to him.
Art. 471
Within the three months following the
end of a guardianship, a final account shall be rendered, either
to the minor himself, having become of age or emancipated, or to
his heirs. The guardian shall advance the costs of it; they shall
be charged to the ward.
A guardian must be allowed therein all expenses sufficiently
warranted and made for a useful purpose.
Where a guardian happens to cease his functions before the end of
the guardianship, he shall render a recapitulatory account of his
management to the new guardian who may accept it only with the
authorization of the family council, upon the comments of the
supervisory guardian.
Art. 472
A minor come of age or emancipated may
approve an account of guardianship only one month after the
guardian gave it to him, against a receipt, with supporting
documents. An approval given before the end of the period is void.
Also void is any agreement entered into between the ward, become
of age or emancipated, and him who was his guardian where it has
the effect of releasing the latter, in whole or in part, from his
obligation to render account.
Where an account gives rise to controversies, they shall be
prosecuted and adjudged as provided for in the Title Of
Accounting of the Code of Civil Procedure.
Art. 473
Approval of an account does not
prejudice actions for compensation that may belong to a ward
against a guardian or other organs of the guardianship.
The State is alone liable with regard to the ward, save its action
of recourse if there is occasion, for damage resulting from
whatever fault committed in the functioning of the guardianship,
either by the judge of guardianships or his clerk, "or by the
clerk in chief of the tribunal d'instance" (Act n°
95-125 of 8 Feb. 1995), or by the public administrator in
charge of a vacant guardianship under Article
433.
An action for damages by the ward against the State shall be
brought in all cases before the tribunal de grande
instance.
Art. 474
The sum to which the balance due by
the guardian may amount bears interest by operation of law from
the approval of the account and, at the latest, three months after
the end of the guardianship.
Interests on what may be due to the guardian by the minor run only
from the day of demand for payment which followed the approval of
the account.
Art. 475
Any action by the minor against a
guardian, organs of the guardianship or the State relating to
guardianship matters is time-barred after five years, counting
from majority, even where there has been emancipation.
CHAPTER III -
OF EMANCIPATION
(Act n° 64-123 of 14 Dec.
1964)
Art. 476
(Act n° 74-631 of 5 July 1974)
A minor is emancipated as a matter of
right by marriage.
Art. 477
(Act n° 74-631 of 5 July 1974)
A minor, even unmarried, may be
emancipated when he has reached the full age of sixteen years.
"After the minor has been heard" (Act n° 93-22 of 8 Jan.
1993), that emancipation shall be pronounced, if there are
proper reasons, by the judge of guardianships, on request of the
father and mother or of one of them.
Where the request is filed by only one parent, the judge shall
decide after hearing the other, unless the latter is unable to
express his or her intention.
Art. 478
(Act n° 74-631 of 5 July 1974)
A minor left without father and mother
may in the same manner be emancipated on request of the family
council.
Art. 479
Where, in the case of the preceding
Article, the guardian having taken no step, a member of the family
council is of opinion that the minor can be emancipated, he may
require the judge of guardianships to convene the council in order
to consider the matter. The minor himself may request that
convening.
Art. 480
The account of the administration or
guardianship, as the case may be, is rendered to an emancipated
minor in the way provided for in Article 471.
Art. 481
An emancipated minor is capable, like
an adult, of all transactions of civil life.
He must however, in order to marry or give himself in adoption,
comply with the same rules as if he was not emancipated.
Art. 482
An emancipated minor ceases to be
under the authority of his father and mother.
The latter are not liable as of right, in their sole capacity as
father or mother, for damage that he may cause to others after his
emancipation.
Art. 483 to 486
[repealed]
Art. 487
(Act n° 74-631 of 5 July 1974)
An emancipated minor may not be a
merchant.
TITLE XI
OF MAJORITY AND OF ADULTS WHO ARE PROTECTED
BY THE LAW
(Act n° 68-5 of 3 Jan. 1968)
CHAPTER I - GENERAL
PROVISIONS
Art. 488
(Act n° 74-631 of 5 July 1974)
Majority is fixed at the full age of
eighteen years; at that age one is capable of all the transactions
of civil life.
Nevertheless, an adult whom an impairing of his personal faculties
places in the impossibility of providing alone for his
interests is protected by the law, either on the occasion of
a specific transaction, or in a continuous
manner.
May be likewise protected an adult who, because of his
prodigality, insobriety or idleness, is in danger to fall into
need or compromises the fulfilment of his family obligations.
Art. 489
In order to enter into a valid
transaction, it is necessary to be of sound mind. But it is for
those who seek annulment on that ground to prove the existence of
a mental disorder at the time of the transaction.
During the lifetime of an individual, an action for annulment may
be brought only by him, or by his guardian or curator, where one
of them was appointed for him afterwards. It is time-barred after
the period provided for in Article 1304.
Art. 489-1
After his death, transactions entered
into by an individual, other than a gift inter vivos or a will,
may be contested on the ground provided for in the preceding
Article only in the cases listed below:
1° Where a transaction in itself discloses proof of a mental
disorder;
2° Where it was entered into in a time when the individual was
placed under judicial supervision;
3° Where a petition was initiated before the death in order to
have a guardianship or curatorship opened.
Art. 489-2
A person who has caused damage to
another when he was under the influence of a mental disorder is
nonetheless liable to compensation.
Art. 490
Where mental faculties are disordered
by an illness, an infirmity or feebleness due to age, the
interests of the person are safeguarded by one of the systems of
protection provided for in the following Chapters.
The same systems of protection apply to the impairing of bodily
faculties if it prevents the expression of
intention.
An impairing of mental or bodily faculties must be medically
established.
Art. 490-1
The methods of medical treatment, in
particular as to the choice between hospitalisation and care at
home, are independent of the system of protection relating to
civil interests.
Reciprocally, the system relating to civil interests is
independent of the medical treatment.
Nevertheless, judgments by which the judge of guardianships
organizes the protection of civil interests must be preceded by an
advice of the attending physician.
Art. 490-2
Whatever the system of protection
applicable may be, the lodging of the protected person and the
furniture with which it is equipped must be kept at his disposal
as long as it is possible.
Power of administration, as regards that property, allows only
agreements for precarious enjoyment, which shall cease from the
return of the protected person, despite any provision or
stipulation to the contrary.
Where it becomes necessary or it is in the interest of the
protected person to dispose of rights relating to lodging or to
transfer the furniture, the transaction must be approved by the
judge of guardianships, after advice of the attending physician,
without prejudice to the other formalities which the nature of the
property may require. Souvenirs and other objects of a personal
character must always be excepted from transfer and kept at the
disposal of the protected person, where appropriate, thanks to the
institution of treatment.
Art. 490-3
The Government procurator of the place
of treatment and the judge of guardianships may visit or cause to
be visited adults protected by law, whatever the system of
protection applicable to them may be.
CHAPTER
II - OF ADULTS UNDER JUDICIAL SUPERVISION
Art. 491
An adult who, for one of the causes
provided for in Article 490, needs to be protected in the
transactions of civil life, may be placed under judicial
supervision.
Art. 491-1
Judicial supervision results from a
declaration made to the Government procurator in the way provided
for by the Code of Public Health.
A judge of guardianships, to whom proceedings in guardianship or
curatorship have been referred, may place the person whom it
should be advisable to protect under judicial supervision, pending
suit, by an interim order transmitted to the Government
procurator.
Art. 491-2
An adult placed under judicial
supervision keeps the exercise of his rights.
However, the transactions he entered into and the undertakings he
contracted may be rescinded for ordinary loss or abated in case of
excess, even though they may not be annulled under Article
489.
Courts shall take into consideration, on this subject, the wealth
of the protected person, the good or bad faith of those who dealt
with him, the usefulness or uselessness of the
transaction.
An action for rescission or abatement may be brought, during the
lifetime of the person, by all those who would have standing to
petition for the opening of a guardianship and, after his death,
by his heirs. It is time-barred after the period provided for in
Article 1304.
Art. 491-3
Where a person has appointed an agent
for the purpose of administering his property, either before, or
after being placed under judicial supervision, that agency must be
fulfilled.
However, where a power of attorney expressly mentions that it was
given on account of the period of supervision, it may, during that
period, be revoked by the principal only with the authorization of
the judge of guardianships.
In all cases, the judge, either of his own motion, or on request
of one of the parties who would have standing to request the
opening of a guardianship, may order the revocation of the agency.
He may also, even of his own motion, order that "the accounts be
submitted to the clerk in chief of the tribunal d'instance
for approval, without prejudice to the power of the judge to
exercise himself that supervision" (Act n° 95-125 of 8 Feb.
1995).
Art. 491-4
In the absence of an agency, the rules
of management of another’s business shall be followed.
However, those who would have standing to request the opening of a
guardianship are under the obligation to do the acts of
preservation necessitated by the management of the patrimony of
the protected person where they had knowledge of their urgency as
well as of the declaration for purpose of supervision. The same
obligation falls under the same conditions on the director of the
treating institution or, possibly, on the one who shelters at his
home the person under supervision.
An obligation to do acts of preservation involves, with regard to
third parties, the corresponding power.
Art. 491-5
Where there is occasion to act
outside the cases defined in the preceding Article, any party
concerned may give notice thereof to the judge of guardianships.
The judge may, either appoint a special agent for the purpose of
doing a specific transaction or a series of transactions of the
same nature, within the limits of what a guardian might do without
the authorization of the family council, or decide of his own
motion to open a guardianship or a curatorship, or direct the
party concerned to instigate himself the opening where he is one
of those having standing to request it
Art. 491-6
Judicial supervision comes to an end
with a new declaration certifying that the previous situation has
come to an end, by lapse of the declaration under the periods of
the Code of Civil Procedure or by its cancellation upon decision
of the Government procurator.
It comes also to an end with the opening of a guardianship or of a
curatorship from the day when the new system of protection takes
effect.
CHAPTER III - OF
ADULTS IN GUARDIANSHIP
Art. 492
A guardianship shall be opened where
an adult, for one of the causes provided for in Article 490, needs
to be represented in a continuous manner in the transactions of
civil life.
Art. 493
The opening of a guardianship shall be
ordered by the judge of guardianships on request of the person
whom there is occasion to protect, of his or her spouse, unless
community of living has ceased between them, of his or her
ascendants or descendants, brothers and sisters, of the curator or
of the Government procurator; it may also opened by the judge of
his own motion.
Other relatives by blood or marriage, or friends, may only make
known to the judge the cause that could justify the opening of a
guardianship. It shall be likewise with the attending physician
and the director of the institution.
The persons referred to in the two preceding paragraphs may, even
where they did not intervene into the case, appeal to the
tribunal de grande instance against a judgment which opened
a guardianship.
Art. 493-1
The judge may order the opening of a
guardianship only where the impairing of mental or bodily
faculties of the sick person was ascertained by a specialist
chosen from a list established by the Government procurator.
The opening of a guardianship shall be ordered in the way provided
for in the Code of Civil Procedure.
Art. 493-2
Judgments opening, modifying or
withdrawing a guardianship may be enforced against third parties
only two months after mention of them was made in the margin of
the record of birth of the protected person, as provided for in
the Code of Civil Procedure.
Even failing that mention, they are nevertheless enforceable
against third parties who had personal knowledge of them.
Art. 494
A guardianship may be opened for an
emancipated minor as for an adult.
As regards a non-emancipated minor, a petition may even be
initiated and adjudged during the last year of minority; but
guardianship shall take effect only from the day when he comes of
age.
Art. 495
Shall apply also to guardianships of
adults the rules prescribed by Sections 2, 3 and 4 of Chapter II
of Title X of this Book for guardianships of minors, save,
however, those which relate to the education of the child and, in
addition, under the following amendments.
Art. 496
A spouse is the guardian of the other
spouse, unless community of living has ceased between them or the
judge is of opinion that another reason prevents his or her being
entrusted with guardianship. All other guardians are dative.
A guardianship of an adult may be conferred on a juridical person.
Art. 496-1
Nobody, except the spouse, descendants
and juridical persons may be compelled to hold guardianship of an
adult beyond five years. On the expiry of that period, the
guardian may request and shall gain his
replacement.
Art. 496-2
An attending physician may not be a
guardian or a supervisory guardian of his patient. But the judge
of guardianships may always call on him to participate in the
family council in an advisory capacity.
A guardianship may not be conferred on a treating institution, or
on any person holding therein a gainful occupation unless they are
one of those who had standing to request the opening of a
guardianship. An executive employee of the institution may however
be designated as manager of the guardianship in the circumstances
referred to in Article 499.
Art. 497
Where there is "a relative by blood or
by marriage" (Act n° 96-452 of 28 May 1996) qualified for
managing the property, the judge of guardianships may decide that
he shall manage it as a statutory administrator, without a
supervisory guardian or a family council, in accordance with the
rules that apply, as regards the property of a minor, to statutory
administration under judicial supervision.
Art. 498
There is no occasion to open a
guardianship which would devolve on a spouse where the interests
of a protected person can be provided for adequately in accordance
with the matrimonial regime and in particular with the rules of
Articles 217 and 219, 1426 and 1429.
Art. 499
Where, in consideration of the
composition of the property to be managed, the judge of
guardianships considers it useless to establish a complete
guardianship, he may limit himself to designate as manager of the
guardianship, without supervisory guardian or family council,
either an executive employee belonging to the administrative staff
of the treating institution, or a special administrator, chosen in
the way provided for in a decree in Conseil d'État.
Art. 500
A manager of a guardianship shall
collect the incomes of the protected person and apply them to the
support and treatment of the latter and discharge of the
maintenance obligations for which he may be liable. Where there is
an excess, he shall deposit it into an account which he must open
with an accredited depositary. Each year, he shall render account
of his management directly to the "clerk in chief of the
tribunal d'instance, without prejudice to the power of the
judge to request at any time from the clerk in chief communication
of the account of management and direct transmittal of the
accounting" (Act n° 95-125 of 8 Feb.
1995).
Where other acts become necessary, he shall refer the matter to
the judge who may either authorize him to do them, or decide to
establish the guardianship completely.
Art. 501
When opening a guardianship or in a
subsequent judgment, the judge, upon opinion of the attending
physician, may list some transactions that the person in
guardianship will have the capacity to enter into himself, either
alone, or with the assistance of the guardian or of the person
standing in his stead.
Art. 502
All transactions entered into by a
protected person after the judgment of opening of a guardianship
are void as of right, subject to the provisions of Article
493-2.
Art. 503
Prior transactions may be annulled
where the cause which determined the opening of the guardianship
existed notoriously at the time when they were
made.
Art. 504
A will made after the opening of a
guardianship is void as of right.
A will previously made remains valid, unless it is proved that,
since the opening of the guardianship, the reason which determined
the testator to so dispose has disappeared.
Art. 505
With authorization of the family
council, gifts may be made in the name of an adult in
guardianship, but only in favour of his descendants and by way of
advancement, or in favour of the spouse.
Art. 506
Even in the cases of articles 497 and
499, marriage of an adult in guardianship is allowed only with the
consent of a family council specially convened in order to
consider the matter. The council may decide only after hearing the
future spouses.
There is no occasion for a meeting of the family council where the
father and mother both give their consent to the marriage.
In all cases, the opinion of the attending physician is required.
Art. 506-1
(Act n° 99-944 of 15 Nov.
1999)
Adults in guardianship may not enter
into a civil covenant of solidarity.
Where, during a civil covenant of solidarity, one of the partners
is placed under guardianship, the guardian authorized by the
family council or, failing which, the judge of guardianships may
put an end to the covenant in the way provided for in
Article 515-7, paragraph 1 or 2.
Where the initiative to cancel the covenant is taken by the other
partner, the notice mentioned in the same Article, paragraph 2 and
3, shall be served on the guardian.
Art. 507
Guardianship comes to an end with the
causes that determined it; nevertheless removal of it may be
ordered only in complying with the formalities prescribed for
attaining its opening and a person in guardianship may resume the
exercise of his rights only after a judgment of removal.
The methods of review provided for by Article 493, paragraph 3,
may be resorted to only against judgments that refuse to give
removal of a guardianship.
CHAPTER
IV - OF ADULTS IN CURATORSHIP
Art. 508
Where an adult, for one of the causes
provided for in Article 490, without being unable to act for
himself, has need of being advised or supervised in transactions
of civil life, he may be placed under a system of curatorship.
Art. 508-1
An adult to whom Article 488,
paragraph 3, refers may also be placed under a system of
curatorship.
Art. 509
Curatorship is opened and comes to an
end in the same way as a guardianship of adults.
It is subject to the same requirements as to notice.
Art. 509-1
In a curatorship there is no other
organ than the curator.
A spouse is curator for the other spouse unless community of
living has ceased between them or the judge is of opinion that
another reason prevents his or her being entrusted with
curatorship. All other curators must be appointed by the judge of
guardianships.
Art. 509-2
The provisions relating to the duties
of a guardian shall apply to the office of a curator, under the
amendments which guardianship of adults
involves.
Art. 510
An adult in curatorship may not,
without the assistance of his curator, enter into any transaction
which, under the system of guardianship of adults, requires an
authorization of the family council. Nor may he, without that
assistance, receive capital or make investment of it.
Where a curator refuses his assistance to a transaction, a person
in curatorship may request a suppletory authorization from the
judge of guardianships.
Art. 510-1
Where an adult in curatorship has
entered alone into a transaction for which the assistance of a
curator was required, himself or the curator may seek the
annulment of it.
An action for annulment is time-barred after the period provided
for in Article 1304, or even, before expiry of that period, in
consequence of the approval that the curator may have given to the
transaction.
Art. 510-2
Any service made on an adult in
curatorship may be also made on the curator, on pain of
invalidity.
Art. 510-3
In cases where the assistance of a
curator was not required by statute, transactions into which an
adult in curatorship may have entered alone remain nevertheless
subject to actions for rescission or abatement regulated by
Article 491-2, as though they were entered into by a person under
judicial supervision.
Art. 511
When opening a curatorship or in a
subsequent judgment, the judge, upon opinion of the attending
physician, may list some transactions that the person in
curatorship will have the capacity to enter into alone, in
derogation from Article 510, or, inversely, add other transactions
to those for which that Article requires the assistance of a
curator.
Art. 512
When appointing a curator, the judge
may order that he alone shall receive the incomes of the person in
curatorship, settle expenses with regard to third parties, and
deposit the excess, if any, into an account opened with an
accredited depositary.
A curator appointed with that task shall render an account of his
management each year to the "clerk in chief of the tribunal
d'instance, without prejudice to the power of the judge to
request at any time from the clerk in chief communication of the
account of management and direct transmittal of the accounting"
(Act n° 95-125 of 8 Feb. 1995). .
Art. 513
A person in curatorship may freely
make his will, except for application of Article 901, if there is
occasion.
He may make a gift only with the assistance of his curator.
Art. 514
As regards marriage of an adult in
curatorship, the consent of the curator is required; failing
which, that of the judge of guardianships.
Art. 515 [repealed]
TITLE XII
OF CIVIL COVENANTS OF SOLIDARITY AND OF
CONCUBINAGE
(Act n° 99-944 of 15 Nov.
1999)
CHAPTER I - OF
CIVIL COVENANTS OF SOLIDARITY
Art. 515-1
A civil covenant of solidarity is a
contract entered into by two natural persons of age, of different
sexes or of a same sex, to organize their common
life.
Art. 515-2
On pain of nullity, there may not be a
civil covenant of solidarity:
1° Between ascendants and descendants in direct line, between
relatives by marriage in direct line and between collaterals until
the third degree inclusive;
2° Between two persons of whom one at least is bound by the bonds
of marriage;
3° Between two persons of whom one at least is already bound by a
civil covenant of solidarity.
Art. 515-3
Two persons who enter into a civil
covenant of solidarity shall make a joint declaration of it at the
court office of the tribunal d'instance under the
jurisdiction of which they fix their common
residence.
On pain of dismissal, they shall file with the clerk the agreement
concluded between them in duplicate original and add the documents
of civil status which allow to establish the validity of the
transaction with respect to Article 515-2, as well as a
certificate of the court office of the tribunal d'instance
of their places of birth or, in case of birth abroad, of the
court office of the tribunal de grande instance of Paris,
attesting that they are not already bound by a civil covenant of
solidarity.
After the filing of the set of documents, the clerk shall enter
that declaration into a register.
The clerk shall countersign and date the two originals of the
agreement and give them back to each partner.
He shall have a mention of the declaration entered into a register
held in the court office of the tribunal d'instance of the
place of birth of each partner or, in case of birth abroad, in the
court office of the tribunal de grande instance of
Paris.
An entry in the register of the place of residence shall attribute
an undisputable date to the civil covenant of solidarity and
render it effective against third parties.
Any amendment to the covenant shall be the subject of a joint
declaration entered at the court office that received the initial
transaction, to which shall be added, on pain of dismissal and in
duplicate original, the instrument amending the agreement. The
formalities provided for in paragraph 4 shall apply.
Abroad, the entry of a joint declaration of a covenant binding two
partners of whom one at least is of French nationality, the
formalities provided for in paragraphs 2 and 4 and those required
in case of an amendment of the covenant shall be the
responsibility of French diplomatic and consular
agents.
Art. 515-4
Partners bound by a civil covenant of
solidarity shall provide mutual material and moral aid to each
other. The terms of that aid shall be fixed by the covenant.
Partners shall be jointly and severally liable with regard to
third parties for debts incurred by one of them for the needs of
everyday life and for expenses relating to the common lodging.
Art. 515-5
Partners to a civil covenant of
solidarity shall lay down, in the agreement referred to in Article
515-3, paragraph 2, whether they wish to submit to the system of
undivided ownership the furniture they would acquire for value
after the conclusion of the covenant. Failing which, that
furniture shall be deemed undivided in halves. It shall be
likewise where the date of acquisition of that property may not be
established.
The other property of which partners become owners for value after
the conclusion of the covenant shall be deemed undivided in halves
where the instrument of acquisition or of subscription does not
otherwise provide.
Art. 515-6
The provisions of Article 832 shall
apply between partners to a civil covenant of solidarity in
case of dissolution of it, save those relating to all or part of
an agricultural holding, as well as to an undivided share or to
partnership shares of that holding.
Art. 515-7
Where partners decide by mutual
agreement to put an end to a civil covenant of solidarity, they
shall file a joint written declaration with the court office of
the tribunal d'instance under the jurisdiction of which one
of them at least has his residence. The clerk shall enter that
declaration into a register and shall ensure its
preservation.
Where one of the partners decides to put an end to a civil
covenant of solidarity, he or she shall serve notice of his or her
decision on the other and shall send a copy of that notice to the
court office of the tribunal d'instance which received the
initial instrument.
Where one of the partners puts an end to a civil covenant of
solidarity by marrying, he or she shall notify his or her decision
to the other by service and shall send copies of the latter and of
his or her record of birth on which mention of the marriage has
been made, to the court office of the tribunal d'instance
which received the initial instrument.
Where a civil covenant of solidarity comes to an end by the death
of at least one of the partners, the survivor or any party
concerned shall send a copy of the record of death to the court
office of the tribunal d'instance which received the
initial instrument.
A clerk who receives a declaration or instruments provided for in
the preceding paragraphs shall enter or have entered mention of
the end of the covenant into the margin of the initial instrument.
He shall also have registration of that mention written into the
margin of the register provided for in Article 515-3, paragraph
5.
Abroad, receiving, recording and preserving a declaration or
instruments referred to in the first four paragraphs shall be the
responsibility of French diplomatic or consular agents, who shall
also undertake or have undertaken mentions provided for in the
preceding paragraph.
A civil covenant of solidarity shall come to an end, according to
the circumstances:
1° As soon as a mention is made in the margin of the initial
instrument of the joint declaration provided for in the first
paragraph;
2° Three months after service delivered under paragraph 2,
provided that a copy of it was brought to the knowledge of the
clerk of the court designated in that paragraph;
3° On the date of the marriage or of the death of one of the
partners.
Partners shall undertake themselves the liquidation of the rights
and obligations resulting on their behalf from the civil covenant
of solidarity. Failing an agreement, the judge shall rule on the
patrimonial consequences of the breach, without prejudice to
damage possibly suffered.
CHAPTER II - OF
CONCUBINAGE
Art. 515-8
Concubinage is an union in fact,
characterized by a life in common offering a character of
stability and continuity, between two persons, of different sexes
or of the same sex, who live in couple.
BOOK TWO
OF PROPERTY AND OF THE VARIOUS MODIFICATIONS OF
OWNERSHIP
TITLE
ONE
OF THE VARIOUS KINDS OF PROPERTY
Art. 516
All property is movable or
immovable.
CHAPTER I - OF
IMMOVABLES
Art. 517
Property is immovable, either by its
nature or by its destination or by the object to which it applies.
Art. 518
Lands and buildings are immovables by
their nature.
Art. 519
Windmills or watermills, fixed on
pillars and forming part of a building, are also immovables by
their nature.
Art. 520
Harvests standing by roots and the
fruit of trees not yet gathered are also immovables.
As soon as crops are cut and the fruit separated, even though not
removed, they are movables.
Where only a part of a harvest is cut, this part alone is movable.
Art. 521
The normal cutting of underwood or of
timber periodically cut becomes movable only as the cutting down
of trees proceeds.
Art. 522
Animals which the owner of a tenement
delivers to a farmer or share cropper for farming, whether they
are appraised or not, shall be deemed immovables so long as they
remain attached to the tenement under the terms of the agreement.
Animals leased to other than farmers or share croppers are
movables.
Art. 523
Pipes used to bring water into a house
or other immovable are immovables and form part of the
tenement to which they are attached.
Art. 524
"Animals and things that the owner of
a tenement placed thereon for the use and working of the tenement
are immovable by destination" (Act n° 99-5 of 6 Jan.
1999).
Thus,
Animals attached to farming;
Farming implements;
Seeds given to farmers or share croppers;
Pigeons in pigeon-houses;
Warren rabbits;
Beehives;
"Fishes of waters not referred to in Article 402 [L. 231-3] of the
Rural Code and of stretches of water referred to in Articles 432
and 433 [L. 231-6 and L. 231-7] of the same Code" (Act n°
84-512 of 29 June 1984); [now Articles L. 431-6 and L. 431-7 of the Code
of the Environment]"
Wine pressers, boilers, stills, vats and
barrels;
Implements necessary for working ironworks, paper-mills and other
factories;
Straw and manure,
are immovables by
destination where they have been placed by the owner for the use
and working of the tenement.
All movables which the owner has attached to the tenement
perpetually are also immovables by destination.
Art. 525
An owner shall be deemed to have
attached movables perpetually to his tenement, where they are
fastened with plaster or mortar or cement, or where they cannot be
removed without being broken or damaged, or without breaking or
damaging the part of the tenement to which they are
affixed.
The mirrors of an apartment shall be deemed perpetually placed
where the flooring to which they have been fastened is part of the
panelling.
It shall be the same as to pictures and other
ornaments.
As regards statues, they are immovables where they are placed in a
recess designed expressly to receive them, even though they can be
removed without breakage or damage.
Art. 526
The usufruct of immovable
things;
Servitudes or land services;
Actions for the purpose of recovering an
immovable,
are immovables by
the object to which they apply.
CHAPTER II - OF
MOVABLES
Art. 527
Property is movable by its nature or
by prescription of law.
Art. 528
(Act n° 99-5 of 6 Jan. 1999)
Animals and things which can move from
one place to another, whether they move by themselves, or whether
they can move only as the result of an extraneous power, are
movables by their nature .
Art. 529
Obligations and actions having as
their object sums due or movable effects, shares or interests in
financial, commercial or industrial concerns, even where
immovables depending on these enterprises belong to the concerns,
are movables by prescription of law. Those shares or interests
shall be deemed movables with regard to each shareholder only, as
long as the concern lasts.
Perpetual or life annuities, either from the State or private
individuals, are also movables by prescription of
law.
Art. 530
Any annuity established in perpetuity
for the price of sale of an immovable, or as condition to a
conveyance, for value or gratuitous, of an immovable tenement, is
essentially redeemable.
A creditor may nevertheless regulate the terms and conditions of
the redemption.
He may also stipulate that the annuity may be redeemed only after
a certain time, which may never exceed thirty years: any
stipulation to the contrary is void.
Art. 531
Boats, ferry-boats, ships, floating
mills and baths, and generally all works which are not fastened to
pillars and do not form part of a house, are movables: a seizure
of some of these things may however, owing to their importance, be
subject to certain special proceedings, as explained in the Code
of Civil Procedure.
Art. 532
Materials coming from the demolition
of a building, those gathered for erecting a new one, are movables
until they are used by a worker in building operations.
Art. 533
The word movable, used alone in
provisions of law or of man, without any other addition or
designation, does not include ready money, precious stones,
credits, books, medals, instruments of sciences, arts and
professions, clothing, horses, carriages, weapons, grain, wine,
hay and other commodities; neither does it include what is
involved in a business.
Art. 534
The words furnishing movables
include only movables intended for use and ornamentation of
apartments, such as tapestries, beds, seats, mirrors, clocks,
tables, china and other articles of such kind.
Pictures and statues that form part of the furniture of an
apartment are also included therein, but not collections of
pictures which may be in galleries or special
rooms.
It shall be likewise of china: only that which is part of the
decoration of an apartment is included under the denomination of
furnishing movables.
Art. 535
The expression movable property,
that of furniture or movable effects include
generally every thing which is deemed to be a movable according to
the rules above set forth.
Art. 536
A sale or gift of a house, with all
that is found therein, does nor include ready money, or credits
and other rights whose instruments of title may have been
deposited in the house; all other movable effects are included.
CHAPTER III - OF
PROPERTY IN ITS RELATIONS WITH THOSE WHO OWN
IT
Art. 537
Private individuals have the free
disposal of property which belongs to them, subject to the
modifications established by legislation.
Property which does not belong to private individuals is
administered and may be transferred only in the forms and
according to the rules which are peculiar to it.
Art. 538
Ways, roads and streets of which the
State is in charge, navigable or floatable rivers and streams,
beaches, foreshore, ports, harbours, anchorages and generally all
parts of French territory which are not capable of private
ownership are deemed to be dependencies of the Public Domain.
Art. 539
All property without a claimant and a
master, and that of private persons who die without heirs or whose
successions are abandoned, belong to the Public Domain.
Art. 540
The gates, walls, ditches and
battlements of fortified places and fortresses, are also part of
the Public Domain.
Art. 541
It shall be likewise with lands,
fortifications and battlements of places which are no longer
fortified places: they belong to the State, unless they have been
lawfully transferred, or ownership has been acquired by
prescription against it.
Art. 542
Common property is that to whose
ownership or revenue the inhabitants or one or several communes
have a vested right.
Art. 543
One may have a right of ownership, or
a mere right of enjoyment, or only land services to be claimed on
property.
TITLE
II
OF OWNERSHIP
Art. 544
Ownership is the right to enjoy and
dispose of things in the most absolute manner, provided
they are not used in a way prohibited by statutes or
regulations.
Art. 545
No one may be compelled to yield his
ownership, unless for public purposes and for a fair and previous
indemnity.
Art. 546
Ownership of a thing, either movable
or immovable, gives a right to everything it produces and to what
is accessorily united to it, either naturally or
artificially.
That right is called right of accession.
CHAPTER I - OF THE
RIGHT OF ACCESSION TO WHAT IS PRODUCED BY A
THING
Art. 547
Natural or cultural fruit of the
land;
Revenues;
Increase in stock,
belong to the owner
by right of accession.
Art. 548
(Act n° 60-464 of 17 May 1960)
Fruit produced by a thing belong to
the owner only on condition that he repays the costs of ploughing,
works and seeds incurred by third parties and whose value must be
assessed at the date of repayment.
Art. 549
(Act n° 60-464 of 17 May 1960)
A mere possessor makes fruits his own
only where he possesses in good faith. If not, he is bound to
restore the products with the thing to the owner who claims it;
where the said products are not found in kind, their value must be
appraised at the date of repayment.
Art. 550
A possessor is in good faith where he
possesses as owner, under an instrument of transfer of whose
defects he does not know.
He ceases to be in good faith from the time those defects are
known to him.
CHAPTER II - OF THE
RIGHT OF ACCESSION TO WHAT UNITES OR INCORPORATES ITSELF WITH
A THING
Art. 551
Everything which unites and
incorporates itself with a thing belongs to the owner, according
to the rules hereafter laid down.
Section I - Of the Right of Accession Relating to
Immovable Things
Art. 552
Ownership of the ground involves
ownership of what is above and below it.
An owner may make above all the plantings and constructions which
he deems proper, unless otherwise provided for in the Title Of
Servitudes or Land Services.
He may make below all constructions
and excavations which he deems proper and draw from these
excavations all the products which they can give, subject to the
limitations resulting from statutes and regulations relating to
mines and from police statutes and regulations.
Art. 553
All constructions, plantings and works
on or inside a piece of land are presumed made by the owner, at
his expenses and belonging to him, unless the contrary is proved;
without prejudice to the ownership, either of an underground
gallery under a building of another, or of any other part of the
building, which a third party may have acquired or may acquire by
prescription
Art. 554
(Act n° 60-464 of 17 May 1960)
An owner of the ground who made
constructions, plantings and works with materials which did not
belong to him, shall pay the value of them, appraised at the date
of payment; he may also be ordered to pay damages, if there is
occasion: but the owner of the materials may not remove
them.
Art. 555
(Act n° 60-464 of 17 May 1960)
Where plantings, constructions or
works were made by a third party and with materials belonging to
the latter, the owner of the tenement has the right, subject to
the provisions of paragraph 4, either to keep the ownership of
them, or to compel the third party to remove them.
Where the owner of the tenement requires to have the
constructions, plantings or works suppressed, it shall be done at
the expense of the third party, and without any compensation for
him; the third party may furthermore be ordered to pay damages for
loss which the owner of the tenement may have suffered.
Where the owner of the tenement prefers to keep ownership of the
constructions, plantings or works, he must, at his choice, repay
the third party either a sum equal to that by which the tenement
has increased in value, or the cost of the materials and the price
of the labour appraised at the date of repayment, account being
taken of the condition in which the said plantings, constructions
or works are .
Where the plantings, constructions or works were made by an
evinced third party who would not have been liable to restoring
the fruits owing to his good faith, the owner may not insist on
the suppression of the said works, constructions and plantations,
but he has the choice to repay the third party either of the
sums referred to in the preceding paragraph.
Art. 556
Deposits and accretions which gather
successively and imperceptibly in tenements on the bank of a river
or stream are called alluvion.
Alluvion benefits to the riparian
owner, whether it be a question of a river or of a stream
navigable, floatable or not; on condition, in the first case, that
he leaves a footpath or towing-path, in accordance with
regulations.
Art. 557
The same rule shall apply to sandbanks
formed by running water which withdraws insensibly from one of its
banks and proceeds onto the other: the owner of the uncovered bank
profits from the alluvion, without the riparian owner of the
opposite side being allowed to claim the land which he has
lost.
That right does not arise with regard to foreshore.
Art. 558
Alluvion does not arise with regard to
lakes and ponds, whose owner always keeps the land covered by the
water when it reaches the level of the outlet of the pond, even
where the volume of water decreases.
Reciprocally, the owner of a pond does not acquire any right to
the riparian lands which its water happens to cover during
extraordinary floods.
Art. 559
Where a river or stream, navigable or
not, removes by a sudden drift a considerable and recognizable
part of a riparian field and carries it towards a lower field or
to the opposite bank, the owner of the part removed may claim his
property; but he is compelled to file his claim within one year:
after that period, it will no longer be admissible, unless the
owner of the field to which the part removed has been joined has
not yet taken possession of it.
Art. 560
Islands, islets, deposits which gather
in the beds of rivers or of navigable or floatable streams belong
to the State, unless there is an instrument of title or
prescription to the contrary.
Art. 561
Islands and deposits which gather in
streams not navigable nor floatable belong to the riparian owners
on the side where the island gathered: where the island has not
gathered on one side, it belongs to riparian owners of both sides,
beginning from a line supposedly drawn in the middle of the
river.
Art. 562
Where a stream or river, in forming a
new arm, cuts off and surrounds a field of a riparian owner and
makes an island of it, that owner keeps the ownership of his
field, although the island gathered in a river or a stream
navigable or floatable.
Art. 563
(Act of 8 April 1898)
Where a river or a stream navigable or
floatable forms a new course by abandoning its former bed, the
riparian owners may acquire ownership of that former bed, each one
in his own right until a line supposedly drawn in the middle of
the stream. The price of the former bed must be fixed by experts
appointed by the president of the court of the location of the
land, on request of the préfet of the
département.
Where the riparian owners fail to
declare, within three months of the notice served upon them by
the préfet, their intention to purchase at the prices
fixed by the experts, the conveyance of the ancient bed must be
made under the rules which govern alienation of the domain of the
State.
The proceeds of the sale shall be distributed as a compensation to
the owners of the tenements filled by the new course in proportion
to the value of the ground taken from each of
them.
Art. 564
Pigeons, rabbits, fishes which go to
another pigeon-house, warren or "stretch of water referred to in
Articles 432 and 433 [ L. 231-6 and L. 231-7] of the Rural Code"
(Act n° 84-512 of 29 June 1984), belong to the owner of
these things, provided that they were not attracted by fraud or
guile.
Section
II - Of the Right of Accession Relating to Movable
Things
Art. 565
Where the right of accession applies
to two movable things belonging to two different masters, it
depends entirely on the principles of natural
equity.
The following rules will serve as examples to the judge to make up
his mind, in unforeseen situations, according to the circumstances
of the case.
Art. 566
(Act n° 60-464 of 17 May 1960)
Where two things belonging to
different masters, which have been so joined as to form one whole,
are nevertheless separable, so that one may subsist without the
other, the whole belongs to the master of the thing which forms
the main part, subject to the obligation of paying to the other
the value, appraised at the date of payment, of the thing which
has been jopined.
Art. 567
The part to which the other has been
joined only for the use, ornamentation or completion of the first
is deemed the main part.
Art. 568
Where, however, the thing joined is of
much more value than the main thing and where it was used without
the knowledge of the owner, the latter may request that the thing
joined be separated in order to be returned to him, even where
there may result some deterioration of the thing to which it has
been joined.
Art. 569
Where of two things joined to form one
whole, one cannot be considered as the accessory of the other,
that one is deemed the main which has the greater value, or the
greater volume where the values are approximately equal.
Art. 570
(Act n° 60-464 of 17 May 1960)
Where a craftsman or any person
whatever has used material which did not belong to him to make a
thing of a new kind, whether the material can resume its original
form or not, he who was the owner of it has the right to claim the
thing made out of it by repaying the price of the labour appraised
at the date of repayment.
Art. 571
(Act n° 60-464 of 17 May 1960)
Where however the labour was so
important that it greatly exceeds the value of the material used,
the service will then be deemed the main part and the workman has
the right to keep the thing wrought, by repaying the owner the
value of the material, appraised at the date of
repayment.
Art. 572
(Act n° 60-464 of 17 May 1960)
Where a person has partly used
material which belonged to him and partly material which did not
belong to him to make a thing of a new kind, without either of the
two materials being entirely destroyed, but in such a way that
they cannot be separated without inconvenience, the thing is
common to the two owners, as to one, on account of the material
which belonged to him, and as to the other, on account both of the
material which belonged to him and of the price of his labour. The
price of the labour must be appraised at the date of the auction
sale provided for in Article 575.
Art. 573
Where a thing has been formed by a
mingling of several materials belonging to different owners, of
which none however can be considered as the main material, if the
materials can be separated, he without whose knowledge the
materials have been mingled may request that they be
separated.
Where the materials can no longer be separated without
inconvenience, they acquire ownership of them in common, in
proportion to the quantity, the quality and the value of the
materials belonging to each of them.
Art. 574
(Act n° 60-464 of 17 May 1960)
Where the material belonging to one of
the owners was far superior to the other in quantity and price,
then the owner of the material superior in value may request the
thing resulting from the mingling, by repaying the other the value
of his material, appraised at the date of
repayment.
Art. 575
Where a thing remains in common
between the owners of the materials from which it has been made,
it must be sold by auction for their common
benefit.
Art. 576
(Act n° 60-464 of 17 May 1960)
In all cases where the owner whose
material was used without his knowledge to make a thing of a
different kind may claim ownership of that thing, he has the
choice of requesting restitution of his material in the same kind,
quantity, weight, measure and good quality, or its value appraised
at the date of restitution.
Art. 577
Those who have made use of materials
belonging to others, and without their knowledge, may also be
ordered to pay damages, if there is occasion, without prejudice to
criminal prosecution, if need be.
TITLE III
OF USUFRUCT, OF USE AND OF
HABITATION
CHAPTER I - OF
USUFRUCT
Art. 578
Usufruct is the right to enjoy things
of which another has ownership in the same manner as the owner
himself, but on condition that their substance be
preserved.
Art. 579
Usufruct is established by law or by a
person's wish.
Art. 580
Usufruct may be established outright,
or at a certain date, or conditionally.
Art. 581
It may be established on any kind of
movable and immovable property.
Section I - Of
the Rights of a Usufructuary
Art. 582
A usufructuary has the right to enjoy
all kinds of fruits, either natural or cultural, or revenues,
which the thing of which he has the usufruct can produce.
Art. 583
Natural fruits are those which are the
spontaneous product of the earth. The produce and increase of
animals are also natural fruits.
Cultural fruits of a tenement are those which are obtained by
cultivation.
Art. 584
Revenues are rents of houses,
interests on sums due, arrears of annuities.
Prices of farming leases are also included in the class of
revenues.
Art. 585
Natural and cultural fruits, hanging
from branches or roots when a usufruct begins, belong to the
usufructuary.
Those which are in the same condition when the usufruct comes to
an end, belong to the owner, without compensation on either side
for ploughing and seeds, but also without prejudice to the portion
of the fruits which may be acquired by a tenant paying rent in
kind who may be there at the beginning or at the termination of
the usufruct.
Art. 586
Revenues are deemed to be acquired day
by day, and belong to the usufructuary in proportion to the
duration of his usufruct. This rule shall apply to proceeds of
farming leases, as well as to rents of houses and other
revenues.
Art. 587
(Act n° 60-464 of 17 May 1960)
Where a usufruct includes things which
cannot be used without being consumed, such as money, grain,
liquors, a usufructuary has the right to use them, but with the
responsibility of returning, at the end of the usufruct, either
things of the same quantity and quality or their value appraised
at the time of restitution.
Art. 588
A usufruct of a life annuity also
gives the usufructuary, during the duration of his usufruct, the
right to collect arrearages of it, without being liable to any
restitution.
Art. 589
Where a usufruct includes things
which, without being consumed at once, deteriorate gradually, such
as clothes or furnishing movables, the usufructuary has the right
to make use of them for the use to which they are intended and is
only bound to return them at the end of the usufruct in the
condition in which they are, not deteriorated through his
intentional wrong or fault.
Art. 590
Where a usufruct includes underwood, a
usufructuary is bound to respect the order and quota of cuttings,
in accordance with the parcelling or the uniform usage of the
owners; without however compensation in favour of the usufructuary
or of his heirs, for ordinary cuttings, either of coppice, or of
staddles, or of forest trees that were not done during his
enjoyment.
Trees which can be removed from a tree nursery without damaging
it, form part of a usufruct only on condition for the usufructuary
of complying with the usages of the place in replacing
them.
Art. 591
A usufructuary also benefits, always
by observing the periods and usages of the former owners, by the
parts of woods of timber trees in which periodical cuttings are
made, whether those cuttings are made periodically over a certain
extent of land, or whether they are made of a certain quantity of
trees taken indiscriminately over the whole surface of the
property.
Art. 592
In all other cases, a usufructuary may
not interfere with woods of timber trees: he may only use the
trees which have been uprooted or broken by accident to make the
repairs which he is bound to make; he may even for that purpose
have trees cut down, if necessary, provided the necessity of so
doing is ascertained with the owner.
Art. 593
He may take vine props in the woods;
he may also take annual or periodical products from the trees; all
of which being done according to the usage of the country or the
custom of the owners.
Art. 594
Fruit trees which die, even those
which are uprooted or broken by accident, belong to the
usufructuary, subject to the condition of replacing them by
others.
Art. 595
(Act n° 65-570 of 13 July
1965)
A usufructuary may enjoy by himself,
give on lease to another, even sell or transfer his right
gratuitously.
Leases that a usufructuary made alone for a period exceeding nine
years are, in case of termination of the usufruct, binding with
regard to the bare-owner only for the time remaining to run,
either of the first period of nine years where the parties are
still in it, or of the second period, and so on in order that the
lessee has only the right to conclude the enjoyment of the period
of nine years in which he is.
Leases of nine years or under which an usufructuary alone makes or
renews more than three years before termination of a current lease
where it relates to rural property, or more than two years before
the same time where it relates to houses, are without effect,
unless their performance began before termination of the usufruct.
A usufructuary may not, without the assistance of the bare-owner,
give on lease a rural tenement or an immovable intended for
commercial, industrial or craft use. Failing assent of the
bare-owner, a usufructuary may be authorized by a court to do that
transaction alone.
Art. 596
A usufructuary enjoys the increase
resulting from alluvion to the thing of which he has the usufruct.
Art. 597
He enjoys the rights of servitude, of
way and generally all rights which an owner may enjoy, and he
enjoys them in the same way as the owner himself.
Art. 598
He also enjoys, in the same way as the
owner, mines and quarries which are being worked when the usufruct
begins; where, however, a working which may not be carried on
without a concession is concerned, a usufructuary may enjoy it
only after gaining permission from the President of the Republic.
He has no right to mines and quarries not yet opened, or to peat
bogs whose working has not yet begun, or to a treasure-trove which
may be discovered during the duration of the usufruct.
Art. 599
An owner may not, by his acts or in
any manner whatsoever, injure the rights of a
usufructuary.
On his part, a usufructuary may not, on termination of the
usufruct, claim any compensation for the improvements which he
asserts to have made, even though the value of the thing has been
increased thereby.
He or his heirs may however remove mirrors, pictures and other
ornaments which he may have set up, but provided he restores the
premises to their former condition.
Section
II - Of the Obligations of a
Usufructuary
Art. 600
A usufructuary takes things in the
condition in which they are; but he may enter into enjoyment only
after having an inventory of the movables and a statement as to
the immovables subject to the usufruct drawn up, the owner being
present or he having been duly summoned.
Art. 601
He shall give security to enjoy as a
prudent administrator, unless he is dispensed with by the
instrument creating the usufruct; however, the father and mother
who have the legal usufruct of their children's property, a seller
or donor who reserved the usufruct, are not obliged to give
security.
Art. 602
Where a usufructuary does not find a
security, the immovables shall be given on lease or
sequestered;
Sums included in the usufruct shall be invested;
Commodities shall be sold and the proceeds arising out of it shall
be likewise invested;
The interest on those sums and the proceeds of leases shall belong
in that case to the usufructuary.
Art. 603
Failing a security on the part of a
usufructuary, an owner may demand that movables which fall into
decay through use be sold, and the proceeds invested like that of
commodities; the usufructuary shall then enjoy the interest during
his usufruct: however, a usufructuary may request, and the judges
may order, according to the circumstances, that a part of the
movables necessary for his use be left to him, on his own mere
guarantee given on oath, and subject to the condition of
presenting them again on termination of the usufruct.
Art. 604
Delay in giving security does not
deprive a usufructuary of the fruits to which he may be entitled:
they are owed to him from the time when the usufruct began.
Art. 605
A usufructuary is only bound to
repairs of maintenance.
Major repairs remain the responsibility of the owner, unless they
were occasioned by the lack of repairs of maintenance since the
beginning of the usufruct; in which case the usufructuary is also
liable for them.
Art. 606
Major repairs are those to main walls
and vaults, the restoring of beams and of entire
coverings;
That of dams, breast walls and enclosing walls also in entirety.
All other repairs are of maintenance.
Art. 607
Neither an owner nor a usufructuary
are bound to rebuild what has fallen from decay or has been
destroyed by a fortuitous event.
Art. 608
A usufructuary is liable during his
enjoyment for all the annual charges upon the property, such as
taxes and others which, according to usage, are deemed to be
charges on the fruits.
Art. 609
As to charges that may be imposed upon
the ownership for the duration of the usufruct, an owner and a
usufructuary contribute to them as follows:
The owner is bound to pay them and the usufructuary must account
to him for interest;
Where they are advanced by the usufructuary, he may claim the
capital at the end of the usufruct.
Art. 610
A legacy, made by a testator, of a
life annuity or of periodical payments, must be paid wholly by the
universal legatee of the usufruct, and by a legatee by universal
title of the usufruct in proportion to his enjoyment, without any
claiming back on their part.
Art. 611
A specific usufructuary is not liable
for debts for which the tenement is mortgaged: where he is
compelled to pay them, he has a remedy against the owner, subject
to what is provided for in Article 1020 in the Title Of Gifts
Inter Vivos and of Wills.
Art. 612
A usufructuary, either universal, or
by universal title, shall contribute with the owner to the payment
of debts as follows:
The value of the tenement subject to usufruct shall be appraised;
the contribution to the debts shall be then fixed, in accordance
with that value.
Where a usufructuary wishes to advance the sum for which the
tenement is liable, the capital shall be restored to him at the
end of the usufruct, without any interest.
Where a usufructuary does not wish to make that advance, the owner
has the choice either to pay that sum, in which case the
usufructuary shall account to him for interest during the duration
of the usufruct, or to have a portion of the property subject to
the usufruct sold to the extent of the amount
due.
Art. 613
A usufructuary is obliged to pay only
the costs of the suits relating to enjoyment and of the other
orders to which those suits may give rise.
Art. 614
Where during the duration of an
usufruct a third party commits any encroachment upon the tenement,
or interferes in any other way with the rights of the owner, the
usufructuary is bound to notify the latter thereof; failing which,
he is liable for all loss which may result from it to the owner,
as he would be for dilapidations committed by
himself.
Art. 615
Where an usufruct is established only
over an animal which happens to die without the fault of the
usufructuary, the latter is not bound to return another one, or to
pay an appraisal of it.
Art. 616
(Act n° 60-464 of 17 May 1960)
Where a herd upon which a usufruct
was established perishes entirely by accident or disease and
without the fault of the usufructuary, the latter is bound to
account to the owner only for the skins, or of their value
appraised at the date of restitution.
Where the herd does not perish entirely, the usufructuary is bound
to replace the heads of the animals that have perished, to the
extent of the increase in stock.
Section III - Of
the Manner in which a Usufruct comes to an
End
Art. 617
A usufruct is
extinguished:
By the natural [repealed by implication] death of the
usufructuary;
By the expiry of the time for which it was
granted;
By the consolidation or vesting in the same person of the two
capacities of usufructuary and of owner;
By non-user of the right during thirty years;
By the total loss of the thing upon which the usufruct was
established.
Art. 618
Usufruct may also cease through abuse
which a usufructuary makes of his enjoyment, either by committing
dilapidations upon the tenement, or by allowing it to decay for
want of maintenance.
Creditors of a usufructuary may intervene in controversies, for
the preservation of their rights; they may offer to repair the
dilapidations committed and to give guarantees for the
future.
Judges may, according to the seriousness of the circumstances,
order either the absolute extinguishment of the usufruct, or the
re-entry of the owner into the enjoyment of the thing subject
thereto, provided that he pays annually to the usufructuary, or to
his assigns, a fixed sum, up to the time when the usufruct should
have ceased.
Art. 619
A usufruct which is not granted to
private individuals may last only thirty years.
Art. 620
A usufruct granted until a third party reaches a fixed
age lasts until that time, even though the third party dies before
the fixed age.
Art. 621
The sale of a thing subject to
usufruct involves no change in the right of the usufructuary; he
continues to enjoy his usufruct unless he has formally waived
it.
Art. 622
Creditors of a usufructuary may have a
waiver annulled, where it was prejudicial to them.
Art. 623
Where a part only of a thing subject
to usufruct is destroyed, usufruct is preserved on what remains.
Art. 624
Where a usufruct is established only
on a building, and that building is destroyed by fire or other
accident, or collapses from decay, the usufructuary may not have
the right to enjoy the ground or the materials.
Where the usufruct was established on an area of which the
building was a part, the usufructuary enjoys the ground and the
materials.
CHAPTER
II - OF USE AND OF HABITATION
Art. 625
Rights of use and habitation are
established and lost in the same manner as
usufruct.
Art. 626
They may not be enjoyed unless
security has been previously given, and statements and inventories
made, as in the case of usufruct.
Art. 627
A user and a person having a right of
habitation shall enjoy like prudent administrators.
Art. 628
Rights of use and of habitation are
regulated by the instruments which have established them and are
more or less extensive, depending upon their provisions.
Art. 629
Where an instrument does not make
clear the extent of these rights, they shall be regulated as
follows.
Art. 630
A person who has the use of the fruits
of a tenement may only demand what is necessary for his needs and
those of his family.
He may demand them even for the needs of children arrived since
the granting of the use.
Art. 631
A user may neither transfer nor lease
his right to another person.
Art. 632
He who has a right of habitation in a
house, may live there with his family, even though he was not
married at the time when that right was granted to him.
Art. 633
A right of habitation is restricted to
what is necessary for the habitation of the person to whom that
right is granted, and of his family.
Art. 634
A right of habitation may not be
transferred or leased.
Art. 635
Where an user takes all the fruits of
a tenement, or occupies the whole of a house, he is subjected to
the expenses of cultivation, repairs of maintenance and payment of
taxes, like a usufructuary.
Where he takes only a part of the fruits or occupies only a part
of a house, he shall contribute in proportion to what he
enjoys.
Art. 636
Use of woods and forests is regulated
by a specific legislation.
TITLE
IV
OF SERVITUDES OR LAND SERVICES
Art. 637
A servitude is a charge imposed on an
immovable for the use and utility of another immovable belonging
to another owner.
Art. 638
A servitude may not establish any
pre-eminence of an immovable over the other.
Art. 639
It results either from the natural
location of the premises, or from obligations imposed by statute,
or from agreements between owners.
CHAPTER I - OF
THE SERVITUDES ORIGINATING FROM THE SITUATION OF THE
PREMISES
Art. 640
Lower tenements are subjected to those
which are higher, to receive waters which flow naturally from them
without the hand of man having contributed
thereto.
A lower owner may not raise dams which prevent that
flow.
An upper owner may not do anything that worsens the servitude of
the lower tenement.
Art. 641
(Act of 8 April 1898)
An owner has the right to use and
dispose of rainwater which falls on his
tenement.
Where the use of those waters or the course given to them worsens
the natural servitude of flow established by Article 640, a
compensation is due to the owner of the lower
tenement.
The same provision shall apply to spring waters originating on a
tenement.
Where, by borings or subterranean works, an owner causes waters to
rise from his tenement, the owners of lower tenements must receive
them; but they are entitled to compensation in case of loss
resulting from their flow.
Houses, courts, gardens, parks and enclosures adjoining dwellings
may not be subjected to any worsening of the servitude of flow in
the cases provided for in the preceding
paragraphs.
Controversies which the establishment and exercise of the
servitudes provided for by these paragraphs may give rise to, and
the settlement, if any, of the compensations due to the owners of
lower tenements, must be brought, subject to review, before the
judge of the tribunal d'instance of the canton who,
in his judgment must reconcile the interests of agriculture
and industry with the respect due to ownership.
If there is occasion for an appraisement, one expert only may be
appointed
Art. 642
(Act of 8 April 1898)
A person who has a spring on his
tenement may always use the water on his wishes, within the limits
and for the needs of his property.
An owner of a spring may no longer use it to the detriment of the
owners of the lower tenements who, for more than thirty years,
have made and completed, on the tenement where the water springs,
apparent and permanent works intended to use the waters and
facilitating their passage within their
property.
Nor may he use them so as to deprive the inhabitants of a
commune, village or hamlet, of the water which is necessary
to them; but where the inhabitants have not acquired or prescribed
the use, the owner may claim a compensation which shall be fixed
by experts.
Art. 643
(Act of 8 April 1898)
Where, as soon as they leave the
tenement where they spout out, spring waters form a watercourse
presenting the nature of public and running waters, the owner may
not divert them from their natural course, to the detriment of
lower users.
Art. 644
A person whose property borders
running water other than that which is declared a dependency of
the Public Domain by Article 538 in the Title Of Different
Kinds of Property, may use it as it flows for irrigating his
property.
A person through whose property that water flows may even use it
over the interval it runs through it, provided he returns it to
its ordinary course when it leaves his tenements.
Art. 645
Where a controversy arises between
owners to whom those waters may be useful, the courts, in their
decisions, must reconcile the interests of agriculture with the
respect due to ownership; and, in all cases, the special and local
regulations on the course and use of waters must be complied
with.
Art. 646
Any owner may compel his neighbour
to a setting of boundaries of their contiguous tenements.
Setting boundaries shall be done at common
expense.
Art. 647
An owner may enclose his property,
subject to the exception laid down in Article
682.
Art. 648
An owner who wishes to be enclosed
loses his right to commonage and free pasture, in proportion to
the land that he so withdraws.
CHAPTER
II - OF THE SERVITUDES ESTABLISHED BY
STATUTE
Art. 649
Servitudes established by statute are
for the purpose of public or communal utility, or of the utility
of private individuals.
Art. 650
Those established for public or
communal utility have as their subjects towing-paths along
navigable or floatable streams, the making or repairing of roads
and of other public or municipal works.
All that relates to that kind of servitudes is prescribed by
statutes or specific regulations.
Art. 651
The law subjects owners to various
obligations towards each other, independent of any
agreement.
Art. 652
Part of those obligations are
regulated by statutes on rural police;
The others relate to party walls and common ditches, to cases in
which an outer wall is necessary, to views over the property of a
neighbour, to eaves and to right of way.
Section I - Of
Party Walls and Common Ditches
Art. 653
In cities and in the country, any wall
serving as separation between buildings up to the point of
disjunction, or between courtyards and gardens, and even between
enclosures in fields, is deemed to be a party wall, unless there
is an instrument of title or an indication to the contrary.
Art. 654
There is an indication of a non-party
wall where the top of a wall is straight and perpendicular from
its facing on one side and shows an inclined plane on the
other;
Even where there is on one side only either a coping or stone
fillets and corbels which were placed there in building the wall.
In such cases, a wall is deemed to belong exclusively to the owner
on whose side the eaves or stone corbels and fillets are.
Art. 655
Repairing and reconstruction of a
party wall must be borne by all those who have a right to it, and
in proportion to the right of each.
Art. 656
However, any co-owner of a party wall
may excuse himself from contributing to repairing and
reconstructing by waiving the right in common, provided the party
wall does not support a building which belongs to
him.
Art. 657
A co-owner may build against a party
wall, and place there beams or joists through the whole thickness
of the wall, more or less fifty-four millimetres, without
prejudice to a neighbour's right to have the beam shortened with a
chisel down to half of the wall, where he himself wishes to lay
beams in the same place, or to back a chimney against it.
Art. 658
(Act n° 60-464 of 17 May 1960)
A co-owner may have a party wall
raised; but he must pay alone the expense of the raising and of
the repairs of maintenance above the height of the common
enclosure; he must also pay alone the costs of maintenance of the
common part of the wall due to the raising and repay to the
neighbouring owner all the expenses made necessary for the latter
by the raising.
Art. 659
Where a party wall is not in a
condition to support a raising, the person wishing to raise it
must have it entirely rebuilt at his own expense, and the
thickness in excess must be taken on his side.
Art. 660
(Act n° 60-464 of 17 May 1960)
A neighbour who did not contribute to
a raising may acquire rights in common on it by paying one-half of
the expense it has cost and the value of one-half of the ground
supplied for the additional thickness, if there is any. The
expense that the raising has cost must be appraised at the date of
acquisition, account being taken of the condition in which the
raised part of the wall is.
Art. 661
(Act n° 60-464 of 17 May 1960)
An owner adjoining a wall may make it
a party wall in whole or in part by repaying to the master of the
wall half the expense which it has cost, or half the expense which
the part of the wall which he wishes to make a party wall has cost
and half the value of the ground on which the wall was built. The
expense which the wall has cost must be appraised at the date of
acquisition of rights in common on it, account being taken of the
condition in which it is.
Art. 662
A neighbour may not make a recess in a
party wall or apply or build up a work on it without the consent
of the other, or, on his refusal, without having had experts
determine the necessary steps in order that the new work be not
detrimental to the other's rights.
Art. 663
In cities and suburbs, everyone may
compel his neighbour to contribute to the constructions and
repairs of an enclosure separating their houses, court-yards and
gardens situated in those cities and suburbs: the height of the
enclosure shall be fixed according to specific regulations or
uniform and recognized usages and, failing usages and regulations,
a dividing wall between neighbours, which will be constructed or
restored in the future, shall be at least thirty-two decimetres
high, including the coping, in cities of fifty thousand souls and
more, and twenty-six decimetres in the others.
Art. 664 [repealed]
Art. 665
Where a party wall or a house is
rebuilt, active and passive servitudes continue with regard to the
new wall or the new house, without, however, their being allowed
to become more burdensome, and provided rebuilding is made before
prescription is acquired.
Art. 666
(Act of 20 Aug. 1881)
Every enclosure separating tenements
is deemed to be held in common, unless there is only one property
actually enclosed, or there is an instrument of title,
prescription or indication to the contrary.
As regards ditches, there is an indication that they are not held
in common where the embankment or spoil of earth is found on only
one side of the ditch.
A ditch is deemed to belong exclusively to the one on whose side
the spoil is situated.
Art. 667
(Act of 20 Aug. 1881)
A common enclosure must be maintained
at common expense; but a neighbour may elude that obligation by
waiving ownership in common.
That power ceases where the ditch serves usually for the flowing
of waters.
Art. 668
(Act of 20 Aug. 1881)
A neighbour whose property adjoins a
ditch or a hedge not held in common may not compel the owner of
that ditch or hedge to convey rights in common to
him.
A co-owner of a common hedge may destroy it up to the limit of his
property, provided he builds a wall upon that
limit.
The same rule shall apply to the co-owner of a common ditch which
is used only as an enclosure.
Art. 669
(Act of 20 Aug. 1881)
So long as a hedge is held in common,
its products belong to the owners in halves.
Art. 670
(Act of 20 Aug. 1881)
Trees situated in a common hedge are
held in common as the hedge is. Trees planted on the dividing line
of two tenements are also deemed to be held in common. Where they
die or are cut or uprooted, those trees are divided in halves.
Fruits are gathered at joint expense and divided also in halves,
either when they fall naturally, or when the fall was caused, or
when they were picked.
Each owner has the right to require that the trees held in common
be uprooted.
Art. 671
(Act of 20 Aug. 1881)
It is permitted to have trees, shrubs
or bushes near the limit of a neighbouring property only at the
distance allowed by the specific regulations presently in force or
by uniform and recognized usages, and failing regulations and
usages, at the distance of two metres from the dividing line of
the two tenements as regards plantations whose height exceeds two
metres, and at the distance of half a metre as regards other
plantation.
Trees, bushes and shrubs of all kinds may be planted in espaliers
on each side of a dividing wall, without having to keep to any
distance, but they may not pass the crest of the
wall.
Where a wall is not a party wall, the owner alone has the right to
lean espaliers against it.
Art. 672
(Act of 20 Aug. 1881)
A neighbour may require that trees,
shrubs and bushes planted at a distance less than the statutory
distance, be uprooted or reduced to the height fixed in the
preceding Article, unless there is an instrument of title, an
adjustment made by the owner, or thirty-year
prescription.
Where the trees die, or where they are cut or uprooted, a
neighbour may replace them only by keeping to the statutory
distances.
Art. 673
(Act of 20 Aug. 1881; Act of 12 Feb.
1921)
One over whose property branches of a
neighbour's trees, bushes and shrubs jut out may compel the latter
to cut them. Fruits which have fallen naturally from these
branches belong to him.
Where roots, brambles and brushwood jut out on his property, he
has the right to cut them himself up to the limit of the dividing
line.
The right to cut roots, brambles and brushwood or to have branches
of trees, bushes or shrubs cut may not be lost by
prescription.
Section II
- Of theDistance and of Intermediate Works Required for
Certain Constructions
Art. 674
He who has a well or a cesspool dug
near a wall, whether it is a party wall or not,
He who wishes to build a chimney or a fire-place, a forge, an oven
or a furnace,
Set a stable against it,
Or place against that wall a store of salt or a heap of corrosive
materials;
Is obliged to leave the distance prescribed by regulations and
specific usages relating to those things, or to do the works
prescribed by the same regulations and usages in order to avoid
injuring a neighbour.
Section III –
Of the Views over the Property of One's
Neighbour
Art. 675
One of the neighbours may not, without
the consent of the other, cut in a party wall any window or
opening, in any manner whatever, even in fixed
fanlights.
Art. 676
The owner of a wall which is not a
party wall, adjoining the property of another person, may cut
openings or windows in it, in leaded iron and fixed fanlights.
Those windows must be provided with an iron lattice whose meshes
shall have an aperture of one decimetre (about three inches, eight
lines) at the most, and with a frame of fixed
fanlights.
Art. 677
Those windows or openings may only be
made at twenty six decimetres (eight feet) above the floor or
ground of the room which one wishes to give light to, where it is
on the ground floor, and at nineteen decimetres (six feet) above
the floor of the upper stories.
Art. 678
(Act n° 67-1253 of 30 Dec.
1967)
One may not have straight views or bow
windows, or balconies or similar projections over the neighbour's
property, whether enclosed or not, if there is not a distance of
nineteen decimetres between the wall where they are cut and the
said property, unless the tenement or the part of the tenement
over which the view bears is already burdened, for the benefit of
the tenement which profits by it, with a servitude of way which
prevents the erecting of constructions.
Art. 679
(Act n° 67-1253 of 30 Dec.
1967)
One may not, subject to the same
reservation, have side or oblique views on the same property,
unless there is a distance of six decimetres.
Art. 680
The distance mentioned in the two
preceding Articles counts from the outer facing of the wall in
which the opening is cut, and, where there are balconies or other
similar projections, from their exterior line up to the dividing
line of the two tenements.
Section IV - Of
Eaves
Art. 681
An owner must make his roofs in such a
way that rainwater falls on his land or on the public highway; he
may not have it pour on his neighbour's
tenement.
Section V - Of
Right of Way
Art. 682
(Act n° 67-1253 of 30 Dec.
1967)
An owner whose tenements are enclaved
and who has no way out to the public highway, or only one which is
insufficient either for an agricultural, industrial or commercial
working of his property, or for carrying out operations of
building or development, is entitled to claim on his neighbours'
tenements a way sufficient for the complete servicing of his own
tenements, provided he pays a compensation in proportion to the
damage he may cause.
Art. 683
(Act of 20 Aug. 1881)
The way must be taken regularly on the
side where the route from the enclaved tenement to the public
highway is shortest
It must however be fixed at the least damageable place for the
person over whose tenement it is allowed.
Art. 684
(Act of 20 Aug. 1881)
Where a tenement is enclosed because
of its dividing in consequence of a sale, an exchange, a partition
or any other contract, a way may be requested only on the lands
which were the subject of those transactions.
However, in the case where a sufficient way cannot be made over
the divided tenements, Article 682 shall apply.
Art. 685
(Act of 20 Aug. 1881)
The location and manner of a servitude
of way for enclavement are established by a continuous usage for
thirty years.
An action for compensation in the case provided for in Article 682
is subject to be time-barred, and the way may be continued,
although an action for compensation is no longer admissible.
Art. 685-1
(Act n° 71-494 of 25 June
1971)
In case of discontinuance of the
enclavement and whatever be the way in which the location and
manner of the servitude were determined, the owner of the servient
tenement may, at any time, invoke the extinguishment of the
servitude where the service of the dominant tenement is ensured
under the conditions of Article 682.
Failing amicable agreement, that disappearance must be ascertained
by a judicial decision.
CHAPTER III - OF THE SERVITUDES ESTABLISHED BY THE ACT
OF MAN
Section
I - Of the Various Kinds of Servitudes which may be
Established over Property
Art. 686
Owners are permitted to establish over
their property, or in favour of their property, such servitudes as
they deem proper, provided however that the services
established are laid neither on a person nor in favour of a
person, but only on a tenement and for a tenement, and provided
that those servitudes moreover are not in any way contrary to
public policy.
The use and extent of the servitudes thus established are
regulated by the instrument which creates them; failing an
instrument, by the following rules.
Art. 687
Servitudes are established either for
the use of buildings, or for that of tenements.
Those of the first kind are called urban, whether the
buildings to which they are due are located in a city or in the
country.
Those of the second kind are named rural.
Art. 688
Servitudes are either continuous or
discontinuous.
Continuous servitudes are those whose usage is or may be unceasing
without need of a present act of man: such are water-pipes,
sewers, views and others of that kind.
Discontinuous servitudes are those which need a present act of man
in order to be exercised: such are rights of way, drawing water,
pasturing and others similar.
Art. 689
Servitudes are apparent or
non-apparent.
Apparent servitudes are those which show themselves by outer
works, such as a door, a window, an aqueduct.
Non-apparent servitudes are those which do not have an outer sign
of their existence, such as for instance a prohibition to build on
a tenement, or to build only up to a fixed
height.
Section II -
How Servitudes are Established
Art. 690
Continuous and apparent servitudes are
acquired by an instrument of title or by possession of thirty
years.
Art. 691
Continuous non-apparent servitudes and
discontinuous servitudes, whether apparent or not, may be
established only by an instrument of title.
Possession, even immemorial, is not sufficient to establish them,
without, however, one being allowed to challenge today servitudes
of that kind already acquired by possession in localities where
they were allowed to be acquired in that way.
Art. 692
Adjustment made by the owner is
equivalent to an instrument of title as to continuous and apparent
servitudes.
Art. 693
There is an adjustment made by the
owner only where it is proved that the two tenements at present
divided belonged to the same owner and that it was through him
that things were put in the condition which gives rise to the
servitude.
Art. 694
Where an owner of two tenements
between which an apparent sign of servitude exists, disposes of
one property and the contract does not contain any agreement
relating to the servitude, the latter continues to exist actively
or passively in favour of the tenement conveyed or upon the
tenement conveyed.
Art. 695
An instrument creating a servitude,
with regard to those which may not be acquired by prescription,
may be replaced only by an instrument recognizing the servitude,
emanating from the owner of the tenement subjected to the
servitude.
Art. 696
Where a person establishes a
servitude, he is deemed to grant all that is necessary to use
it.
For instance, a servitude to draw water from another's fountain
necessarily involves a right of way.
Section
III - Of the Rights of the Owner of a Tenement to which a
Servitude is Due
Art. 697
A person to whom a servitude is due,
has the right to make all works necessary to use and maintain
it.
Art. 698
Those works shall be at his expense,
and not at that of the owner of the tenement subjected to the
servitude, unless the instrument creating the servitude provides
for the contrary.
Art. 699
Even in the case where the owner of a
tenement subjected to a servitude is compelled under the
instrument to make the works necessary for the use or preservation
of a servitude at his own expense, he may always exempt himself
from the burden by waiving the servient tenement to the owner of
the tenement to which the servitude is due.
Art. 700
Where a property for which a servitude
was established happens to be divided, the servitude remains due
for each portion, without however the condition of the servient
tenement becoming more burdensome.
Thus, for instance, in case of a right of way, all the co-owners
are obliged to use it at the same place.
Art. 701
The owner of a tenement which owes a
servitude may do nothing tending to diminish its use or to make it
more inconvenient.
Thus, he may not change the condition of the premises or remove
the exercise of the servitude to a place different from the one
where it was originally assigned.
But however, where that original assigning has become more onerous
to the owner of the servient tenement, or where it prevents him
from making advantageous repairs on it, he may offer to the owner
of the other tenement a place as convenient for the exercise of
his rights, and the latter may not refuse it.
Art. 702
On his part, he who has a right of
servitude may only use it in accordance with his instrument of
title, without being allowed to make, either on the tenement which
owes the servitude, or on the tenement to which it is due, any
change which would render the condition of the former more
burdensome.
Section IV -
How Servitudes are Extinguished
Art. 703
Servitudes cease when things are in
such a condition that they can no longer be
used.
Art. 704
They revive where things are restored
in such a manner that they can be used; unless time has already
elapsed, sufficient to give rise to the presumption that the
servitude is extinguished, as stated in Article
707.
Art. 705
A servitude is extinguished when the
tenement to which it is owed, and the one which owes it, are
united in the same hands.
Art. 706
A servitude is extinguished by
non-user during thirty years.
Art. 707
The thirty years begin to run,
according to the different kinds of servitudes, either from the
day when one ceased to enjoy them, with respect to discontinuous
servitudes, or from the day when an act contrary to the servitude
has been performed, with respect to continuous
servitudes.
Art. 708
The manner of a servitude may be
time-barred like the servitude itself and in the same
way.
Art. 709
Where a property in favour of which a
servitude is established belongs to several persons in undivided
ownership, enjoyment by one prevents prescription against all of
them.
Art. 710
Where, among co-owners, there is one
against whom prescription could not run, such as a minor, he keeps
the rights of all the others.
OF THE
VARIOUS WAYS IN WHICH OWNERSHIP IS ACQUIRED
general provisions
Art. 711
Ownership of property is acquired and
transmitted by succession, by gift inter vivos or will, and by the
effect of obligations.
Art. 712
Ownership is also acquired by
accession or incorporation, and by prescription.
Art. 713
Property which has no master belongs
to the State.
Art. 714
There are things which belong to
nobody and whose usage is common to all.
Public order statutes regulate the manner of enjoying
them.
Art. 715
The right to hunt or fish is also
regulated by specific statutes.
Art. 716
Ownership of a treasure trove belongs
to him who discovers it on his own tenement; where a treasure
trove is discovered on another's tenement, one half of it belongs
to him who discovered it, and the other half to the owner of the
tenement.
A treasure trove is any hidden or buried thing of which nobody can
prove ownership and which is discovered by a mere
chance.
Art. 717
Rights to flotsam, to effects cast up
by the sea, of whatever nature they may be, to plants and herbages
which grow on the seashore, are also regulated by specific
statutes.
It shall be the same as to lost things whose master does not
appear.
TITLE
ONE
OF SUCCESSIONS
Art. 718 and 719 [repealed]
CHAPTER ONE - OF
THE OPENING OF SUCCESSIONS, THE UNIVERSAL TITLE AND THE
VESTING OF HEIRS IN POSSESSION
(Act n° 2001-1135 of 3 Dec.
2001)
Art. 720
Successions are opened by death, at
the latest domicile of the deceased .
Art. 721
Successions devolve according to
legislation where the deceased did not dispose of his property by
gratuitous transfers .
They may devolve through gratuitous transfers insofar as the
latter are consistent with inheritable reserve.
Art. 722
Agreements having the purpose of
creating or disclaiming rights upon all or part of a succession
not yet opened or of a property being part of it are effective
only where authorized by legislation .
Art. 723
Universal successors and successors by
universal title are liable for an indefinite obligation to the
debts of a succession .
Art. 724
Heirs designated by legislation are
vested by operation of law in possession of the property, rights
and actions of the deceased ;
Universal legatees and donees are vested in possession in the
conditions provided for in Title II of this Book.
Failing them, succession is acquired by the State who needs a
court order to take possession .
Art. 724-1
The provisions of this Title, in
particular those which relate to option, undivided ownership and
partition shall apply, as may be thought proper, to universal
legatees or donees, or legatees or donees by universal title, save
as otherwise provided by a specific rule .
CHAPTER II - OF
THE QUALIFICATIONS REQUIRED FOR INHERITING OF PROOF OF
HEIRSHIP
(Act n° 2001-1135 of 3 Dec.
2001)
Section I - Of theQualifications Required for
Inheriting
Art. 725
In order to inherit, one must exist at
the time of the opening of the succession or, having been
conceived, be born viable .
A person whose absence is presumed under Article 112 may inherit
.
Art. 725-1
Where two persons, one of whom was
entitled to the other's succession, die in the same event, the
order of deaths shall be established by any means.
Where that order may not be determined, the succession of each of
them devolves without the other being called to
it.
Where, however, one of the co-deceased leaves descendants, the
latter may represent their predecessor in title, when
representation is allowed.
Art. 726
Are unworthy of inheriting and, as
such, must be excluded from succession :
1° One who is sentenced, as perpetrator or accomplice, to a
serious penalty for having intentionally given or attempted to
give death to the deceased;
2° One who is sentenced, as perpetrator or accomplice, to a
serious penalty for having intentionally struck blows at or
committed violence or assault that provoked the deceased’s death
without intention of causing it.
Art. 727
May be declared unworthy of inheriting
:
1° One who is sentenced, as perpetrator or accomplice, to a
correctional penalty for having intentionally given or attempted
to give death to the deceased;
2° One who is sentenced, as perpetrator or accomplice, to a
correctional penalty for having intentionally committed
violence that provoked the deceased's death without
intention of causing it;
3° One who is sentenced for false testimony borne against the
deceased in criminal proceedings;
4° One who is sentenced for abstaining intentionally from
preventing either a serious or an ordinary offence against the
physical integrity of the deceased, wherefrom death resulted,
whereas he could do so without any danger as to him or third
persons ;
5° One who is sentenced for a slanderous criminal charge against
the deceased where, relating to the acts denounced, a serious
penalty was incurred ;
May also be declared unworthy of inheriting those who have
committed acts referred to in 1° and 2° above and with regard to
whom, by reason of their death, the public right of action could
not be exercised or was extinguished .
Art. 727-1
A declaration of unworthiness provided
for in Article 727 shall be pronounced after the opening of the
succession by the tribunal de grande instance on
application of another heir. An application must be brought within
six months of the death where the sentence or conviction precedes
the death, or within six months of that judgment where it
follows the death .
In the absence of heirs, a request may be filed by the Government
procurator's office.
Art. 728
Is not excluded from succession a
person entitled to inherit subject to a cause of unworthiness
provided for in Articles 726 and 727, where the deceased, after
the facts and the knowledge he had thereof, has stated by an
express declaration of intention in the form of a will, that he
intends to maintain him in his rights to succession or made a
gratuitous transfer, universal or by universal title, in his
favour.
Art. 729
An heir who is excluded from a
succession on account of unworthiness is obliged to return all
incomes and revenues which he enjoyed since the opening of the
succession .
Art. 729-1
Children of an unworthy person
may not be excluded on account of their parent's fault, whether
they come to the succession on their own behalf or through
representation; but an unworthy person may not, in any case, claim
over the property of that succession the enjoyment that the law
grants to the fathers and mothers over the property of their
children.
Section II
- Of Proof of Heirship
Art. 730
Proof of heirship may be made by any
means.
No changes are made in the provisions or uniform usages relating
to the issuing of certificates of ownership or inheritance by
judicial or administrative authorities.
Art. 730-1
Proof of heirship may result from an
affidavit drawn up by a notaire on request of one or
several assigns.
Failing an ante-nuptial agreement or last will and testament of
the predecessor in title of the person who requires it, an
affidavit may also be drawn up by the clerk in chief of the
tribunal d'instance of the place of opening of the
succession.
An affidavit shall refer to the record of death of the person
whose succession is opened and shall mention the supporting
documents which may have been filed, such as records of civil
status, and, possibly, documents relating to the existence of
gratuitous transfers mortis causa which may affect the devolution
of the succession.
It shall contain the assertion, signed by the assign or assigns
makers of the request, that they are entitled, alone or with
others whom they specify, to come into all or part of the
succession of the deceased.
Any person whose statements seem to be useful may be called to the
affidavit.
Art. 730-2
An assertion contained in an affidavit
does not involve, per se, acceptance of the
succession.
Art. 730-3
Faith must be given to an affidavit so
established, until evidence contrary to it.
A person who avails himself of it is presumed to have rights of
succession in the percentage herein stated.
Art. 730-4
The heirs designated in an affidavit
or their common agent are deemed, with regard to third persons
possessing property of the succession, to have free disposal of
that property and, where funds are concerned, free disposal of
them in the percentage stated in the affidavit.
Art. 730-5
A person who, knowingly and in bad
faith, avails himself of an inaccurate affidavit, incurs the
penalties of concealment provided for in Article 792, without
prejudice for damages.
CHAPTER III - OF
HEIRS
(Act n° 2001-1135 of 3 Dec.
2001)
Art. 731
Succession devolves by law to the
relatives and spouse entitled to inherit on the following
terms.
Art. 732
A surviving spouse non-divorced,
against whom there does not exist an order of judicial separation
having force of res judicata is a spouse entitled to
inherit.
Section
I - Of the Rights of Relatives in the Absence of a Spouse
Entitled to Inherit
Art. 733
Legislation does not discriminate
between legitimate and illegitimate children in order to determine
relatives called to inherit .
Rights resulting from adoption are regulated in the Title Of
Adoption.
§ 1 - Of Orders of
Heirs
Art. 734
In the absence of a spouse entitled to
inherit, relatives are called to succeed as
follows:
1° Children and their descendants;
2° The father and mother; brothers and sisters and the descendants
of the latter;
3° Ascendants other than the father and mother;
4° Collaterals other than brothers and sisters and the descendants
of the latter.
Each of these four categories constitutes an order of heirs which
excludes the following.
Art. 735
Children or their descendants succeed
to their father and mother or other ascendants, without
distinction of sex or primogeniture, even where born of different
marriages.
Art. 736
Where a deceased leaves neither
descendants, nor brother or sister, or descendants of the latter,
his father and mother inherit from him, each one taking one
half.
Art. 737
Where the father and mother have died
before the deceased and the latter leaves no descendants, the
brothers and sisters of the deceased or their descendants inherit
from him, excluding the other relatives, ascendants or
collaterals.
Art. 738
Where the father and mother outlive
the deceased and the latter has no descendants, but brothers and
sisters or descendants of the latter, one-quarter of the
succession devolves to each one of the father and mother, and the
remaining half to the brothers and sisters or to their
descendants.
Where only one of the father and mother survives, one-quarter of
the succession devolves to the latter, and three-quarters to the
brothers and sisters or to their descendants .
Art. 739
Failing heirs of the first two orders,
succession devolves to ascendants other than the father and mother
.
Art. 740
Failing heirs of the first three
orders, succession devolves to collateral relatives of the
deceased other than brothers and sisters and the descendants of
the latter .
§ 2 - Of
Degrees
Art. 741
The proximity of relationship is
established by the number of generations; each generation is
called a degree .
Art. 742
The sequence of degrees forms the
line; the sequence of degrees between persons descending one from
the other is called the direct line; the sequence of degrees
between persons who do not descend one from the other, but who
descend from a common ancestor, is called the collateral
line.
Descending direct line is separated from ascending direct
line.
Art. 743
In the direct line, as many degrees
are counted as there are generations between the persons: thus, a
son is, with regard to his father, in the first degree, a grandson
in the second; and reciprocally the father and grandfather with
regard to sons and grandsons.
In the collateral line, degrees are counted by generations from
one of the relatives to and exclusive of the common ancestor, and
from the latter to the other relative.
Thus, two brothers are relatives in the second degree; uncle and
nephew are in the third degree; first cousins in the fourth
degree; and so on.
Art. 744
In each order, the heir who is in the
nearest degree excludes an heir in a later
degree.
In the same degree, heirs inherit in equal shares and by
heads.
The whole, subject to what will be laid down hereafter as to
division by branches and representation.
Art. 745
Collateral relatives may not inherit
beyond the sixth degree.
§ 3 - Of
Division by Branches, Paternal and Maternal
Art. 746
Parenthood is divided into two
branches, depending on whether it proceeds from the father or the
mother.
Art. 747
Where succession devolves to
ascendants, it is divided in halves between those of the paternal
branch and those of the maternal branch.
Art. 748
In each branch, the ascendant who is
in the nearest degree inherits, to the exclusion of all
others.
The ascendants in the same degree inherit by
heads.
Failing an ascendant in a branch, the ascendants of the other
branch shall take the whole succession.
Art. 749
Where succession devolves to
collaterals other than brothers and sisters and their descendants,
it is divided in halves between those of the paternal branch and
those of the maternal branch.
Art. 750
In each branch, the collateral who is
in the nearest degree inherits, to the exclusion of all others.
The collaterals in the same degree inherit by
heads.
Failing a collateral in a branch, the collaterals of the other
branch shall take the whole succession.
§ 4 - Of
Representation
Art. 751
Representation is a fiction of the law
which causes the representative to enter into the rights of the
person represented.
Art. 752
Representation takes place without
limitation in the descending direct line.
It is admitted in all cases, whether the children of the deceased
compete with the descendants of a predeceased child, or whether
all the children of the deceased having died before him, the
descendants of said children are in equal or unequal degrees
between them.
Art. 752-1
Representation does not take place in
favour of ascendants; in each of the two lines, the nearest always
excludes the remotest.
Art. 752-2
In the collateral line, representation
is admitted in favour of children and descendants of brothers or
sisters of the deceased, whether they come to the succession
concurrently with uncles and aunts, or whether, all the brothers
and sisters of the deceased having died before him, the succession
devolves on their descendants in equal or unequal
degree.
Art. 753
In all cases in which representation
is admitted, partition shall be made by stocks, as if the
represented person came to the succession; if there is occasion,
it shall be made by subdivision of stock. Within a stock or
subdivision of stock, partition shall be made by
heads.
Art. 754
One represents predeceased persons,
one does not represent those who have renounced.
One may represent a person to whose succession one has
renounced.
Art. 755
Representation is admitted in favour
of the children and descendants of an unworthy heir, although the
latter is alive on the opening of the
succession.
Children of an unworthy heir conceived before the opening of a
succession of which the unworthy heir was excluded shall return to
the succession of the latter the property they have inherited in
his stead, where they come in competition with other children
conceived after the opening of the first
succession.
Collation shall be made under the provisions of Section 2 of
Chapter VI of this Title .
Section II - Of the Rights of a Spouse Entitled to
Inherit
§ 1 - Of
the Nature of the Rights, of their Amount and
Exercise
Art. 756
A spouse entitled to inherit is called
to a succession either alone, or in competition with the relatives
of a deceased.
Art. 757
Where a predeceased spouse leaves
children or descendants, the surviving spouse shall take, at his
or her option, either the usufruct of the whole of the existing
property or the ownership of the quarter where all the children
are born from both spouses and the ownership of the quarter in the
presence of one or several children who are not born from both
spouses.
Art. 757-1
Where, in the absence of children or
descendants, a deceased leaves his father and mother, the
surviving spouse shall take one half of the property. The other
half devolves for one quarter to the father and for one quarter to
the mother .
Where the father or the mother is predeceased, the share which he
would have taken devolves to the surviving spouse
.
Art. 757-2
In the absence of children or
descendants of the deceased or of his father and mother, the
surviving spouse shall take the whole succession
.
Art.
757-3
Notwithstanding Article 757-2, in case
of predecease of the father and mother and in absence of
descendants, the property that the deceased received from them by
succession or gift and that is found in kind in the succession
devolves for one half to the brothers and sisters of the deceased
or to their descendants, themselves descending from the
predeceased parent or parents from whom the devolution
originates.
Art. 758
Where a surviving spouse takes the
whole or the three quarters of the property, the ascendants of the
deceased, other than the father and mother, who are in need are
entitled to a maintenance obligation against the succession of the
predeceased.
The period within which it may be claimed is of one year after the
death or the moment from which the heirs cease to perform the
payments they made before to the ascendants. In case of undivided
ownership the period shall be extended until the completion of the
partition.
Periodical payments shall be obtained from the succession. They
shall be borne by all the heirs and, in case of insufficiency, by
all the specific legatees, in proportion to what they
received.
If, however, the deceased expressly declared that such legacy
should be paid in preference to the other, Article 927 shall
apply.
Art. 758-1
Where a surviving spouse has an option
between ownership or usufruct, his or her rights may not be
assigned so long as he or she did not exercise the
option.
Art. 758-2
The option of a spouse between
usufruct and ownership may be proved by any
means.
Art. 758-3
Any heir may request in writing a
spouse to exercise his or her option. Where he or she fails to
come to a decision in writing within three months, the spouse
shall be deemed to have chosen the usufruct .
Art. 758-4
Where he or she dies without having
come to a decision, the spouse shall be deemed to have chosen the
usufruct .
Art. 758-5
The calculation of the right in full
ownership of a spouse provided for in Articles 757 and 757-1 must
be effected on an aggregate formed of all the property existing at
the death of his or her spouse to which shall be united
fictitiously that which he or she has disposed with, by an act
inter vivos or testamentary, in favour of persons entitled to
inherit, by way of advancement.
The spouse may exercise his or her right only on property which
the predeceased has not disposed with by act inter vivos or
testamentary, and without prejudicing reserved rights or rights to
collation.
§ 2 -
Of the Conversion of a Usufruct
Art. 759
Any usufruct belonging to a spouse
upon the property of the predeceased, whether it results from
legislation, from a will or from a gift of future property, gives
rise to a power of conversion into a life annuity, on request of
one of the heirs bare-owners or of the spouse himself or herself
entitled to inherit.
Art. 759-1
A power of conversion may not be
renounced . Coheirs may not be deprived of it by the intention of
the predeceased.
Art. 760
Failing an agreement between the
parties, an application for conversion shall be referred to the
judge. It may be instituted until final
partition.
Where he entertains the application for conversion, the judge
shall determine the amount of the annuity, the guarantees which
the debtor heirs shall give, as well as the appropriate kind of
index-linking to maintain the initial equivalence of the annuity
to the usufruct.
The judge, however, may not order against the intention of the
spouse the conversion of the usufruct bearing on the lodging which
he or she occupies as his or her main residence, as well as on the
furniture with which it is fitted.
Art. 761
Through an agreement between the heirs
and the spouse, it may be proceeded to a conversion of the
usufruct of the spouse into a capital.
Art. 762
The conversion of an usufruct is part
of the performing of a partition. It does not produce a
retroactive effect, save stipulations of the parties to the
contrary.
§ 3 -
Of the Temporary Right to Lodging and of the Right for Life to
Lodging
Art. 763
Where, at the time of the death, a
spouse entitled to inherit actually occupies, as his or her main
habitation, a lodging belonging to the spouses or fully depending
upon the succession, he or she has by operation of law, during one
year, the gratuitous enjoyment of that lodging, as well as of the
furniture, included in the succession, with which it is
fitted.
Where his or her habitation was secured through a lease , the
rents thereof shall be repaid to him or her during the year, as
the payments proceed.
The rights provided for in this Article shall be deemed direct
effects of the marriage and not rights of
inheritance;
This Article is mandatory.
Art. 764
Save intention to the contrary
expressed by the deceased in the way provided for in Article 971,
a spouse entitled to inherit who actually occupied, at the time of
the death, as his or her main habitation, a lodging belonging to
the spouses or fully depending upon the succession, has on this
lodging, until his or her death, a right of habitation and a right
of use on the furniture, included in the succession, with which it
is fitted.
Those rights of habitation and of use are exercised subject to the
conditions provided for in Articles 627, 631, 634 and
635.
The spouse, the other heirs, or one of them may insist on an
inventory of the movables and a statement of the immovable
subjected to the rights of use and of habitation being drawn
up.
Notwithstanding Articles 631 and 634, where it results from the
situation of the spouse that the lodging subject to the right of
habitation is no longer adapted to his or her needs, the spouse or
his or her representative may lease it for an use other than
commercial or rural in order to provide necessary means for new
conditions of dwelling.
Art. 765
The value of the rights of habitation
and use shall be appropriated to the value of the rights of
succession taken by the spouse.
Where the value of the rights of habitation and use is lesser than
that of the rights of succession, the spouse may take the
remainder on the existing property.
Where the value of the rights of habitation and use is higher than
that of his or her rights of succession, the spouse is not bound
to compensate the succession on account of the
excess.
Art. 765-1
A spouse has one year after the death
in order to evidence his or her intention to benefit from those
rights of habitation and use.
Art. 765-2
Where the lodging was the subject of a
lease, a spouse entitled to inherit who, at the time of the death,
actually occupied the premises as his or her main habitation
benefits by the right of use upon the furniture, included in the
succession, with which it is fitted.
Art. 766
A spouse entitled to inherit and the
heirs may, by agreement, convert the rights of habitation and use
into a life annuity or a capital.
Where a minor or a protected adult are among the parties to an
agreement, the latter must be authorized by the judge of
guardianships.
§ 4 - Of
the Right to Maintenance
Art. 767
The succession of a predeceased spouse
owes maintenance to a spouse entitled to inherit who is in need.
The period within which to claim it is one year after the death or
the time where the heirs cease to perform the payments they made
before to the spouse. In case of undivided ownership the period
shall be extended until the completion of the
partition.
Periodical payments shall be obtained from the succession. They
shall be borne by all the heirs and, in case of insufficiency, by
all the specific legatees, in proportion to what they received.
If, however, the deceased expressly declared that such legacy
should be paid in preference to the other, Article 927 shall
apply.
CHAPTER IV - OF THE
RIGHTS OF THE STATE
Art. 768
(Ord. n° 58-1307 of 23 Dec.
1958)
In absence of heirs, a succession is
acquired by the State .
Art. 769
(Ord. n° 58-1307 of 23 Dec.
1958)
The administration of Domains which
claims a right to a succession is bound to have seals affixed and
to cause an inventory to be made in the forms prescribed for
the acceptance of successions under benefit of inventory
.
Art. 770
(Ord. n° 58-1307 of 23 Dec.
1958)
It must petition to obtain from the
tribunal de grande instance in whose territorial
jurisdiction the succession was opened, a court order to take
possession.
It is dispensed from using the services of a counsel; the court
shall rule on the petition three months and forty days after a
notice and bill in the usual forms, and after having heard the
Government procurator.
Where, the vacancy having been duly declared, the administration
of Domains has been appointed curator, it may, before filing its
petition, proceed by itself to the formalities of notice provided
for in the preceding paragraph.
In all cases, bill-sticking shall be proved by a copy of the bill
signed by the director of Domains and bearing a certificate of the
mayor of the place of opening of the succession.
Art. 771 [repealed]
Art. 772
(Ord. n° 58-1307 of 23 Dec.
1958)
The administration of Domains which
does not fulfil the formalities prescribed for it may be ordered
to pay damages to the heirs, if any should
appear.
Art. 773 [repealed]
CHAPTER V - OF
THE ACCEPTANCE AND REPUDIATION OF
SUCCESSIONS
Section I - Of Acceptance
Art. 774
A succession may be accepted outright
or subject to benefit of inventory.
Art. 775
No one is obliged to accept a
succession which devolves upon him .
Art. 776
(Act of 18 Feb. 1938)
Successions devolving on minors and on
adults in guardianship may be lawfully accepted only in accordance
with the provisions of the Title Of Minority, of Guardianship
and of Emancipation.
Art. 777
The effects of acceptance go back to
the day of the opening of the succession .
Art. 778
Acceptance may be express or by
conduct: it is express where one assumes the title or capacity of
heir in an authentic or private instrument; it is by conduct where
the heir does an act which necessarily implies his intention of
accepting and which he would be entitled to do only in his
capacity as heir.
Art. 779
Acts of mere preservation, supervision
and interim administration are not acts of acceptance of a
succession, unless the title or capacity of heir has been assumed
therein.
Art. 780
A gift, sale or assignment of his
rights of inheritance made by one of the co-heirs, either to a
stranger, or to all his co-heirs, or to some of them, involves on
his part acceptance of the succession.
It shall be the same :
1° as to the renunciation, even gratuitous, which one of the
heirs makes in favour of one or several of his
co-heirs;
2° as to the renunciation which he makes in favour of all his
co-heirs without distinction, where he receives the price of his
renunciation.
Art. 781
Where a person to whom a succession
has devolved dies without having repudiated it or without having
accepted it expressly or by conduct, his heirs may accept or
repudiate it on his behalf.
Art. 782
Where those heirs do not agree as to
accepting or repudiating the succession, it must be accepted under
benefit of inventory.
Art. 783
An adult may attack an acceptance,
express or by conduct, which he made of a succession, only in the
case where that acceptance was the result of a deception committed
upon him: he may never claim on the ground that he suffered loss,
except only in the case where the succession is absorbed or
reduced more than one-half through the discovery of a will unknown
at the time of the acceptance.
Section II -
Of the Renunciation of Successions
Art. 784
Renunciation of a succession may not
be presumed; it may only be made at the court office of the
tribunal de grande instance in the arrondissement of
which the succession was opened, on a special register kept for
that purpose.
Art. 785
An heir who renounces shall be deemed
to have never been an heir.
Art. 786
The share of a renouncing heir accrues
to his co-heirs; where he is alone, it devolves upon the next
degree.
Art. 787
One may never take by representation
of an heir who renounced: where the person renouncing is the only
heir in his degree, or where all the co-heirs renounce, children
come in their own right and inherit by heads.
Art. 788
Creditors of one who renounces to the
detriment of their rights may be authorized by the court to accept
the succession on behalf of their debtor, in his place and
stead.
In that case, the renunciation is avoided only in favour of the
creditors and to the extent only of their claims: it is not so in
favour of the heir who renounced .
Art. 789
The power to accept or repudiate a
succession is extinguished by the length of time required for the
longest prescription of immovable rights .
Art. 790
So long as prescription of the right
to accept is not effective against the heirs who renounced, they
have the power to still accept the succession, where it has not
already been accepted by other heirs; without prejudice, however,
to the rights which third parties may have acquired to property of
the succession, either by prescription, or by transactions
lawfully entered into with the curator of the vacant
succession.
Art. 791
One may not, even by an ante-nuptial
agreement, renounce the succession of a living person or transfer
contingent rights which one may have to that
succession.
Art. 792
Heirs who have misappropriated or
concealed items of property of a succession, are deprived of the
power to renounce it: they remain outright heirs, notwithstanding
their renunciation, without being allowed to claim any share in
the things misappropriated or concealed.
Section III - Of
the Benefit of Inventory, of its Effects and of the
Obligations of a Beneficiary Heir
Art. 793
The declaration of an heir, that he
intends to assume that capacity only under benefit of inventory,
must be made at the court office of the tribunal de grande
instance in the arrondissement of which the succession
was opened: it must be entered on the register designed for
receiving acts of renunciation .
Art. 794
That declaration is effective only
where it is preceded or followed by a true and exact inventory of
the property of the succession, in the manner prescribed by the
legislation on procedure, and within the periods which shall be
hereafter specified.
Art. 795
An heir has three months for making
the inventory, from the day of the opening of the
succession.
He has in addition, for deliberating on his acceptance or
renunciation, a period of forty days, which shall commence to run
from the day of expiry of the three months given for the
inventory, or from the day of the closing of the inventory if it
was finished before the three months.
Art. 796
Where, however, there exist in the
succession articles liable to waste away or costly to keep, an
heir may, in his capacity of being entitled to inherit, and
without there being an acceptance on his part thereby presumed,
have himself authorized by the court to proceed to a sale of those
articles.
That sale must be done by a public officer, after the bills and
notice regulated by legislation on procedure.
Art. 797
While the periods for making an
inventory and deliberating are elapsing, an heir may not be
compelled to assume a capacity and no judgment may be obtained
against him: where he renounces when the periods have elapsed or
before, the expenses which he has lawfully incurred up to that
time are the responsibility of the succession.
Art. 798
After the expiry of the
above-mentioned periods, an heir, in case of proceedings brought
against him, may require a new period which the court to which the
matter was referred may grant or refuse according to the
circumstances.
Art. 799
The costs of the proceedings, in the
case of the preceding Article, are the responsibility of the
succession, where the heir proves either that he had no knowledge
of the death, or that the periods were insufficient, either
because of the location of the property, or because of the
controversies which have arisen : where he does not make that
proof, the costs are his personal
responsibility.
Art. 800
Nevertheless, after the expiry of the
periods granted by Article 795, and even of those given by the
judge under Article 798, an heir keeps the power to still make an
inventory and to stand as heir beneficiary, where he has not acted
as heir or where there does not exist against him a judgment
having become res judicata which condemns him in the capacity of
outright heir.
Art. 801
An heir who has been guilty of
concealment or who has omitted, knowingly and in bad faith, to
include articles of the succession in the inventory, is deprived
of the benefit of inventory.
Art. 802
The effect of the benefit of inventory
is to give an heir the advantage:
1° To be obliged to pay the debts of the succession only to the
extent of the value of the property which he receives, and even to
be allowed to discharge himself from paying the debts by
abandoning all the property of the succession to the creditors and
legatees;
2° Not to mingle his personal property with that of the
succession, and to keep against it the right to ask for payment of
his claims.
Art. 803
A beneficiary heir is responsible for
administering the property of the succession, and must account for
his administration to creditors and legatees.
He may be constrained as to his personal property only after
having been given notice to present his account, and having failed
to comply with that obligation.
After an auditing of the account, he may be constrained as to his
personal property only to the extent of the balance of which he is
debtor.
Art. 804
He is liable only for gross faults in
the administration for which he has charge.
Art. 805
He may sell movables of the succession
only through a public officer, by auction and after the usual
bills and notices.
Where he produces them in kind, he is liable only for depreciation
or deterioration caused by his negligent
conduct.
Art. 806
He may sell immovables only in the
forms prescribed by the rules of procedure; he is obliged to
transfer the proceeds thereof to mortgage creditors who made
themselves known.
Art. 807
Where creditors or other persons
concerned so require, he is obliged to give good and solvent
security for the value of the movables contained in the inventory
and for the portion of the proceeds of the immovables not
transferred to mortgage creditors.
Where he fails to give that security, the movables shall be sold
and the proceeds thereof deposited, as well as the proceeds not
transferred of the immovables, for the purpose of discharging the
liabilities of the succession.
Art. 808
Where there are attaching creditors, a
beneficiary heir may pay only in the order and manner fixed by the
judge.
Where there are no attaching creditors he shall pay creditors and
legatees as they present themselves.
Art. 809
Creditors who did not attach, who
present themselves after the auditing of the account and the
payment of the balance , may only exercise their remedies against
the legatees.
In either case, the remedy is time-barred after the lapse of three
years, after the day of the auditing of the account and the
payment of the balance.
Art. 810
Costs of seals, if any have been
affixed, of inventory and of account, are charged against the
succession .
Section
IV - Of Vacant Successions
Art. 811
Where, after expiry of the periods for
making the inventory and deliberating, no one presents himself to
claim a succession, and there are no known heirs or the known
heirs have renounced, the succession is deemed
vacant.
Art. 812
The tribunal de grande instance
in whose arrondissement it is opened, shall appoint a
curator on request of the persons concerned, or on demand of the
Government procurator.
Art. 813
A curator of a vacant succession is
obliged first of all to have its state of being established by an
inventory: he shall exercise and enforce its rights; he shall
answer claims brought against it; he shall administer, with the
responsibility of having the funds forming part of the succession,
as well as the proceeds from the sale of movables or immovables,
deposited into the funds of the receiver of the national office
for the preservation of rights and with the responsibility of
accounting to whomever it may belong.
Art. 814
The provisions of Section III of this
Chapter, on the forms of an inventory, the method of
administration, and the accounts to be rendered by a beneficiary
heir, shall apply moreover to curators of vacant successions,
"insofar as they are not contrary to the provisions of Articles
1000 and 1001 of the Code of Civil Procedure" (Ord. n° 58-1007
of 24 Oct. 1958) .
CHAPTER VI - OF PARTITION AND OF
COLLATIONS
Section I - Of
Undivided Ownership and of the Action for
Partition
Art. 815
(Act n° 76-1286 of 31 Dec.
1976)
No one may be compelled to remain in
undivided ownership and a partition may always be induced, unless
it was delayed by judgment or agreement .
"On request of an undivided co-owner, a court may delay partition"
(Act n° 78-627 of 10 June 1978) for two years at the most
where its immediate carrying out could affect the value of the
undivided property "or where one of the undivided co-owners can
settle in an agricultural holding depending on the succession
only at the end of that period" (Act n° 80-502 of 4 July
1980). That delay may be applied to the whole of the undivided
property or only to part of it .
Furthermore, where undivided co-owners wish to remain in undivided
ownership, the court may, on request of one or several of them, on
the basis of the interests as they stand, and without prejudice to
the application of Articles 832 to 832-3, allot his share, after
appraisal, to the one who sought partition, either in kind, if it
can easily be disjoined from the remainder of the undivided
property, or in money, if the allotment in kind cannot be
conveniently made, or if the applicant expresses his preference
for it; where there is not a sufficient sum in the undivided
property, the complement shall be remitted by those of the
undivided co-owners who concurred in the request, without
prejudice to the possibility for the other undivided co-owners to
participate in it if they express the wish of doing so. The share
of each of them in the undivided property shall be increased in
proportion to his remittance.
Art. 815-1
(Act n° 76-1286 of 31 Dec.
1976)
Failing an amicable agreement,
undivided ownership of an agricultural holding forming an economic
unit and whose development was secured by the deceased or by his
or her spouse may be maintained, under the terms fixed by the
court, on request of the persons referred to in paragraphs 3 and 4
below . The court shall rule on the basis of the interests as they
stand and of the possibilities of existence which the family can
derive from the undivided property. The maintenance of undivided
ownership remains possible where the holding includes elements of
which the heir or the spouse was already owner or co-owner before
the opening of the succession.
Undivided ownership may also be maintained on request of the same
persons and under the terms fixed by the court, as regards
ownership of premises used for habitation or for professional
purposes which, at the time of the death, were actually used
for that habitation or for those purposes by the deceased or his
or her spouse. It shall be the same for movable articles which are
useful for the exercise of the profession.
Where the deceased leaves one or several minor descendants, the
maintenance of undivided ownership may be requested either by the
surviving spouse, or by any heir, or by the statutory
representative of the minors.
In the absence of minor descendants, the maintenance of undivided
ownership may be requested only by the surviving spouse and
provided that he was before the death, or has become by reason of
the death, co-owner of the agricultural holding or of the premises
used for habitation or for professional purposes. If it is a case
of premises used for habitation, the spouse must have resided on
the spot at the time of the death.
Maintenance of undivided ownership may not be prescribed for a
duration longer than five years. In may be renewed, in the case
provided for in paragraph 3, until the coming of age of the
youngest of the descendants, and, in the case provided for in
paragraph 4, until the death of the surviving
spouse.
Art. 815-2
(Act n° 76-1286 of 31 Dec.
1976)
Any undivided owner may take the
necessary steps for the preservation of the undivided
property.
He may use for that purpose funds of the undivided property which
he holds, and he is deemed to have the free disposal of them with
regards to third parties.
Failing funds of the undivided property, he may compel his
undivided co-owners to make with him the necessary
expenditures.
Where undivided property is encumbered with an usufruct, those
powers are effective against the usufructuary to the extent that
the latter is responsible for repairs.
Art. 815-3
(Act n° 76-1286 of 31 Dec.
1976)
Acts of administration and disposition
relating to undivided property require the consent of all the
undivided co-owners . They may give to one or several of them
general authority for administration. A special authority is
required for any act which does not belong to a normal management
of the undivided property, as well as for the conclusion and
renewal of leases.
Where one undivided owner takes up the management of the undivided
property, with the knowledge of the others and nevertheless
without opposition on their part, he is deemed to have received an
implied authority, covering acts of administration, but not acts
of disposition or conclusion or renewal of
contracts.
Art. 815-4
(Act n° 76-1286 of 31 Dec.
1976)
Where one of the undivided owners is
unable to express his intention, another may be judicially
entitled to represent him, in a general manner or for some
particular transactions, the terms and extent of that
representation being fixed by the judge.
Failing statutory power, contractual authority or judicial
entitlement, the acts done by a undivided owner on behalf of
another are effective with regard to the latter under the rules of
management of another’s business.
Art. 815-5
(Act n° 76-1286 of 31 Dec.
1976)
An undivided owner may be
judicially authorized to do alone an act for which the consent of
an undivided co-owner would be required, where the refusal of the
latter imperils the common interest.
"The judge may not, on request of a bare-owner, order the sale of
the full ownership of a property encumbered with an usufruct,
against the wish of the usufructuary" (Act n° 87-498 of 6 July
1987).
An act made within the terms fixed by the judicial authorization
is effective against the undivided owner whose consent was wanting
.
Art. 815-6
(Act n° 76-1286 of 31 Dec.
1976)
The president of the tribunal de
grande instance may prescribe or authorize all urgent measures
which the common interest requires .
He may in particular authorize an undivided owner to collect from
debtors of the undivided property or from depositaries of
undivided money funds designed to meet urgent needs, while
prescribing, where required, the terms of their use. That
authorization does not involve qualifying as regards a surviving
spouse or a heir.
He may also, either designate an undivided owner as administrator
with obligation if there is occasion of giving security, or
appoint a sequestrer. Articles 1873-5 to 1873-9 of this Code shall
apply as may be thought proper to the powers and obligations of
the administrator, unless they are otherwise regulated by the
judge.
Art. 815-7
(Act n° 76-1286 of 31 Dec.
1976)
The president of the court may also
prohibit the shifting of tangible movables reserving the right to
specifying those of which he grants the personal usage to one or
another of the persons entitled, under the responsibility on the
latter to give security, if he deems it
necessary.
Art. 815-8
(Act n° 76-1286 of 31 Dec.
1976)
Whoever collects revenues or incurs
expenses for the account of the undivided ownership must keep a
statement of them which is at the disposal of the undivided
owners.
Art. 815-9
(Act n° 76-1286 of 31 Dec.
1976)
Each undivided owner may use and enjoy
undivided property in accordance with its destination, to the
extent compatible with the rights of the other undivided owners
and with the effect of the acts lawfully made in the course of the
undivided ownership. Failing an agreement between the persons
concerned, the exercise of that right shall be regulated,
provisionally, by the president of the court .
An undivided owner who uses or enjoys privately an undivided thing
is liable to an indemnity, unless otherwise agreed
.
Art. 815-10
(Act n° 76-1286 of 31 Dec.
1976)
Fruits and revenues of undivided
property accrue to the undivided ownership, in default of interim
partition or of any other agreement establishing divided
enjoyment.
No inquiry relating to fruits and revenues may, however, be
admissible more than five years after the date on which they were
or could have been collected.
Each undivided owner is entitled to
benefits coming from undivided property and bears the loss in
proportion to his rights in the undivided
property.
Art. 815-11
(Act n° 76-1286 of 31 Dec.
1976)
Any undivided owner may claim his
annual share in the benefits, less the expenses involved by acts
to which he consented or which are effective against
him.
Failing another title, the extent of the rights of each in the
undivided ownership results from the affidavit or from the
abstract of inventory drawn up by the notaire
.
In case of controversy, the president of the tribunal de
grande instance may order an interim distribution of the
benefits, subject to an account to be made before the final
liquidation.
Up to the amount of available money, he may likewise order an
advance in capital on the rights of an undivided owner in the
partition to come.
Art. 815-12
(Act n° 76-1286 of 31 Dec.
1976)
An undivided owner who manages one or
several undivided items of property is accountable for the
products of his management. He is entitled to compensation for his
activity on terms fixed amicably or, failing which, by judicial
decision.
Art. 815-13
(Act n° 76-1286 of 31 Dec.
1976)
Where an undivided owner has improved
at his expenses the condition of undivided property, account of it
must be taken for him according to equity, with regard to the
increase in value of the property at the time of partition or of
transfer. Account shall be taken likewise for him of the necessary
outlays he made out of his own money for the preservation of said
property, even though they did not improve it.
Reciprocally, an undivided owner is responsible for degradations
and deteriorations which have diminished the value of the
undivided property through his act or fault.
Art. 815-14
(Act n° 76-1286 of 31 Dec.
1976)
An undivided owner who intends to
transfer, for value, to a person outside the undivided ownership,
all or part of his rights in the undivided property or in one or
several articles of that property shall give notice by
extra-judicial act to the other undivided owners of the price and
terms of the planned transfer as well as of the name, domicile and
occupation of the person who intends to acquire
it.
Any undivided owner may, within the period of one month following
that notice, make known to the transferor, by extra-judicial act,
that he exercises a right of pre-emption at the price and terms of
which he was notified.
In case of pre-emption, the person who is exercising it shall have
an instrument of sale drafted within a period of two months,
counting from the date of sending his reply to the seller. After
that period, his declaration of pre-emption is void by operation
of law, fifteen days after a notice of default remained
ineffective, and without prejudice to damages which may be claimed
of him by the seller .
Where several undivided owners exercise their rights of
pre-emption, unless otherwise agreed, they are deemed to acquire
together the portion put up for sale in proportion to their
respective shares in the undivided ownership.
Where terms of payment have been granted by the transferor,
Article 833-1 shall apply.
Art. 815-15
(Act n° 76-1286 of 31 Dec.
1976)
Where there is occasion for an auction
of all or part of the rights of an undivided owner in undivided
property or in one or more articles of that property, the counsel
or notaire must inform the undivided owners of it by notice
one month before the date planned for the sale. "Each undivided
owner may take the place of the purchaser within a period of one
month after the auction, by declaration at the court office or
with the notaire" (Act n° 78-627 of 10 June
1978).
The particulars established for the purpose of the sale must
mention the rights of substitution.
Art. 815-16
(Act n° 76-1286 of 31 Dec.
1976)
Every transfer or auction made in
defiance of Articles 815-14 and 815-15 is void. An action for
annulment is time-barred after five years. It may be brought only
by those on whom notices were to be served or by their
heirs.
Art. 815-17
(Act n° 76-1286 of 31 Dec.
1976)
Creditors who might have levied
execution on the undivided property before there was undivided
ownership, and those whose claims result from the preservation or
management of the undivided property, shall be paid by deduction
from the assets before partition. They may, in addition, conduct
attachment or seizure and sale of the undivided
property.
Personal creditors of an undivided owner may not attach or seize
the latter's share in undivided property, whether movable or
immovable.
They have, however, the power to instigate partition in the name
of their debtor or to intervene in a partition instigated by him.
The undivided co-owners may stop the course of the action for
partition by discharging the obligation in the name and on behalf
of the debtor. Those who exercise that power shall be reimbursed
by deduction from the undivided property.
Art. 815-18
(Act n° 76-1286 of 31 Dec.
1976)
The provisions of Articles 815 to
815-17 shall apply to undivided property in usufruct to the extent
that they are consistent with the rules on
usufruct.
The notices provided for in Articles 815-14, 815-15 and 815-16
must be served on any bare owner and on any usufructuary. But a
usufructuary may acquire a share in bare ownership only where no
bare owner offers to acquire it; a bare owner may acquire a share
in usufruct only where no usufructuary offers to acquire
it.
Art. 816
A partition may be applied for even
where one of the heirs has enjoyed separately a part of the
property of the succession, if there was no instrument of
partition nor possession adequate to acquire prescription .
Art. 817
(Act of 19 June 1939)
As regards minors or adults in
guardianship, an action for partition may be brought by their
guardians specially authorized by a family
council.
As regards absent coheirs, the action belongs to the relatives
vested with possession.
Art. 818 [repealed]
Art. 819
(Act n° 85-1372 of 23 Dec.
1985)
Where all the heirs are present and
fully capable, a partition may be made in such manner and through
such act as the parties deem proper .
Art. 820
(Act n° 85-1372 of 23 Dec.
1985)
Property of a succession may, in whole
or in part, be subject to measures of preservation, such as the
affixing of seals, on request of a party concerned or of the
Government procurator's office, under the conditions and following
the forms determined by the Code of Civil
Procedure.
Art. 821 [repealed]
Art. 822
(D.-Law of 17 June 1938)
An action for partition and the
controversies arising either on the occasion of maintaining
undivided ownership or during the proceedings of partition, shall
be, on pain of annulment, submitted only to the court of the place
of opening of the succession; it is before that court that
auctions shall be made and that claims relating to the warranty of
shares between coparceners and those for rescission of a partition
shall be brought. In the case where an attempt to conciliation as
provided for in Article 48 [repealed] of the Code of Civil
Procedure takes place, the judge of the tribunal
d'instance of the place of opening of the succession shall
alone be competent, on pain of annulment.
(Act of 15 Dec. 1921) Where all the parties agree, the
court may be seized of an application for partition through a
collective request signed by their counsels. If there is occasion
for an auction, the request shall contain an upset price which
will serve as an appraisal. In that case, the judgment shall be
handed down in chambers and is not appealable where the
submissions of the request are accepted by the court without
modification.
(Act of 19 June 1939) The provisions of the preceding
paragraphs shall apply without need of a previous authorization,
whatever the capacity of the party concerned may be and even where
he is represented by a judicial agent.
Art. 823
Where one of the coheirs refuses to
consent to a partition, or where controversies arise, either as to
the way of proceeding, or as to the manner of settling it, the
court shall decide as in summary matters, or shall appoint, if
necessary, for the proceedings of partition, one of the judges, on
whose report it shall decide the controversies.
Art. 824
Appraisal of the immovables shall be
made by experts chosen by the parties concerned, or, upon their
refusal, appointed by the court of its own
motion.
The memorandum of the experts shall state the basis of the
appraisal; it shall indicate whether the article appraised can be
conveniently partitioned; in what manner; finally, in case of
partition, it shall fix each one of the shares that can be formed
therefrom, and their value.
Art. 825
Appraisal of the movables, where there
was no valuation in a regular inventory, must be made by
knowledgeable persons, at a fair price and without
increase.
Art. 826
Each one of the coheirs may claim his
share of the movables and immovables of the succession in kind:
nevertheless, where there are attaching or seizing creditors, or
where the majority of the coheirs deem a sale necessary for the
discharge of the debts and liabilities of the succession, movables
shall be sold publicly in the ordinary manner.
Art. 827
(D.-Law of 17 June 1938)
Where the immovables cannot be
conveniently partitioned or allocated in the conditions provided
for by this Code, a sale by auction must take place before the
court.
The parties, however, where they are all of full age, may consent
that the auction be held before a notaire, on the choice of
whom they agree.
Art. 828
After the immovables and movables have
been appraised and sold, if there is occasion, the supervising
judge shall send the parties before a notaire upon whom
they agree, or whom he appoints of his own motion, if the parties
do not agree upon a choice.
Before that officer shall be determined the accounts of what the
parties may owe each other, the formation of the general mass, the
composition of the shares and the allotments to be made to each of
the coparceners.
Art. 829
Each coheir shall return to the mass,
according to the rules hereafter laid down, the gifts which have
been made to him and the sums of which he is
debtor.
Art. 830
Where collation is not made in kind,
the coheirs to whom it is owed, shall appropriate an equivalent
portion from the mass of the succession.
Appropriations shall be made, as far as possible, on things of the
same kind, character and good quality as those not returned in
kind.
Art. 831
After those appropriations, out of
what remains of the mass, the composition is made of as many equal
shares as there are coparcener heirs or coparcener
stocks.
Art. 832
(D.-Law of 17 June 1938)
In forming and composing shares,
the parcelling out of lands and the splitting up of holdings must
be avoided.
In so far as parcelling out of lands and splitting up of holdings
can be avoided, each share must, as far as possible, be composed,
in whole or in part, of movables or immovables, of rights or of
claims of equivalent value.
"A surviving spouse or any co-owner heir may request a
preferential allotment by way of partition, under the
responsibility of a compensation, if any, of any agricultural
holding, or part of agricultural holding, constituting an economic
unit, or undivided portion of an agricultural unit, even formed in
part from a property of which he was already owner or co-owner
before the death, in whose development he actually participates or
participated; in the case of an heir, the requirement as to
participation may have been fulfilled by his or her spouse. If
there is occasion, the request for preferential allotment may bear
on shares of the capital, without prejudice to the application of
the statutory provisions or of articles of association on the
continuation of a partnership with the surviving spouse or one or
several heirs.
"The same rules shall apply to any commercial, industrial or craft
concern, whose importance does not exclude a family nature "
(Act n° 82-596 of 10 July 1982).
(Act n° 80-502 of 4 July 1980) In the case where neither
the surviving spouse, nor any co-owner heir requests the
application of the provisions provided for in paragraph 3 above or
those of Articles 832-1 or 832-2, preferential allotment may be
granted to any coparcener provided he obliges himself to give on
lease, within a period of six months, the property under
consideration under the terms fixed in Chapter VII of Title I of
Book VI [Chapter VI of Title I of Book IV] of the Rural Code to
one or several of the coheirs fulfilling the personal requirements
provided for in paragraph 3 above or to one or several descendants
of those coheirs fulfilling the same conditions
.
A surviving spouse or any co-owner heir may also request
preferential allotment :
Of the ownership or right to lease of the premises which actually
serve him or her as habitation, where he or she had residence here
at the time of the death ", with the furniture which garnishes
them" (Act n° 2001-1135 of 3 Dec. 2001);
Of the ownership or right to lease of the premises used for
professional purposes which serve actually for the exercise of his
or her occupation and of the furniture for professional purposes
which garnishes the premises;
Of the whole of movable articles necessary for the holding of a
rural property farmed by the deceased as tenant farmer or
sharecropper where the lease continues for the profit of the
applicant or where a new lease is granted to the
latter.
Preferential allotment may be sought jointly by several persons
entitled to inherit. "Preferential allotment of the ownership of
the premises and of the furniture which gaenishes it, referred to
in paragraph 7, is as of right for a surviving spouse" (Act n°
2001-1135 of 3 Dec. 2001).
"In the circumstances referred to in the preceding paragraph, an
allottee surviving spouse may require from his coparceners
periods, which may not exceed ten years, for payment of a fraction
of the balance, equal to a half at the most. Unless otherwise
agreed, the sums remaining due bear an interest at the statutory
rate.
"In case of sale of the premises or of the furniture which
garnishes them, the fraction of the balance which relates to it
becomes immediately due; in case of partial sales, the proceeds of
those sales shall be paid to the coparceners and appropriated to
the fraction of the balance still due.
"Rights resulting from a preferential allotment may not prejudice
rights for life of use and habitation which a spouse may exercise
under Article 764" (Act n° 2001-1135 of 3 Dec.
2001).
"Failing an amicable agreement, a request for preferential
allotment shall be brought before the court, which shall decide on
the basis of the interest as they stand; in case of several
requests relating to a holding or a concern, the court shall take
into account the fitness of the various applicants to manage that
holding or concern and to remain therein, and in particular the
duration of their personal taking part in the operation of the
holding or of the concern" (Act n° 82-596 of 10 July 1982)
.
Property which forms the subject of the allotment shall be
appraised at its value on the day of partition .
Unless otherwise amicably agreed between the coparceners, a
balance which may be oxed shall be paid cash .
Art. 832-1
(Act n° 80-502 of 4 July 1980)
Notwithstanding the provisions of
Article 832, paragraphs "14 and 16 " (Act n° 2001-1135 of 3
Dec. 2001) and unless maintenance in undivided ownership is
requested under Articles 815, paragraph 2, and 815-1, preferential
allotment referred to in Article 832, paragraph 3, is as of right
as regards any agricultural holding which does not exceed the
limits of surface fixed by decree in Conseil d'État.
In case of several requests, the court shall designate the
allottee or joint allottees on the basis of the interests as they
stand and of the fitness of the various applicants to manage the
holding and to remain therein .
In the circumstances referred to in the preceding paragraph, even
where a preferential allotment was judicially granted, the
allottee may require from his coparceners periods which may not
exceed ten years for payment of a fraction of the balance, equal
to a half at most. Except otherwise agreed, sums remaining due
bear interest at the statutory rate.
(Act n° 61-1378 of 19 Dec. 1961) In case of sale of the
whole of an allotted property the fraction of the balance
remaining owed becomes immediately due; in case of partial sales,
the proceeds of those sales shall be paid to the coparceners and
appropriated to the fraction of the balance still
due.
[repealed]
Art. 832-2
(Act n° 80-502 of 4 July 1980)
Where maintenance in undivided
ownership was not ordered under Articles 815, paragraph 2, and
815-1, and failing a preferential allotment in ownership
provided for in Articles 832, paragraph 3, or 832-1, a surviving
spouse or any co-owner heir may request preferential allotment of
all or part of immovable property or rights for agricultural
purposes depending on the succession, with a view to establishing
an agricultural land grouping with one or several coheirs and, as
the case may be, one or several third persons.
That allotment is of right where the surviving spouse or one or
several of the coheirs fulfilling the personal qualifications
provided for in Article 832, paragraph 3, require that there be
given them on lease all or part of the property of the grouping,
subject to the conditions laid down in Chapter VII of Title I of
Book VI [Chapter VI of Title I of Book IV] of the Rural
Code.
In case of several requests, the property of the grouping may,
where its composition so permits, be the subject of several leases
benefiting different coheirs; otherwise, and failing an amicable
agreement the court shall designate the lessee taking into account
the fitness of the various applicants to manage the property
concerned and to remain therein. Where the terms and conditions of
that lease or of those leases were not the subject of an
agreement, they shall be fixed by the court.
The immovable property and rights which the applicants do not
intend to contribute to the agricultural land grouping, together
with the other property of the succession, shall be allotted by
priority, within the limits of their respective rights of
succession, to the undivided owners who did not agree to the
formation of the grouping. Where those undivided owners do not
obtain the whole of their rights through the allotment thus made,
a balance must be paid to them. Unless otherwise amicably agreed
between the coparceners, a balance which may be owed shall be paid
within the year following the partition. It may be effected
through a giving in payment under the form of shares in the
agricultural land grouping, unless the parties concerned, within
the month following the proposal made to them, make known their
opposition to that mode of payment.
Partition is complete only after the signature of the instrument
of constitution of the agricultural land grouping and, if there is
occasion, of the long-term lease or leases.
Art. 832-3
(Act n° 80-502 of 4 July 1980)
Where an agricultural holding
constituting an economic unit and not operated under the form of a
partnership is not maintained in undivided ownership under
Articles 815, paragraph 2, and 815-1, and was not the subject of a
preferential allotment within the terms provided for in Articles
832, 832-1 or 832-2, a surviving spouse or any co-owner heir who
wishes to continue the exploiting in which he or she actually
participates or participated may require, notwithstanding any
request for auction, that the partition be concluded subject to
the condition that his or her coparceners grant to him or her a
long-term lease under the terms fixed in Chapter VII of Title I of
Book VI [Chapter VI of Title I of Book IV] of the Rural Code, on
the lands of the holding which fall to them. Unless otherwise
amicably agreed between the parties, the one who requests to
benefit by those provisions shall receive by priority in his or
her share the buildings for exploitation and habitation.
The preceding provisions shall apply to a part of an agricultural
holding which can constitute an economic unit.
Account shall be taken, if there is occasion, of depreciation due
to the existence of a lease in the appraisal of the lands included
in the various shares.
Articles 807 and 808 [L. 412-14 and L. 412-15] of the Rural Code
shall determine the specific rules for the lease referred to in
the first paragraph of this Article.
Where there are several requests, the tribunal de grande
instance shall designate the beneficiary or beneficiaries on
the basis of the interests as they stand and of the fitness of the
various applicants to manage all or part of the holding or to
remain therein.
Where, due to the obvious unfitness of the applicant or applicants
to manage all or part of the holding, the interests of the coheirs
risk being imperilled, the court may decide that there is no
occasion to apply the first three paragraphs of this
Article.
An economic unit referred to in paragraph 1 can be formed in part
of property of which a surviving spouse or a heir was already
owner or co-owner before the death. As regards a heir, the
requisite of participation may have been fulfilled by his or her
spouse.
Art. 832-4
(Act n° 80-502 of 4 July 1980)
The provisions of Articles 832, 832-1,
832-2 and 832-3 shall benefit a spouse or any heir, whether
co-owner in full or bare ownership .
The provisions of Articles 832, 832-2 and 832-3 shall benefit also
a beneficiary, universal or by universal title, of the succession
by virtue of a will or of a contractual
institution.
Art. 833
Inequality of shares in kind shall be
compensated by a reversion, either in the form of an annuity, or
in money.
Art. 833-1
(Act n° 71-523 of 3 July 1971)
Where the debtor of a balance has
obtained time for payment and, as a result of economic
circumstances, the value of the property put in his share has
increased or lessened by more than one-fourth since the partition,
the sums remaining due shall increase or lessen in the same
proportion.
The parties may, however, agree that the amount of the balance
will not vary.
Art. 834
Shares are made by one of the coheirs
where they can agree between themselves on the choice and where
the one chosen accepts the charge: otherwise the shares shall be
made by an expert appointed by the supervising
judge.
They shall then be drawn by lots.
Art. 835
Before drawing the lots, each
coparcener is allowed to present objections as to their formation.
Art. 836
The rules established for the division
of the masses to be partitioned shall also be followed in the
subdivision to be made between the coparcener
stocks.
Art. 837
Where, in operations referred to a
notaire, controversies arise, the notaire shall draw
up a memorandum of the difficulties and respective statements of
the parties, and shall refer them to the supervisor appointed for
the partition; and as to other issues, proceedings shall be
conducted as prescribed by legislation relating to
procedure.
Art. 838
(Act n° 64-1230 of 14 Dec.
1964)
Where all coheirs are not present, a
partition must be made in court, under the rules of Articles 819
to 837.
It shall be the same where there are among them non-emancipated
minors or adults in guardianship, subject to Article
466.
Where there are several minors, a special and distinct guardian
may be given to each of them.
Art. 839
(Act n° 64-1230 of 14 Dec.
1964)
Where there is occasion for an
auction, in the case provided for in paragraph 1 of the preceding
Article, it may be made only in court with the formalities
prescribed for the transfer of the property of minors. Outsiders
shall always be admitted.
Art. 840
(Act n° 64-1230 of 14 Dec.
1964)
Partitions made in accordance with the
rules above prescribed in the name of "presumed absentees" (Act
n° 77-1447 of 28 Dec. 1977) and persons not present are final;
they are temporary only where the prescribed rules were not
complied with.
Art. 841 [repealed]
Art. 842
After partition, each coparcener shall
receive the instruments of title pertaining to the property which
falls on him.
Instruments of title of a divided property shall remain to the one
who has the largest part, with the responsibility to assist with
them those of his coparceners who have an interest therein, where
he is required to do so.
Instruments of title common to a whole inheritance shall be
delivered to the one whom all the heirs have chosen to be the
depositary of them, with the responsibility to assist the
coparceners with them, whenever required. Where there is a
difficulty about that choice, it shall be regulated by the judge .
Section II -
Of the Collations, Appropriation and Abatement of
Gratuitous Transfers Made to Persons Entitled to
Inherit
Art. 843
(Act of 24 March 1898)
Every heir, even beneficiary, coming
into a succession, shall return to his coheirs everything he has
received from the deceased, by gift inter vivos, directly or
indirectly; he may not keep the gifts made to him by the deceased
unless they were made expressly over and above his share, or with
exemption from collation.
Legacies made to a heir are deemed to be made over and above his
part, unless the testator has expressed his wish to the contrary,
in which case the legatee may only claim his legacy by taking
less.
Art. 844
(Act n° 71-523 of 3 July 1971)
Gifts made over and above the share or
with exemption from collation may be retained, and legacies may be
claimed by an heir coming into a partition, only up to the amount
of the disposable portion: the excess is subject to reduction .
Art. 845
An heir who renounces a succession may
nevertheless retain the gift inter vivos or claim the legacy made
to him up to the amount of the disposable portion.
Art. 846
A donee who was not a presumptive heir
at the time of the gift, but who is entitled to inherit on the day
of the opening of the succession, is also bound to collation,
unless the donor has exempted him from it.
Art. 847
Gifts and legacies made to the son of
a person who is entitled to inherit at the time of the opening of
the succession, are always deemed to have been made with exemption
from collation.
The father coming to the succession of the donor is not
bound to collate them.
Art. 848
Likewise, a son coming in his own
right to the succession of the donor is not bound to collate a
gift made to his father, even if he has accepted the latter's
succession; but where the son comes only by representation, he
shall collate what was given to his father, even in the case where
he has repudiated his succession.
Art. 849
Gifts and legacies made to the spouse
of a spouse entitled to inherit are deemed to be made with
exemption from collation.
Where gifts and legacies are made jointly to two spouses, one of
whom only inherits, the latter collates the half; where the gifts
are made to the spouse entitled to inherit, he or she shall
collate the whole.
Art. 850
Collation is made only to the
succession of the donor.
Art. 851
Collation is due for what has been
devoted to the settling of one of the coheirs, or for the payment
of his debts.
Art. 852
The expenses of food, support,
education, apprenticeship, the ordinary costs of outfitting, those
of weddings and usual presents, shall not be
collated.
Art. 853
It shall be the same with profits
which a heir may have made out of agreements entered into with the
deceased, where those agreements did not offer any indirect
advantage when they were made.
Art. 854
Likewise, no collation is due for
partnerships concluded without fraud between the deceased and one
of his heirs, where the articles thereof were regulated by an
authentic instrument.
Art. 855
(Act n° 71-523 of 3 July 1971)
A property which perishes through a
fortuitous event and without fault of the donee is not subject to
collation.
Where, however, that property was restored through an indemnity
received because of its loss, a donee shall collate it in the
proportion that the indemnity served to restore
it.
Where the indemnity was not used for that purpose, it is itself
subject to collation .
Art. 856
Fruits and interests from things
subject to collation are due only from the day of the opening of
the succession.
Art. 857
Collation is only due by a coheir to
his coheir; it is not due to legatees nor to creditors of the
succession.
Art. 858
(Act n° 71-523 of 3 July 1971)
Collation is made by taking less. It
may not be required in kind unless otherwise stipulated in the
instrument of gift.
In case of such a stipulation, conveyances and creations of real
rights granted by the donee are extinguished in consequence of
collation, unless the donor has consented to
them.
Art. 859
(Act n° 71-523 of 3 July 1971)
An heir also has the power to collate
in kind property given which still belongs to him provided that
property be free from any encumbrance or occupancy with which it
was not already burdened at the time of the
gift.
Art. 860
(Act n° 71-523 of 3 July 1971)
Collation is due of the value of the
property given at the time of partition, according to its
condition at the time of the gift.
Where the property was transferred before partition, account shall
be taken of the value it had at the time of transfer and, where a
new property was substituted for the property transferred, of the
value of that new property at the time of
partition.
The whole, unless otherwise stipulated in the instrument of
gift.
Where it results from such a stipulation that the value to be
collated is less than the value of the property determined
according to the rules of appraisal provided for by Article 922
below, that difference forms an indirect advantage vested in the
donee over and above his share.
Art. 861
(Act n° 71-523 of 3 July 1971)
Where collation is made in kind and
the condition of the property given was improved by the act of the
donee, account thereof must be taken to him, in consideration of
that by which their value has increased at the time of partition
or transfer.
Likewise account must be taken to the donee of the necessary
expenses which he made for the preservation of the property, even
if they have not improved it.
Art. 862
(Act n° 71-523 of 3 July 1971)
A coheir who makes collation in
kind may retain possession of the property given until the sums
due to him for expenses or improvements have been actually
reimbursed.
Art. 863
(Act n° 71-523 of 3 July 1971)
A donee, on his part, must, in case of
collation in kind, account for degradations and deteriorations
which have reduced the value of the property given through his act
or fault.
Art. 864
(Act n° 71-523 of 3 July 1971)
A gift made in advance of his share to
a compulsory heir who accepts the succession shall be appropriated
to his share of reserve and, subsidiarily to the disposable
portion, unless otherwise agreed in the instrument of
gift.
The excess is subject to abatement.
A gift made in advance of his share to a compulsory heir who
renounces the succession is treated as a gift over and above the
donee's share.
Art. 865
(Act n° 71-523 of 3 July 1971)
A gratuitous transfer made over and
above the beneficiary's share shall be appropriated to the
disposable portion. The excess is subject to
abatement.
Art. 866
(Act n° 71-523 of 3 July 1971)
Gifts made to a person entitled to
inherit, or to persons entitled to inherit, jointly, which exceed
the disposable portion may be retained in whole by the
beneficiaries, whatever the excess may be, provided they
compensate the coheirs in money.
Art. 867
(Act n° 71-523 of 3 July 1971)
Where a legacy made to a person
entitled to inherit, or to persons entitled to inherit, jointly,
relates to a property or several items of property which compose a
whole whose value exceeds the disposable portion, the legatee or
legatees may, whatever the excess, claim in totality the subject
matter of the gratuitous transfer, provided they compensate the
coheirs in money. It shall be likewise even where the gratuitous
transfer involves movable items of property which were in the
common use of the deceased and of the legatee .
Art. 868
(Act n° 71-523 of 3 July 1971)
Where abatement may not be required in
kind, a donee or legatee is debtor for an indemnity equivalent to
the excess portion of the abatable gratuitous transfer. That
indemnity shall be calculated according to the value of the
articles donated or bequeathed at the time of partition, and their
condition on the day when the gratuitous transfer took effect.
It is payable at the time of partition, save agreement between the
coheirs. However, where the subject matter of the gratuitous
transfer is an item of the property which may be the subject of a
preferential allotment, periods may be granted by the court,
account being taken of the interests as they stand, if they were
not granted by the transferor. The granting of those periods may
not in any case have the effect of deferring payment of the
indemnity beyond ten years from the opening of the succession. The
provisions of Article 833-1 shall then apply to the payment of the
sums due.
Failing agreement or stipulation to the contrary, those sums bear
interests at the statutory rate in civil matters. Advantages
resulting from periods and methods of payment granted do not
constitute a gratuitous transfer.
In case of sale of the whole of a property donated or bequeathed,
the sums remaining due become immediately due; in case of partial
sales, the proceeds of those sales are paid to the coheirs and
appropriated to the sums still due.
Art. 869
(Act n° 71-523 of 3 July 1971)
Collation of a sum of money is equal
to its amount. Where, however, it was used to acquire property,
collation of the value of that property is due, in the way
provided for in Article 860 .
Section
III - Of the Payment of Debts
Art. 870
Coheirs contribute between themselves
to the payment of the debts and liabilities of the succession,
each one in proportion to what he takes from it.
Art. 871
A legatee under universal title
contributes with the heirs pro rata to his benefit; but a specific
legatee is not held for the debts and liabilities, except however
a foreclosure action against a bequeathed
immovable.
Art. 872
Where immovables of a succession are
encumbered by annuities with a special mortgage, each coheir
may require that the annuities be reimbursed and the immovables
freed before the composing of the shares. Where the coheirs
partition the succession in the condition in which it stands, the
encumbered immovable must be appraised at the same rate as the
other immovables; the capital of the annuity shall be deducted
from the total value; the heir in whose share that immovable falls
has alone the charge of servicing the annuity and is liable for it
towards his coheirs.
Art. 873
Heirs are held to the debts and
liabilities of the succession personally for their equal share and
portion, and by mortgage for the whole; subject to their remedy
either against their coheirs, or against the universal legatees,
for the part to which the latter must
contribute.
Art. 874
A specific legatee who has paid a debt
encumbering a bequeathed immovable remains subrogated to the
rights of the creditor against the heirs and successors under
universal title.
Art. 875
A coheir or successor under universal
title who, because of a mortgage, has paid more than his share of
a common debt, has a remedy against the other heirs or successors
under universal title only for the share which each of them must
bear personally, even in the case where the coheir who paid the
debt has caused himself to be subrogated to the rights of the
creditor; without prejudice, however, of the rights of a coheir
who, because of benefit of inventory, has retained the power to
demand payment of his personal claim, like any other
creditor.
Art. 876
In case of insolvency of one of the
coheirs or successors under universal title, his share of the
mortgage debt must be divided pro rata between all the
others.
Art. 877
Enforceable instruments against a
deceased are equally enforceable against a heir personally;
creditors, however, may seek enforcement only eight days after
notice of those instruments has been served upon the heir
personally or at his domicile.
Art. 878
They may request, in any case and
against any creditor, separation of the deceased's patrimony from
the heir's patrimony.
Art. 879
That right, however, may no longer be
exercised where there is novation in the claim against the
deceased, by acceptance of the heir as debtor.
Art. 880
It is time-barred, with regard to
movables, after the lapse of three years.
With regard to immovables, an action may be brought as long as
they are in the hands of the heir.
Art. 881
Creditors of an heir are not allowed
to request the separation of the patrimonies against the creditors
of the succession.
Art. 882
In order to prevent that partition be
made in fraud of their rights, creditors of a coparcener may
oppose its being made out of their presence; they have the right
to intervene in it at their own expense; but they may not attack a
partition achieved, unless, however, it was made without them and
notwithstanding an objection they would have made.
Section IV - Of
the Effects of Partition and of Warranty of
Shares
Art. 883
(Act n° 76-1286 of 31 Dec.
1976)
Each coheir shall be deemed to have
succeeded alone and immediately to all the effects comprised in
his share, or falling to him through auction, and never to have
had ownership of the other effects of the succession.
It shall be the same as to the property which came to him through
any other act leading to the cessation of undivided ownership. One
shall not distinguish depending on whether the act causes
undivided ownership to cease in whole or in part, with regard only
to some items of property or to some heirs.
However, transactions lawfully performed either under an agency
given by the coheirs, or under a judicial authorization, maintain
their effects whatever the allotment of the property which was the
subject thereof may be at the time of the
partition.
Art. 884
Coheirs remain respectively warrantors
towards each other only for disturbances and dispossession which
result from a cause previous to the partition.
The warranty may not arise where the kind of dispossession
suffered was excepted by a specific and express clause of the
instrument of partition; it ceases where a heir suffers
dispossession by his own fault.
Art. 885
Each coheir is personally obliged in
proportion to his hereditary share to indemnify his coheir for the
loss which dispossession caused to him.
Where one of the coheirs is insolvent, the portion for which he is
responsible must be equally divided between the warrantor and all
the solvent coheirs.
Art. 886
The warranty of solvency of the debtor
of an annuity may be enforced only within the five years following
the partition. Warranty on account of insolvency does not arise
where it happened only since the partition
achieved.
Section V - Of
Rescission in Matters of Partition
Art. 887
Partitions may be rescinded for reason
of violence or deception.
There may also be occasion for rescission where one of the coheirs
establishes, to his prejudice, loss amounting to more than one
fourth. The mere omission of an article of the succession does not
give rise to an action for rescission, but only to a supplement to
the instrument of partition.
Art. 888
An action for partition is allowed
against any act aiming at putting an end to an undivided
ownership, between coheirs, whether it be characterized as a sale,
exchange, settlement, or in any other manner.
But, after the partition, or the act which takes its place, an
action for rescission is no longer admissible against a settlement
made over the real difficulties which the first act presented,
even though no suit has been initiated on that
subject.
Art. 889
An action is not admitted against a
sale of rights to succession made without fraud to one of the
coheirs, at his own risk, by his other coheirs or one of
them.
Art. 890
In order to decide whether there has
been loss, the articles shall be appraised according to their
value at the time of partition.
Art. 891
The defendant in a claim for
rescission may stop the course of it and prevent a new partition
by offering and delivering to the plaintiff the supplement of his
hereditary share, either in money, or in kind.
Art. 892
A coheir who has transferred his share
in whole or in part, is no longer entitled to bring an action for
rescission on ground of deception or violence, where the transfer
which he made is subsequent to the discovery of the deception, or
to the ending of the violence.
TITLE II
OF GIFTS INTER VIVOS AND OF WILLS
CHAPTER I - GENERAL
PROVISIONS
Art. 893
One may dispose of his property
gratuitously only by gift inter vivos or by will, in the forms
hereinafter laid down.
Art. 894
A gift inter vivos is a transaction by
which the donor divests himself now and irrevocably of the thing
donated, in favour of the donee who accepts it.
Art. 895
A will is a transaction by which a
testator disposes, for the time when he is no longer alive, of the
whole or part of his property, and which he may
revoke.
Art. 896
Substitutions are prohibited
.
Any disposition by which a donee, an heir appointed or a legatee,
is assigned the duty to keep and return to a third party, is void,
even with regard to the donee, the heir appointed or the
legatee.
[repealed]
Art. 897
Are excepted from the first two
paragraphs of the preceding Article the dispositions which the
fathers and mothers and the brothers and sisters are allowed to
make under Chapter VI of this Title.
Art. 898
A disposition by which a third party
is called to take a gift, an inheritance or a legacy, in case a
donee, an heir appointed or a legatee would not take it, shall not
be considered as a substitution, and is valid .
Art. 899
It shall be the same as regards an
inter vivos or testamentary disposition by which a usufruct is
donated to one person and bare ownership to another
.
Art. 900
In any inter vivos or testamentary
disposition, the conditions which are impossible or those which
are contrary to legislation or good morals, shall be deemed to be
not written .
Art. 900-1
(Act n° 71-526 of 3 July 1971)
Clauses of inalienability concerning a
property donated or bequeathed are valid only where they are
temporary and justified by a serious and legitimate interest. Even
in that case, a donee or legatee may be judicially authorized to
dispose of the property if the interest which justified the clause
has disappeared or if it happens that a more important interest so
requires.
[repealed]
The provisions of this Article do not prejudice gratuitous
transfers granted to juridical persons or even to natural persons
responsible for forming juridical persons.
Art. 900-2
(Act n° 84-562 of 4 July 1984)
A beneficiary may apply for judicial
revision of the conditions and charges encumbering the gifts or
legacies which he has received, where, in consequence of a change
of circumstances, performance of them has become for him extremely
difficult, or seriously detrimental.
Art. 900-3
(Act n° 84-562 of 4 July 1984)
A claim for revision shall be
brought as a main action; it may be so also as a counterclaim, in
reply to an action for performance or revocation brought by the
heirs of the disposing person.
It shall be brought against the heirs; it shall be brought at the
same time against the Government procurator's office where there
is doubt as to the existence or identity of some of them; where
there is no known heir, it must be brought against the Government
procurator's office.
The latter shall, in any case, have the case communicated to him.
Art. 900-4
(Act n° 84-562 of 4 July 1984)
A judge seized of a claim for revision
may, according to the circumstances and even of his own motion,
either reduce the quantity or intervals of the performances
encumbering the gratuitous transfer, or modify their character
making allowance for the intention of the disposing person, or
even merge them with analogous performances resulting from other
gratuitous transfers.
He may authorize the transfer of all or part of the property which
is the subject matter of the gratuitous transfer with ordering
that the proceeds thereof be used for purposes in keeping with the
intention of the disposing party.
He shall prescribe measures adapted to maintain, as far as
possible, the denomination which the disposing person intended to
give to his gratuitous transfer.
Art. 900-5
(Act n° 84-562 of 4 July 1984)
A claim is admissible only ten years
after the death of the disposing person or, in case of a
succession of claims, ten years after the judgment which ordered
the previous revision.
A beneficiary must justify the steps he took, during the interval,
to perform his obligations.
Art. 900-6
(Act n° 84-562 of 4 July 1984)
Third party application for rehearing
against a judgment acceding to an application for revision is
admissible only in case of fraud chargeable to the donee or
legatee.
The retraction or reformation of the judgment attacked does not
give rise to any action against the third party purchaser in good
faith.
Art. 900-7
(Act n° 84-562 of 4 July 1984)
Where, after revision, performance of
the conditions or charges, such as it was originally provided,
becomes possible again, it may be requested by the
heirs.
Art. 900-8
(Act n° 84-562 of 4 July 1984)
Shall be deemed not written any clause
by which a disposing party deprives of a gratuitous transfer a
person who questions the validity of a clause of inalienability or
requests authorization to transfer.
CHAPTER II - OF
THE CAPACITY TO DISPOSE OR TO RECEIVE BY INTER VIVOS GIFT OR
BY WILL
Art. 901
To make an inter vivos gift or a will
one must be of sound mind.
Art. 902
All persons may dispose and receive,
either by inter vivos gift, or by will, except those whom
legislation declares to be incapable.
Art. 903
A minor under sixteen years of age may
not in any way dispose, except for what is provided for in Chapter
IX of this Title.
Art. 904
(Act n° 64-1230 of 14 Dec.
1964)
A minor who has reached the age of
sixteen years and is not emancipated, may only dispose by will,
and only to the extent of half of the property which legislation
allows an adult to dispose of.
(Act of 28 Oct. 1916) Where, however, he is called up for a
campaign of war, he may, during the duration of the hostilities,
dispose of the same portion as if he were of full age, in favour
of any of his relatives, or of several of them up to the sixth
degree inclusive or in favour of his surviving
spouse.
Failing relatives of the sixth degree inclusive, a minor may
dispose as a person of full age would do.
Art. 905 [repealed]
Art. 906
To be capable of receiving inter
vivos, one need only to be conceived at the time of the gift.
To be capable of receiving by will, one need only to be conceived
at the time of the death of the testator.
However, the gift or will may only take effect if the child is
born viable.
Art. 907
A minor, although he has reached the
age of sixteen, may not dispose to the benefit of his guardian,
even by will.
(Act n° 64-1230 of 14 Dec. 1964) A minor, having become of
age or emancipated, may not dispose, either by gift inter vivos or
by will, to the benefit of the person who was his guardian, unless
the final account of the guardianship has been previously rendered
and audited.
In the above two cases, the ascendants of minors who are or who
were their guardians are excepted.
Art. 908 and 908-1
[repealed]
Art. 908-2
(Act n° 72-3 of 3 Jan. 1972)
In inter vivos and testamentary
dispositions, the phrases "sons and grandsons, children and
grandchildren", without other addition or designation, refer to
illegitimate descent as well as legitimate, unless the contrary
results from the instrument or from circumstances.
Art. 909
Doctors in medicine or surgery, health
officers and pharmacists who have treated a person during the
disease of which he dies, may not benefit from the inter vivos or
testamentary dispositions which he made in their favour during the
course of that illness.
Are excepted :
1° Specific remunerative dispositions, with regard to the means of
the disposing party and to the services rendered;
2° Universal dispositions, in the case of relationship up to the
fourth degree inclusive, provided however the deceased has no heir
in the direct line; unless the person in whose favour the
disposition was made is himself one of those heirs.
The same rules shall apply to ministers of worship.
Art. 910
Dispositions inter vivos or by will to
the benefit of almshouses, of the poor of a commune or of
public-utility institutions may only take effect as they are
authorized by decree.
Art. 911
Any disposition in favour of a person
under a disability is void, whether it is disguised under the form
of a contract for value, or is made under the names of
intermediaries.
Are deemed intermediaries the father and mother, the children and
descendants, and the spouse of the person under a disability.
Art. 912 [repealed]
CHAPTER III -
OF THE DISPOSABLE PORTION OF PROPERTY AND OF
ABATEMENT
Section I - Of the Disposable Portion of
Property
Art. 913
(Act n° 72-3 of 3 Jan.
1972)
Gratuitous transfers, either by inter
vivos acts or by wills, may not exceed half of the property of a
disposing person, where he leaves only one child at his death;
one-third, where he leaves two children; one-fourth, where he
leaves three or a greater number; without there being occasion to
discriminate between legitimate and illegitimate children
[repealed].
Art. 913-1
(Act n° 72-3 of 3 Jan.
1972)
Are included in Article 913, under the
name of children, descendants in whatever degree, although they
must be counted only for the child whose place they take in the
succession of the disposing party.
Art. 914
(Act n° 72-3 of 3 Jan.
1972)
Gratuitous transfers, either by inter
vivos acts or by wills, may not exceed half of the property where,
failing children, a deceased leaves one or several ascendants in
each of the lines, paternal and maternal, and three-fourths where
he leaves ascendants only in one line .
The property thus reserved for the benefit of ascendants is
received by them in the order that the law calls them to succeed:
they alone are entitled to that reserve in all cases where a
partition concurrently with collaterals would not give them the
portion of property assigned to it.
Art. 914-1
(Act n° 2001-1135 of 3 Dec.
2001)
Gratuitous transfers, either by inter
vivos acts or by wills, may not exceed three-fourths of the
property where, failing descendants and ascendants, a deceased
leaves a surviving spouse, not divorced, against whom does not
exist an order of judicial separation become res judicata and who
is not a party to divorce or judicial separation proceedings.
Art. 915 to 915-2
[repealed]
Art. 916
"Failing descendants, ascendants or a
surviving spouse, not divorced, against whom an order of judicial
separation become res judicata does not exist and who is not a
party to divorce or judicial separation proceedings" (Act n°
2001-1135 of 3 Dec. 2001), gratuitous transfers by inter vivos
acts or by wills may exhaust the whole property.
Art. 917
Where a disposition by inter vivos act
or by will is of a usufruct or of an annuity whose value exceeds
the disposable portion, the heirs for whose benefit the law
establishes a reserve have the option, either to perform that
disposition or to waive ownership of the disposable portion.
Art. 918
The value in full ownership of
property transferred, either on condition of paying a life
annuity, or non-returnable, or with reservation of a usufruct, to
one of the persons entitled to inherit in the direct line, shall
be appropriated to the disposable portion; and the excess, if any,
shall be collated to the mass. That appropriation and that
collation may not be requested by those of the other persons
entitled to inherit in the direct line who may have consented to
those transfers, and, in no case, by persons entitled to inherit
in the collateral line.
Art. 919
(Act of 24 March 1898)
The disposable portion may be donated
in whole or in part, either by act inter vivos or by will, to the
children or other persons entitled to inherit from the donor,
without being subject to collation by the donee or legatee coming
to the succession, provided that, as regards gifts, the
disposition was made expressly over and above the
share.
A declaration that a gift is over and above the share may be made,
either in the instrument containing the disposition, or after, in
the form of inter vivos or testamentary dispositions.
Section II - Of
the Abatement of Gifts and Legacies
Art. 920
Dispositions either inter vivos or
mortis causa, which exceed the disposable portion shall be abated
to that portion at the time of the opening of the succession.
Art. 921
Abatement of dispositions inter vivos
may be requested only by those for whose benefit the law makes a
reserve, by their heirs or assigns: donees, legatees or creditors
of a deceased may not request that abatement or benefit by it.
Art. 922
(Act n° 71-523 of 3 July 1971)
Abatement is determined by forming a
mass of all the property existing at the death of the donor or
testator.
One shall add fictitiously to it, after deducting the debts, that
of which he has disposed by gift inter vivos according to its
condition at the time of the gift and its value at the opening of
the succession. Where property has been transferred, account shall
be taken of its value at the time of transfer and, if there was
substitution, of the value of the new property on the day of the
opening of the succession.
One shall calculate on all that property, having regard to the
kind of heirs whom he leaves, the portion which the deceased may
have disposed of.
Art. 923
There shall never be occasion to abate
gifts inter vivos, until the value of all the property included in
the testamentary dispositions has been exhausted; and where there
is occasion for that abatement it shall be done beginning with the
last gift and so on, going back from the last to the
oldest.
Art. 924
(Act n° 71-523 of 3 July 1971)
A compulsory heir favoured over and
above his share beyond the disposable portion and who accepts the
succession bears the abatement in value as is laid down in Article
866; up to his rights in the reserve, abatement shall be made by
taking less.
He may claim all the articles bequeathed where the reducible
portion does not exceed his share in the reserve.
Art. 925
Where the value of the inter vivos
gifts exceeds or equals the disposable portion, all the
testamentary dispositions lapse.
Art. 926
Where the testamentary dispositions
exceed, either the disposable portion, or that part of the portion
remaining after deduction of the value of the inter vivos gifts,
abatement shall be made pro rata, without any distinction between
universal legacies and specific legacies.
Art. 927
Nevertheless, in all cases where the
testator expressly declared that he intends that a legacy be paid
in preference to others, that preference must take place: and the
legacy to which it applies shall be abated only where the value of
the others does not complete the statutory reserve.
Art. 928
A donee shall return the fruits of
what exceeds the disposable portion from the day of the death of
the donor, where a claim for abatement was brought within the
year; otherwise, from the day of the claim.
Art. 929
(Act n° 71-523 of 3 July 1971)
Rights in rem created by a donee are
extinguished by the effect of abatement. Those rights, however,
maintain their effects where the donor consented to them in the
constitutive instrument or in a subsequent instrument. The donee
is responsible for depreciation resulting from
it.
Art. 930
An action for abatement or recovery
may be brought by the heirs against third parties holding
immovables which were part of gifts and were conveyed by the
donees, in the same manner and in the same order as against the
donees themselves, and after attachment or seizure and sale of
their property. That action must be brought following the order of
the dates of the conveyances, beginning by the most recent.
(Act n° 71-523 of 3 July 1971) Where a donor has consented
to the transfer with the accord of all compulsory heirs born and
alive at the time of it, an action may no longer be brought
against a third party holder.
CHAPTER IV - OF INTER VIVOS GIFTS
Section I - Of the
Form of Inter Vivos Gifts
Art. 931
All acts containing an inter vivos
gift shall be executed before notaires, in the
ordinary form of contracts; and there shall remain the original of
them, on pain of annulment.
Art. 932
An inter vivos gift is binding upon
the donor and produces effect only from the day when it is
accepted in express terms.
Acceptance may be made during the lifetime of the donor, by a
subsequent and authentic instrument of which the original shall
remain; but then the gift has effect, with regard to the donor,
only from the day when he has been given notice of the instrument
which establishes that acceptance.
Art. 933
Where the donor is of full age,
acceptance must be made by him or in his name, by a person having
a power of attorney, containing authority to accept the gift made,
or a general authority to accept all gifts which have or may have
been made.
That power of attorney must be executed before notaires;
and an office copy of it must be annexed to the original of the
gift, or to the original of the acceptance , if made by a separate
instrument.
Art. 934 [repealed]
Art. 935
A gift made to a non-emancipated minor
or to an adult in guardianship must be accepted by his guardian,
in accordance with Article 463, in the Title Of Minority, of
Guardianship and of Emancipation .
[repealed]
(Act n° 64-1230 of 14 Dec. 1964) Nevertheless, the father
and mother of a non-emancipated minor, or the other ascendants,
even during the lifetime of the father and mother, although they
are not guardians of the minor, may accept on his
behalf.
Art. 936
A deaf and dumb person who knows how
to write may accept by himself or through an
agent.
Where he cannot write, acceptance must be made by a curator
appointed for that purpose, according to the rules laid down in
the Title Of Minority, of Guardianship and of
Emancipation.
Art. 937
Gifts made to the benefit of
almshouses, of the poor of a commune or of public-utility
institutions must be accepted by the administrators of those
communes or institutions, after they have been duly
authorized.
Art. 938
A gift duly accepted is complete by
the sole consent of the parties; and ownership of the articles
donated is transferred to the donee without need of any other
delivery.
Art. 939
(Ord. n° 59-71 of 7 Jan. 1959)
Where there is a gift of property
capable of being mortgaged, registration of the instruments
containing the gift and the acceptance, as well as the notice of
acceptance, if it took place by separate instrument, must be made
at the land registry in the arrondissement where the
property is situated.
Art. 940
[repealed]
Where a gift is made to minors, to
adults in guardianship, or to public institutions, registration
shall be made at the suit of guardians, curators or
administrators.
Art. 941
(Ord. n° 59-71 of 7 Jan. 1959)
Failure to have the registration made
may be set up by all interested persons, except, however, those
who are responsible for having the registration made, or their
assigns, and the donor.
Art. 942
(Act n° 85-1372 of 23 Dec.
1985)
Minors and adults in guardianship
shall not be reinstated in case of failure to accept or register
the gifts; subject to their remedy against their guardians, if
there is occasion, and without reinstatement taking place, even
where the guardians are insolvent.
Art. 943
An inter vivos gift may only include
the existing property of the donor; where it includes property to
come, it is void in this regard.
Art. 944
Any inter vivos gift made subject to
conditions whose performance depends on the sole intention of the
donor, is void.
Art. 945
It is likewise void where it was made
under the condition of paying debts or liability other than those
which existed at the time of the gift, or which are expressed
either in the instrument of gift, or in a statement which should
be annexed thereto.
Art. 946
In the case where the donor has
reserved to himself the freedom to dispose of an article included
in the gift, or of a fixed sum out of the property donated, if he
dies without having disposed of them, the said article or sum
shall belong to the donor's heirs, notwithstanding all clauses and
stipulations to the contrary.
Art. 947
The four preceding Articles shall not
apply to the gifts mentioned in Chapters VIII and IX of this
Title.
Art. 948
Any act of gift of movable effects is
valid only as to the effects of which a statement of appraisal,
signed by the donor and the donee, or by those who accept for the
latter, is annexed to the original of the gift.
Art. 949
A donor is allowed to reserve for his
benefit or to dispose for the benefit of another, of the enjoyment
or the usufruct of the movable or immovable property donated.
Art. 950
Where a gift of movable effects is
made with reservation of usufruct, the donee is obliged, at the
expiry of the usufruct, to take the effects donated which are in
kind, in the condition in which they are; and he has an action
against the donor or his heirs on account of the articles which do
not exist, up to the amount of the value which was given to them
in the statement of appraisal.
Art. 951
A donor may stipulate a right of
reversion of the items donated, either for the case of the
predecease of the donee alone, or for the case of the predecease
of the donee and of his descendants;
That right may be stipulated only for the benefit of the donor
alone .
Art. 952
The effect of the right of reversion
is to rescind all conveyances of the immovable property donated,
and to make the property revert to the donor, free and
unencumbered by any liabilities and mortgages, except, however,
the mortgage of dowry and of ante-nuptial agreements, where the
other property of the donor spouse is not sufficient and only in
the case where the gift was made by the same ante-nuptial
agreement from which those rights and mortgages result .
Section II - Of
Exceptions to the Rule of Irrevocability of Inter
Vivos Gifts
Art. 953
An inter vivos gift may be revoked
only for non-performance of the conditions under which it was
made, on account of ingratitude, and on account of unforeseen
birth of children.
Art. 954
In the case of revocation for
non-performance of the conditions, the property shall revert to
the hands of the donor free of all charges and mortgages granted
by the donee: and the donor shall have the same rights against
third parties holding the immovables donated as he would have
against the donee himself.
Art. 955
An inter vivos gift may be revoked on
account of ingratitude only in the following cases:
1° Where the donee has made an attempt against the life of the
donor;
2° Where he has been guilty of cruelty, serious offences or
grievous insults against him;
3° Where he refuses maintenance to him.
Art. 956
Revocation on account of
non-performance of conditions or of ingratitude may never take
place by operation of law.
Art. 957
A claim for revocation on account of
ingratitude must be brought within the year, from the day of the
offence with which the donee is charged by the donor, or from the
day when the offence could have been known by the donor.
That revocation may not be applied for by the donor against the
heirs of the donee, or by the heirs of the donor against the
donee, unless, in the latter case, the action has been initiated
by the donor, or he has died within a year after the
offence.
Art. 958
(Ord. n° 59-71 of 7 Jan. 1959)
A revocation on account of ingratitude
may not prejudice transfers made by a donee, or mortgages and
other real encumbrances with which he may have burdened the
subject matter of the gift, provided they all are previous to the
registration of the claim for revocation at the land registry of
the place of the property .
In case of revocation, the donee shall be ordered to return the
value of the articles transferred, with regard to the time of the
claim, and the fruits, from the day of that
claim.
Art. 959
Gifts in favour of marriage may not be
revoked on account of ingratitude.
Art. 960
All inter vivos gifts made by persons
who had no children or descendants presently living at the time of
the gift, of whatever value they may be, and for whatever reason
they may have been made, and although they were reciprocal or
remunerative, even those made in favour of marriage by persons
other than the ascendants to the spouses, or by the spouses to
each other, are revoked by operation of law by the unforeseen
birth of a legitimate child of the donor, even posthumous, or by
legitimation by subsequent marriage of an illegitimate child,
where he was born after the gift.
Art. 961
That revocation shall take place,
although the child of the donor was conceived at the time of the
gift.
Art. 962
A gift is likewise revoked even if the
donee has taken possession of the property donated and the latter
has been left with him by the donor after the birth of the child;
without, however, the donee being obliged to return the fruits
collected by him, of whatever nature they may be, before the day
when notice of the birth of the child or of his legitimation by
subsequent marriage was served on him by process or other
instrument in due form; and even where the claim for recovering
the property donated was brought only after that
notice.
Art. 963
Property included in a gift revoked by
operation of law, shall revert to the patrimony of the donor free
from all encumbrances and mortgages granted by the donee, without
there being appropriated, even subsidiarily, to the restitution of
the dowry of the wife of that donee, to her recoveries or other
ante-nuptial agreements; and that shall take place even though the
gift was made in favour of the marriage of the donee and included
in the agreement, and the donor has bound himself as surety,
through the gift, for the performance of the ante-nuptial
agreement.
Art. 964
Gifts revoked in this way may not be
revived or resume their effect, either by the death of the donor's
child, or by any confirmatory instrument; and where the donor
wishes to donate the same property to the same donee, either
before or after the death of the child through whose birth the
gift was revoked, he may do so only by a new disposition.
Art. 965
Any clause or agreement by which a
donor renounces the revocation of a gift on account of unforeseen
birth of a child, shall be considered as void and may not produce
any effect .
Art. 966
A donee, his heirs or assigns, or
others detaining things donated, may set up prescription to assert
a gift revoked by the unforeseen birth of a child only after a
possession of thirty years, which may start running only from the
day of the birth of the latest child of the donor, even
posthumous; and without prejudice to interruptions, as provided by
law.
CHAPTER V - OF TESTAMENTARY
DISPOSITIONS
Section I - Of
General Rules on the Form of Wills
Art. 967
Any person may dispose by will, either
under the name of appointment of an heir, or under the name of
legacy, or under any other denomination suitable for expressing
his wish.
Art. 968
A will may not be made in the same
instrument by two or several persons, either for the benefit of a
third person, or as a mutual and reciprocal disposition.
Art. 969
A will may be holographic, or made by
a public instrument, or in the secret form.
Art. 970
An holographic will is not valid
unless it is entirely written, dated and signed by the hand
of the testator: it is not subject to any other
form.
Art. 971
(Act n° 50-1513 of 8 Dec.
1950)
A will by public instrument shall be
received by two notaires or by one notaire
attended by two witnesses.
Art. 972
(Act n° 50-1513 of 8 Dec.
1950)
Where a will is received by two
notaires, it shall be dictated to them by the testator; one
of those notaires shall write it himself or shall
have it written by hand or mechanically.
Where there is only one notaire, it must also be dictated
by the testator; the notaire shall write it himself
or shall have it written by hand or mechanically.
In either case, it must be read over to the
testator.
All of which shall be expressly mentioned.
Art. 973
(Act n° 50-1513 of 8 Dec.
1950)
That will must be signed by the
testator in the presence of the witnesses and of the
notaire; where the testator declares that he does not know
how to sign or is unable to do so, his declaration shall be
expressly mentioned in the instrument, as well as the cause which
prevents him from signing.
Art. 974
(Act n° 50-1513 of 8 Dec.
1950)
The will must be signed by the
witnesses and by the notaire .
Art. 975
Legatees, in whatever class they may
be, their relatives by blood or marriage up to the fourth degree
inclusive, or clerks of the notaires by whom the
instruments are received, may not be taken as witnesses of a will
by public instrument.
Art. 976
(Act n° 50-1513 of 8 Dec.
1950)
Where a testator wishes to make a
secret will, the paper which contains the dispositions or the
paper used as an envelope, if there is one, shall be closed,
stamped and sealed up.
The testator shall present it thus closed, stamped and sealed up
to the notaire and to two witnesses, or he will have it
closed, stamped and sealed up in their presence and he shall
declare that the contents of that paper is his will, signed by
him, and written by him or by another, while affirming in that
latter case, that he has personally verified its contents; he
shall indicate, in all cases, the mode of writing used (by hand or
mechanical).
The notary shall draw up, in original not recorded, an instrument
of superscription which he shall write or have written by hand or
mechanically on that paper, or on the sheet used as an envelop and
bearing the date and indication of the place where it was done, a
description of the cover and of the print of the seal, and mention
of all the above-mentioned formalities; that instrument shall be
signed by the testator as well as by the notaire and the
witnesses.
All that is mentioned above shall be done without interruption and
without attending to other instruments.
In case the testator cannot sign the instrument of superscription
owing to an impediment arisen since the signature of the will,
mention shall be made of the declaration which he makes of it and
of the reason he gives for it.
Art. 977
(Act n° 50-1513 of 8 Dec.
1950)
Where the testator does not know how
to sign or was unable to do so when he had his dispositions
written, one shall proceed as laid down in the preceding Article;
in addition, there shall be mentioned on the instrument of
superscription that the testator declared that he did not know how
to sign or was unable to do so when he had his dispositions
written.
Art. 978
Those who do not know how or are
unable to read, may not make dispositions in the form of a secret
will.
Art. 979
(Act n° 50-1513 of 8 Dec.
1950)
In case the testator is unable to
speak, but can write, he may make a secret will, subject to the
express condition that the will be signed by him and written by
him or another, that he present it to the notaire and to
the witnesses and that he write at the top of the instrument of
superscription, in their presence, that the paper he presents is
his will and sign. Mention shall be made in the instrument of
superscription that the testator has written and signed those
words in the presence of the notaire and of the witnesses
and, furthermore, all which is prescribed by Article 976 and is
not inconsistent with this Article shall be complied
with.
In all cases provided for in this Article and in the preceding
Articles, a secret will in which the statutory formalities were
not complied with and which is void as such, is valid however as a
holographic will, where all the requisites for its validity as
holographic will are fulfilled, even if it was named a secret
will.
Art. 980
(Act n° 50-1513 of 8 Dec.
1950)
Witnesses called to take part in wills
must be French and of full age, know how to sign and have the
enjoyment of their civil rights . They may be of either sex but a
husband and his wife may not be witnesses to the same
instrument.
Section II -
Of Particular Rules on the Form of Certain
Wills
Art. 981
(Act of 17 May 1900)
Wills of soldiers, of sailors of the
State and of persons employed with the armies may be received in
the cases and on the terms provided for in Article 93, either by a
superior officer or military doctor of a corresponding rank, in
the presence of two witnesses; or by two officials of the
Quartermaster Department or two officers of the commissariat; or
by one of those officials or officers in the presence of two
witnesses; or finally, in an isolated detachment, by the officer
commanding the detachment, with the assistance of two witnesses,
where it does not exist in the detachment a superior officer or
military doctor of a corresponding rank, an official of the
Quartermaster Department or an officer of the
commissariat.
The will of the officer commanding an isolated detachment may be
received by the officer coming after him in order of
duty.
The right to make a will in the way provided for in this Article
shall extend to prisoners in the hands of the
enemy.
Art. 982
(Act of 17 May 1900)
Wills mentioned in the preceding
Article may also, where the testator is ill or wounded, be
received in hospitals or military medical units such as defined by
military regulations, by the senior surgeon, whatever his rank may
be, with the assistance of the managing administration
officer.
Failing that administration officer, the presence of two witnesses
is necessary.
Art. 983
(Act of 8 June 1893)
In all cases, an original in duplicate
of the wills mentioned in the two preceding Articles shall be
made.
Where this formality could not be fulfilled because of the state
of health of the testator, an office copy of the will shall be
drawn up to take the place of the second original; that office
copy shall be signed by the witnesses and by the instrumentary
officers. Mention shall be made therein of the reasons which
prevented the second original from being drawn
up.
As soon as communications are possible and within the shortest
time, the two originals or the original and the office copy of the
will shall be addressed separately and by different mails, under
closed and sealed cover, to the Minister of War or of the Navy, to
be filed with the notaire indicated by the testator or,
failing an indication, with the president of the chamber of
notaires of the arrondissement of the last
domicile.
Art. 984
(Act of 8 June 1893)
A will made in the manner established
above is void six months after the testator has come to a place
where he is at liberty to use the ordinary forms, unless, before
the expiry of that period, he is again placed in one of the
special situations provided for in Article 93. The will is then
valid during that special situation and during a new period of six
months after its expiry.
Art. 985
Wills made in a place with which all
communication is interrupted because of the plague or other
contagious disease, may be made before the judge of the
tribunal d'instance or before one of the municipal
officials of the commune, in the presence of two
witnesses.
(Act of 28 July 1915) This provision shall apply to those
suffering from those diseases, as well to those who are in the
contaminated places, although they are not presently
ill.
Art. 986
(Act of 28 July 1915)
Wills made in an island of the
European territory of France, where there exists no office of
notaire, when there is an impossibility of communicating
with the continent, may be received as is laid down in the
preceding Article. The impossibility of communicating must be
certified in the instrument by the judge of the tribunal
d'instance or the municipal official who received the
will.
Art. 987
The wills mentioned in the two
preceding Articles become void six months after communications
have been re-established in the place where the testator is, or
six months after he has gone to a place where they are not
interrupted.
Art. 988
(Act of 8 June 1893)
In the course of a sea voyage, either
on the way or during a stoppage in port, where it is impossible to
communicate with land, or where it does not exist in the port, if
it is in a foreign country, a French diplomatic or consular agent
vested with the functions of a notaire, wills of persons
present on board shall be received, in the presence of two
witnesses: on ships of the State, by the administration officer
or, in his absence, by the captain or one who fulfils his
functions; and on other ships by the captain, master or skipper,
with the assistance of the chief officer, or, in their absence, by
those who fulfil their functions.
The instrument shall indicate that of the above provided
circumstances in which it was received.
Art. 989
(Act of 8 June 1893)
On ships of the state, under the
circumstances provided for in the preceding Article, the will of
the administration officer shall be received by the captain or by
one who fulfils his functions and, where there is no
administration officer, the will of the captain shall be received
by the one coming after him in order of duty.
On other ships, the will of the captain, master or skipper, or
that of the chief officer, shall, under the same circumstances, be
received by the persons who come after them in order of duty.
Art. 990
(Act of 8 June 1893)
In all cases, an original in duplicate
of the wills mentioned in the two preceding Articles shall be
made.
Where that formality could not be fulfilled because of the state
of health of the testator, an office copy of the will shall be
drawn up to take the place of the second original; that office
copy shall be signed by the witnesses and by the instrumentary
officers. Mention shall be made of the reasons which prevented the
second original from being drawn up .
Art. 991
(Act of 8 June 1893)
At the first stoppage in a foreign
port where there is a French diplomatic or consular agent , one of
the originals or the office copy of the will shall be delivered,
under closed and sealed cover, into the hands of that official,
who shall forward it to the Minister of the Navy, in order that it
may be deposited as is stated in Article 983.
Art. 992
(Act of 8 June 1893)
Upon the arrival of the ship in a
French port, the two originals of the will, or the original and
its office copy, or the original which remains, in case of
transmission or delivery effected during the course of the voyage,
shall be deposited, under closed and sealed cover, for the ships
of the State, at the office of commissioning, and for other ships,
at the office of seamen's registration. Each of those documents
shall be addressed separately and by different mails, to the
Minister of the Navy, who shall forward them as is stated in
Article 983.
Art. 993
(Act of 8 June 1893)
On the list of the crew, in regard to
the name of the testator, mention shall be made of the delivery of
the originals or office copy of the will made to the consulate, to
the office of commissioning or to the office of seamen's
registration, in accordance with the prescriptions of the
preceding Articles.
Art. 994
(Act of 8 June 1893)
A will made during the course of a sea
voyage, in the form prescribed in Articles 988 and following, is
valid only where the testator dies on board or within six months
after landing in a place where he could have redone it in the
ordinary forms.
However, where the testator undertakes a new sea voyage before
expiry of that period, the will is valid during the duration of
that voyage and during a new period of six months after the
testator has disembarked again.
Art. 995
(Act of 8 June 1893)
Dispositions inserted in a will made,
in the course of a sea voyage, to the benefit of the officers of
the ship other that those who are relatives by blood or marriage
of the testator, are null and void.
It shall be the same, whether the will is made in the holographic
form or received in accordance with Articles 988 and
following.
Art. 996
(Act of 8 June 1893)
A reading shall be given to the
testator, in the presence of the witnesses, of the provisions of
Articles 984, 987 or 994, as the case may be, and mention of that
reading shall be mentioned in the will .
Art. 997
(Act of 8 June 1893)
The wills included in the above
Articles of this Section shall be signed by the testator, by those
who have received them and by the witnesses.
Art. 998
(Act of 8 June 1893)
Where a testator declares that he is
unable or does not know how to sign, mention shall be made of his
declaration, as well as of the reason which prevents him from
signing.
In the case where the presence of two witnesses is required, the
will shall be signed by one of them at least, and mention shall be
made of the reason why the other did not sign.
Art. 999
A French person who is in a foreign
country may make his testamentary dispositions by instrument under
private signature, as is prescribed in Article 970, or by
authentic instrument, in the forms in use in the place where the
instrument is made.
Art. 1000
Wills made in a foreign country may be
enforced on property situated in France only after they have been
registered at the office of the domicile of the testator, where he
has kept one, otherwise, at the office of his last known domicile
in France; and in the case the will contains dispositions of
immovables there situated, it shall be also registered at the
registry of the situation of those immovables, without a double
tax being charged .
Art. 1001
The formalities to which the various
wills are subject under the provisions of this Section and the
preceding one shall be complied with on pain of
annulment.
Section III
- Of the Appointments of Heirs and of Legacies in
general
Art. 1002
Testamentary dispositions are either
universal, or by universal title, or specific.
Each of those dispositions, whether made under the designation of
appointment of an heir, or made under the designation of legacy,
produces its effect according to the rules hereafter laid down for
universal legacies, for legacies by universal title, or for
specific legacies.
Section IV
- Of Universal Legacies
Art. 1003
A universal legacy is a testamentary
disposition by which a testator donates to one or more persons the
entirety of the property which he may leave at his
death.
Art. 1004
Where, at the death of a testator,
there are heirs to whom a portion of his property is reserved by
law, those heirs are seized by operation of law, by the death, of
all the property of the succession; and a universal legatee is
compelled to request of them the delivery of the property included
in the will.
Art. 1005
However, in the same cases, a
universal legatee has the enjoyment of the property included in
the will from the day of the death, where a claim for delivery was
brought within one year after that time; otherwise, that enjoyment
shall only commence from the day of a claim brought in court, or
from the day when delivery was voluntarily agreed
to.
Art. 1006
Where at the death of a testator there
are no heirs to whom a portion of the property is reserved by law,
a universal legatee is seized by operation of law by the death of
the testator, without being compelled to request delivery.
Art. 1007
(Act n° 66-1012 of 28 Dec.
1966)
Before it produces its effects, an
holographic or secret will shall be deposited in the hands of a
notaire. The will shall be opened where it is sealed . The
notaire shall draw up at once a memorandum of the opening
and of the condition of the will, while specifying the
circumstances of the deposit. The will as well as the memorandum
shall take their place among the original records of the
notaire.
Within the month following the date of
the memorandum, the notaire shall address an office copy of
it and a facsimile of the will to the chief clerk of the
tribunal d'instance of the place of opening of the
succession, who shall acknowledge receipt of those documents and
shall place them among his original records.
Art. 1008
In the case of Article 1006, where the
will is holographic or secret, a universal legatee is bound to
apply to be vested with possession, by an order of the president,
written at the foot of a petition, to which the instrument of
deposit shall be joined.
Art. 1009
A universal legatee who competes with
an heir to whom the law reserves a portion of the property, is
liable for the debts and charges of the succession of the
testator, personally to the extent of his share and portion, and
as to mortgages to the extent of the whole; and he is responsible
for paying all the legacies, except in case of abatement, as is
stated in Articles 926 and 927.
Section V - Of
Legacies by Universal Title
Art. 1010
A legacy by universal title is one by
which the testator bequeaths a portion of the property of which
the law permits him to dispose, such as a half, a third, or all
his immovables, or all his movables, or a fixed portion of all his
immovables or of all his movables.
Any other legacy constitutes only a specific disposition.
Art. 1011
Legatees by universal title are
obliged to request delivery from the heirs to whom a portion of
property is reserved by law; and, failing them, from the heirs
called in the order established by the Title Of
Successions.
Art. 1012
A legatee by universal title is
liable, like a universal legatee, for the debts and charges of the
succession of the testator, personally to the extent of his share
and portion, and as to mortgages to the extent of the
whole.
Art. 1013
Where a testator has disposed of only
a part of the disposable portion, and has done so by universal
title, that legatee is responsible for paying the specific
legacies pro rata with the natural heirs.
Section VI
- Of Specific Legacies
Art. 1014
An outright legacy gives to the
legatee, from the day of the death of the testator, a right to the
thing bequeathed, which right may be transmitted to his heirs or
assigns.
Nevertheless, a specific legatee may be vested with the possession
of the thing bequeathed, or claim the fruits or interests of it
only from the day of his claim for delivery, made following the
order established by Article 1011, or from the day when delivery
was voluntarily granted to him.
Art. 1015
Interests or fruits of a thing
bequeathed accrue to the legatee, from the day of the death, and
without a claim having been brought by him in
court:
1° Where the testator has expressly expressed his wish in this
regard in the will;
2° Where an annuity or a pension has been bequeathed as a
maintenance.
Art. 1016
The costs of a claim for delivery
shall be charged to the succession, without however a reduction of
the statutory reserve resulting from it.
Recording fees are due by the legatee.
All of which, unless otherwise directed by the
will.
Each legacy may be registered separately, without that
registration benefiting to anyone other than the legatee or his
assigns.
Art. 1017
The heirs of the testator, or other
debtors for a legacy, are personally liable for its payment, each
one pro rata of the share and portion by which he benefits in the
succession.
They are responsible as to mortgages for the whole, up to the
amount of the value of the immovables of the succession which they
may hold.
Art. 1018
The thing bequeathed shall be
delivered with its necessary accessories, and in the condition in
which it stands on the day of the death of the
donor.
Art. 1019
Where a person who bequeathed
ownership of an immovable, has increased it thereafter by
acquisitions, those acquisitions, even if contiguous, shall not be
deemed to form a part of the legacy, failing a new
disposition.
It may not be so of improvements or of new constructions made on
the tenement bequeathed, or of an enclosure whose space the
testator has increased.
Art. 1020
Where, before the will or afterwards,
a thing bequeathed has been mortgaged for a debt of the
succession, or even for the debt of a third person, or where it is
burdened with a usufruct, the one who is obliged to pay the legacy
is not bound to disencumber the thing, unless he has been directed
to do so by an express provision of the
testator.
Art. 1021
Where a testator has bequeathed a
thing belonging to others, the legacy is void, whether the
testator knew or not that the thing did not belong to
him.
Art. 1022
Where a legacy is of an undetermined
thing, the heir are not obliged to give it of the best quality,
and he may not offer it of the worst.
Art. 1023
A legacy made to a creditor, may not
be deemed a set-off against his claim, nor a legacy made to a
servant a set-off against his wages.
Art. 1024
A specific legatee is not liable for
the debts of the succession, subject to the abatement of the
legacy, as above stated, and subject to a foreclosure action by
creditors.
Section VII - Of
Testamentary Executors
Art. 1025
A testator may appoint one or several
testamentary executors.
Art. 1026
He may vest them in possession of the
whole or only of part of his movables; but vesting may not last
for more than one year and one day after his
death.
Where he did not grant it to them, they may not demand it.
Art. 1027
An heir may cause vesting to
cease by offering to deliver to the testamentary executors a
sum sufficient to pay the legacies of movables, or by justifying
that payment.
Art. 1028
A person who may not bind himself may
not be a testamentary executor.
Art. 1029 [repealed]
Art. 1030
A minor may not be a testamentary
executor, even with the authorization of his guardian [or curator,
repealed by implication].
Art. 1031
Testamentary executors shall have
seals affixed, where some of the heirs are minors, adults in
guardianship or absentees.
They shall have an inventory made of the property of the
succession, in the presence of the presumptive heir, or he having
been duly summoned.
They shall induce the sale of movables, if there is insufficient
money to pay the legacies.
They shall take care that the will is carried out; and, in
case of controversy as to its carrying out, they may intervene to
support its validity.
They shall account for their management on the expiry of the year
from the death of the testator.
Art. 1032
The powers of a testamentary executor
may not pass to his heirs.
Art. 1033
Where there are several testamentary
executors who have accepted, one alone may act in default of the
others; and they are jointly and severally liable for the account
of the movables which was entrusted to them, unless the testator
has divided their duties and each of them has confined himself to
those which were assigned to him.
Art. 1034
Expenses incurred by a testamentary
executor for affixing seals, for the inventory, the account and
other expenses relating to his duties, shall be charged to the
succession.
Section VIII - Of
the Revocation of Wills and of their
Lapse
Art. 1035
Wills may only be revoked, in whole or
in part, by a subsequent will, or by an instrument before
notaires, containing the declaration of a change of
intention.
Art. 1036
Subsequent wills which do not revoke
previous ones in an express manner annul only those of the
dispositions therein contained which are inconsistent with the new
ones, or which are contrary to them.
Art. 1037
A revocation made in a subsequent will
produces its full effect, even though the new will is not carried
out through a disability of the heir appointed or the legatee, or
their refusal to take it.
Art. 1038
Any transfer made by the testator of
all or part of the thing bequeathed, even by a sale with option of
redemption or by exchange, involves revocation of the legacy as to
everything that was transferred, even though the subsequent
transfer is void and the thing has returned to the hands of the
testator.
Art. 1039
Any testamentary disposition lapses
where the one in whose favour it was made does not survive the
testator.
Art. 1040
Any testamentary disposition made
under a condition depending upon an uncertain event, and such
that, in the intention of the testator, that disposition is to be
carried out only where the event happens or does not happen,
lapses if the appointed heir or the legatee dies before the
condition is fulfilled.
Art. 1041
A condition which, in the intention of
the testator, only suspends the carrying out of the disposition,
does not prevent the appointed heir or the legatee from having a
vested right transmissible to his heirs.
Art. 1042
A legacy lapses, where the thing
bequeathed totally perishes in the lifetime of the
testator.
It shall be likewise where it perishes after his death, without
the act or fault of the heir, although the latter may have been on
notice to deliver it, if it would likewise have perished in the
hands of the legatee.
Art. 1043
A testamentary disposition lapses
where the appointed heir or the legatee repudiates it or is
incompetent to take it .
Art. 1044
There shall be occasion for accruer to
the benefit of the legatees, in the case where a legacy is made
jointly to several of them.
A legacy shall be deemed jointly made where it is made by one and
the same disposition and where the testator did not assign the
share of each of the co-legatees in the thing bequeathed.
Art. 1045
It shall likewise be deemed jointly
made when a thing which is not susceptible of being divided
without deterioration is donated by the same will to several
persons, even separately.
Art. 1046
The same causes which, according
Article 954 and the first two provisions of Article 955, allow a
claim for revocation of an inter vivos gift, shall justify a claim
for revocation of testamentary dispositions.
Art. 1047
Where that claim is based upon a
grievous insult against the memory of the testator, it must be
brought within one year after the day of the offence.
CHAPTER
VI - OF DISPOSITIONS ALLOWED IN FAVOUR OF THE GRANDCHILDREN OF
A DONOR OR TESTATOR OR OF THE CHILDREN OF HIS BROTHERS AND
SISTERS
Art. 1048
Property of which the father and
mother may dispose, may be donated by them, in whole or in part,
to one or several of their children by inter vivos or testamentary
act, with the obligation of returning that property to the
children born and to be born, in the first degree only, of said
donees.
Art. 1049
Is valid, in case of death without
children, a disposition which a deceased made by inter vivos or
testamentary act for the benefit of one or several of his brothers
or sisters, of all or part of the property which is not reserved
by law in his succession, with the obligation of returning that
property to the children born and to be born, in the first degree
only, of said donee brothers or sisters.
Art. 1050
The dispositions allowed by the two
preceding Articles are valid only where the obligation to return
is for the benefit of all the children born and to be born of the
institute, without exception or preference by reason of age or
sex.
Art. 1051
Where, in the above cases, an
institute subject to restitution for the benefit of his children
dies, leaving children in the first degree and descendants of a
pre-deceased child, the latter shall take the portion of the
pre-deceased child, by representation.
Art. 1052
Where a child, brother or sister to
whom property was donated by an inter vivos act, without
obligation of restitution, accepts a new gratuitous transfer made
by an inter vivos or testamentary act, subject to the condition
that the property previously donated be burdened with that
obligation, they are no longer allowed to divide the two
dispositions made for their benefit and to renounce the second to
be satisfied with the first, even if they offer to return the
property included in the second gift.
Art. 1053
The rights of the substitutes take
effect from the time when, for whatever reason, the enjoyment of
the child, the brother or the sister institutes comes to an end:
an anticipated waiver of the enjoyment for the benefit of the
institutes may not prejudice creditors of the institute antecedent
to the waiver.
Art. 1054 [repealed by
implication]
Art. 1055
(Act n° 64-1230 of 14 Dec.
1964)
A person who makes the dispositions
allowed by the preceding Articles may, by the same act, or by a
subsequent act, in authentic form, appoint a guardian in charge of
the execution of those dispositions: that guardian may be
dispensed only for one of the causes expressed in Articles 428 and
following.
Art. 1056
Failing such guardian, one shall be
named at the suit of the institute or of his guardian where he is
a minor, within a period of one month after the day of the death
of the donor or testator, or after the day when, since that death,
the act containing the disposition has become
known.
Art. 1057
An institute who did not comply with
the preceding Article loses the benefit of the disposition; and,
in that case, the right may be declared to be vested in the
substitutes, at the suit either of the substitutes where they are
of full age, or of their guardian or curator, where they are
minors or adults in guardianship, or of any relative of the
substitutes of full age, minors or adults in guardianship,
or even ex officio, at the suit of the Government
procurator of the tribunal de grande instance of the place
where the succession was opened.
Art. 1058
After the death of the person who has
disposed with an obligation of restitution, there shall be made,
in the ordinary forms, an inventory of all the property and
effects composing the succession, except, nevertheless, in case of
a specific legacy. That inventory shall include an appraisal at a
fair price of the movables and movable effects.
Art. 1059
It shall be done at the request of the
institute and within the period fixed in the Title Of
Successions, in the presence of the guardian appointed for the
execution. The expenses shall be taken from the property included
in the succession.
Art. 1060
Where an inventory was not made on
request of the institute within the above period, it shall be done
within the following month at the suit of the guardian appointed
for the execution, in the presence of the institute or of his
guardian.
Art. 1061
Where the two preceding Articles have
not been complied with, the same inventory shall be done, at the
suit of the persons designated in Article 1057, the institute or
his guardian and the guardian appointed for the execution being
summoned.
Art. 1062
The institute shall have a sale passed
on to, by bills and auctions, of all the movables and effects
included in the disposition, with the exception nevertheless of
those mentioned in the two following Articles.
Art. 1063
The furniture and other movable things
which are included in the disposition under the express condition
of keeping them in kind, shall be returned in the condition in
which they are at the time of the restitution.
Art. 1064
Cattle and implements used to exploit
lands shall be deemed included in the donations inter vivos or
testamentary of said lands; and the institute is bound only to
have them appraised and evaluated, in order to return a like value
at the time of the restitution.
Art. 1065
Within a period of six months after
the day of the closing of the inventory, an institute shall invest
the ready money, the funds coming from the proceeds of the
movables and effects which have been sold, and what is received
from bills receivable.
That period may be extended if there is
occasion.
Art. 1066
An institute is likewise bound to
invest the funds coming from bills receivable which are recovered
and from redemptions of annuities; and this, within three months
at the latest after he has received them.
Art. 1067
That investment shall be made in
accordance with the directions of the maker of the disposition,
where he designated the nature of the property in which the
investment must be made; otherwise, it may be made only in
immovables or with a prior charge on immovables.
Art. 1068
The investment prescribed by the
preceding Articles shall be made in the presence and at the suit
of the guardian appointed for the execution.
Art. 1069
(Ord. n° 59-71 of 7 Jan. 1959)
Dispositions by inter vivos or
testamentary acts, with an obligation of restitution, shall, at
the suit either of the institute or of the guardian appointed for
the execution, be registered, as to immovables in accordance with
the statutes and regulations relating to land registration, and as
to preferential or mortgaged claims following the prescriptions of
Articles 2148 and 2149, paragraph 2, of this
Code.
Art. 1070
Lack of "registration" (Ord. n°
59-71 of 7 Jan. 1959) of an instrument containing a
disposition may be set up by creditors and third parties
purchasers, even against minors or adults in guardianship, subject
to the remedy against the institute and the guardian for the
execution, and without the minors or adults in guardianship being
reinstated against that lack of "registration" (Ord. n° 59-71
of 7 Jan. 1959), even where the institute and the guardian are
insolvent.
Art. 1071
Lack of "registration" (Ord. n°
59-71 of 7 Jan. 1959) may not be made good or considered as
remedied by knowledge which the creditors or third parties
purchasers may have had of the disposition in other ways than by
the "registration" (Ord. n° 59-71 of 7 Jan.
1959).
Art. 1072
Donees, legatees, and even the
[deleted] heirs of the person who made the disposition, and
likewise their donees, legatees or heirs may not, in any event,
set up against the substitutes the lack of "registration" (Ord.
n° 59-71 of 7 Jan. 1959) or of recording.
Art. 1073
A guardian appointed for the execution
is personally liable, where he has not, in every way, complied
with the rules hereabove laid down for establishing the property,
for the sale of movables, for the investment of the funds, for the
registration and recording and, in general, where he has not taken
all the necessary steps so that the obligation of restitution be
well and faithfully fulfilled.
Art. 1074
Where the institute is a minor, he may
not, even in case of insolvency of his guardian, be reinstated
against non-compliance with the rules prescribed by the Articles
of this Chapter.
CHAPTER VII
- OF PARTITIONS MADE BY ASCENDANTS
(Act n° 71-523 of 3 July 1971)
Art. 1075
The father and mother and other
ascendants may make a distribution and partition of their property
between their children and descendants.
That act may be made under the form of a partition made by gift or
of a partition made by will. It shall comply with the formalities,
requisites and rules prescribed for inter vivos gifts in the first
case, and for wills in the second, subject to the application of
the provisions which follow.
(Act n° 88-15 of 5 Jan. 1988) Where their property includes
an individual concern of an industrial, commercial, craft,
agricultural or professional character, the father and mother and
other ascendants may, under the same conditions and with the same
effects, distribute and partition them between their children and
descendants and other persons under the form of a partition made
by gift, provided the tangible and intangible property allocated
for the exploiting of the concern is part of that distribution and
that partition, and that distribution and that partition have the
effect of assigning to those other persons only the ownership of
all or part of that property or its enjoyment.
Art. 1075-1
A partition made by an ascendant may
not be attacked for reason of loss.
Art. 1075-2
The provisions of Article 833-1,
paragraph 1, shall apply to balances which are the responsibility
of donees, notwithstanding any agreement to the
contrary.
Art. 1075-3
Where the whole of the property which
an ascendant leaves on the day of his or her death has not been
included in the partition, that item of his or her property which
has not been included shall be assigned or partitioned in
accordance with the law.
Section I - Of Partitions
Made by Gifts
Art. 1076
A partition made by gift may have as
its subject matter only existing property.
A gift and a partition may be made by separate acts, provided the
ascendant is a party to both acts.
Art. 1077
Property received by descendants as an
anticipated partition constitutes an advancement of their portions
of reserve, unless it was donated expressly over and above their
shares.
Art. 1077-1
A descendant who did not participate
in a partition made by gift or who received a part below his
portion of the reserve may bring an action for abatement where
there does not exist at the opening of the succession property not
included in the partition and sufficient to form or make his
reserve complete, account being taken of the gratuitous transfers
by which he may have profited.
Art. 1077-2
Partitions made by gifts shall follow
the rules of inter vivos gifts for all which regards
appropriation, calculation of the reserve and
abatement.
An action for abatement may be brought only after the death of the
ascendant who made the partition or of the survivor of the
ascendants in case of joint partition. It is time-barred after
five years from the said death.
A child not yet conceived at the time of a partition made by gift
has a similar action to form or make his hereditary share
complete.
Art. 1078
Notwithstanding the rules which apply
to inter vivos gifts, the property donated must, unless
otherwise agreed, be appraised at the day of the partition made by
gift as regards appropriation and calculation of the reserve,
provided all the children living or represented at the death of
the ascendant have received a share in the anticipated partition
and have expressly accepted it, and no reservation of a usufruct
bearing on a sum of money has been provided for.
Art. 1078-1
The shares of certain "beneficiaries"
(Act n° 88-15 of 5 Jan. 1988) may be formed, in whole or in
part, from gifts, either subject to collation, or over and above
their shares, which they already received from the ascendant, with
regard possibly to the investments and re-investments which they
may have made in the interval.
The date of appraisal applicable to an anticipated partition shall
also apply to the previous gifts which are thus incorporated into
it. Any stipulation to the contrary shall be deemed not
written.
Art. 1078-2
The parties may also agree that a
previous gift over and above a donee's share be incorporated into
a partition and appropriated to the portion of the reserve of the
donee as an advancement.
Art. 1078-3
The agreements specified in the two
preceding Articles may take place even in the absence of new gifts
of the ascendant. They shall not be considered as gratuitous
transfers between descendants but as a partition made by the
ascendant.
Section II - Of
Partitions Made by Wills
Art. 1079
A partition made by a will produces
only the effects of a partition. Its beneficiaries have the
capacity of heirs and may not forego availing themselves of the
will in order to claim a new partition of the
succession.
Art. 1080
A child or descendant who did not
receive a share equal to his portion of the reserve may bring an
action for abatement in accordance with Article
1077-2.
CHAPTER VIII -
OF GIFTS MADE BY ANTE-NUPTIAL AGREEMENT TO SPOUSES AND TO
CHILDREN TO BE BORN OF THE MARRIAGE
Art. 1081
Every inter vivos gift of existing
property, although made by an ante-nuptial agreement to the
spouses or to one of them, is subject to the general rules
prescribed for the gifts made as such.
It may not take place for the benefit of children to be born
except in the cases stated in Chapter VI of this
Title.
Art. 1082
The father and mother, other
ascendants, collateral relatives of the spouses and even outsiders
may dispose of all or part of the property they will leave on the
day of their death, by an ante-nuptial agreement, as well for the
benefit of said spouses, as for the benefit of children to be born
of their marriage, in case the donor would survive the donee
spouse.
Such gift, although made only for the benefit of the spouses or of
one of them, shall always, in the said case of survival of the
donor, be presumed made for the benefit of the children and
descendants to be born of the marriage.
Art. 1083
A gift, in the form specified in the
preceding Article, is irrevocable, in this sense only that the
donor may not dispose gratuitously of the property contained in
the gift, with the exception of moderate sums, by way of
reimbursement or otherwise.
Art. 1084
A gift by an ante-nuptial agreement
may be done cumulatively of existing and future property, in all
or in part, provided a statement of the debts and charges of the
donor existing at the time of the gift is annexed to the
instrument; in which case, the donee shall be at liberty, at the
time of the death of the donor, to retain the existing property,
by waiving the difference of the donor's
property.
Art. 1085
Where the statement mentioned in the
preceding Article was not annexed to the instrument containing a
gift of the existing and future property, a donee is obliged to
accept or repudiate that gift in whole. In case of acceptance, he
may claim only the property existing on the day of the death of
the donor, and he is liable to pay all the debts and charges of
the succession.
Art. 1086
A gift may also be made by an
ante-nuptial agreement in favour of the spouses and of children to
be born of their marriage, subject to the condition of paying
without distinction all the debts and charges of the succession of
the donor, or subject to other conditions of which the fulfilment
depends upon his wish, by whatever person the gift is made: the
donee is obliged to fulfil the conditions unless he prefers to
renounce the gift; and in case a donor by an ante-nuptial
agreement has reserved to himself the power to dispose of an
article included in the gift of his existing property, or of a
fixed sum to be taken out of that same property, if he dies
without having disposed of them, the article or the sum shall be
deemed included in the gift and shall belong to the donee or his
heirs.
Art. 1087
Gifts made by an ante-nuptial
agreement may not be attacked or declared void on the pretext of
lack of acceptance.
Art. 1088
Any gift made in favour of a marriage
lapses where the marriage does not follow.
Art. 1089
Gifts made to one of the spouses,
under the terms of Articles 1082, 1084 and 1086 above, lapse where
the donor survives the donee spouse and his or her descendants
.
Art. 1090
All gifts made to spouses by their
ante-nuptial agreement are, when the succession of the donor
opens, abatable up to the portion which the law allows the donor
to dispose of.
CHAPTER
IX - OF DISPOSITIONS BETWEEN SPOUSES, EITHER BY ANTE-NUPTIAL
AGREEMENT OR DURING MARRIAGE
Art. 1091
Spouses may, by an ante-nuptial
agreement, make to each other, or one to the other, such gift as
they deem proper, under the amendments hereafter laid
down.
Art. 1092
Any inter vivos gift of existing
property, made between spouses by an ante-nuptial agreement shall
not be deemed made under condition of survival of the donee where
that condition is not formally expressed; and it shall be subject
to all the rules and forms above prescribed for these kinds of
gifts.
Art. 1093
A gift of future property, or of
existing and future property, made between spouses by an
ante-nuptial agreement, either single or reciprocal, shall be
subject to the rules laid down by the preceding Chapter, as
regards similar gifts made by a third person, except that it may
not pass to the children born of the marriage, in case of death of
the donee spouse before the donor spouse.
Art. 1094
(Act n° 72-3 of 3 Jan. 1972)
A spouse may, either by an antenuptial
agreement, or during marriage, in case he or she leaves no
legitimate or illegitimate children or descendants, dispose in
favour of the other spouse in ownership, of everything he or she
may dispose of in favour of a stranger, and, in addition, of the
bare ownership of the portion reserved to ascendants by Article
914 of this Code.
Art. 1094-1
(Act n° 72-3 of 3 Jan. 1972)
Where a spouse leaves children or
descendants, either legitimate, born or not of the marriage, or
illegitimate, he or she may dispose in favour of the other spouse,
either of ownership of what he or she may dispose of in favour of
a stranger, or of one-fourth of his property in ownership and of
the other three-fourths in usufruct, or else of the totality of
property in usufruct only.
Art. 1094-2 [repealed]
Art. 1094-3
(Act n° 72-3 of 3 Jan. 1972)
Children or descendants may,
notwithstanding any stipulation of the disposing party to the
contrary, require, as to property subject to usufruct, that an
inventory of movables as well as a statement of immovables be
drawn up, that funds be invested and that bearer securities be, at
the choice of the usufructuary, converted into registered
securities or deposited with an accredited depositary.
Art. 1095
A minor may, by an ante-nuptial
agreement, donate to the other spouse, either by a single gift or
by a reciprocal gift, only with the consent and assistance of
those whose consent is required for the validity of the marriage;
and with that consent, he may donate everything the law allows a
spouse of full age to donate to the other
spouse.
Art. 1096
(Act of 18 Feb. 1938)
All gifts made between spouses, during
the marriage, although named inter vivos, are always
revocable.
[repealed]
Those gifts are not revoked by the unforeseen birth of
children.
Art. 1097 and 1097-1
[repealed]
Art. 1098
(Act n° 72-3 of 3 Jan. 1972)
Where a remarried spouse made, to his
or her second spouse, within the limits of Article 1094-1, a
gratuitous transfer in ownership, each child of the first bed has,
so far as he is concerned, unless otherwise unequivocally directed
by the disposing party, the power to substitute to the fulfilment
of that transfer the waiver of the usufruct of the share of
succession he would have received failing a surviving spouse
.
Those who have exercised that power may require the application of
the provisions of Article 1094-3 .
Art. 1099
Spouses may not indirectly donate to
each other more what they are allowed by the above provisions
.
Any gift, whether disguised or made to intermediaries, is
void.
Art. 1099-1
(Act n° 67-1179 of 28 Dec.
1967)
Where a spouse acquires a property
with funds which were donated to him or her by the other for that
purpose, the gift is only of the funds and not of the property in
which they were invested.
In that case, the rights of the donor or of his or her heirs have
as their subject matter a sum of money according to the present
value of the property. Where the property has been transferred,
one considers the value it had on the day of the transfer, and
where a new property has been substituted to the property
transferred, the value of that new property.
Art. 1100 [repealed]
TITLE III
OF CONTRACTS OR OF
CONVENTIONAL OBLIGATIONS IN GENERAL
CHAPTER I - PRELIMINARY
PROVISIONS
Art. 1101
A contract is an agreement by which
one or several persons bind themselves, towards one or several
others, to transfer, to do or not to do something.
Art. 1102
A contract is synallagmatic or
bilateral where the contracting parties bind themselves
mutually towards each other.
Art. 1103
It is unilateral where one or
more persons are bound towards one or several others, without
there being any obligation on the part of the
latter.
Art. 1104
It is commutative where each
party binds himself to transfer or do a thing which is considered
as the equivalent of what is transferred to him or of what is done
for him.
Where the equivalent consists in a chance of gain or of loss for
each party, depending upon an uncertain event, a contract is
aleatory.
Art. 1105
A contract of benevolence is
one by which one of the parties procures a purely gratuitous
advantage to the other.
Art. 1106
A contract for value is one
which obliges each party to transfer or do
something.
Art. 1107
Contracts, whether they have a
specific denomination or not, are subject to general rules, which
are the subject matter of this Title.
Particular rules for certain contracts are laid down under the
Titles relating to each of them; and the particular rules for
commercial transactions are laid down by the legislation that
relates to commerce.
CHAPTER II - OF
THE ESSENTIAL REQUISITES FOR THE VALIDITY OF
AGREEMENTS
Art. 1108
Four requisites are essential for the
validity of an agreement:
The consent of the party who binds himself;
His capacity to contract;
A definite object which forms the subject-matter of the
undertaking;
A lawful cause in the obligation.
Section I - Of
Consent
Art. 1109
There is no valid consent, where the
consent was given only by error, or where it was extorted by
duress or abused by deception.
Art. 1110
Error is a ground for annulment of an
agreement only where it rests on the very substance of the thing
which is the object thereof.
It is not a ground for annulment where it only rests on the person
with whom one has the intention of contracting, unless regard
to/for that person was the main cause of the agreement
.
Art. 1111
Duress exerted against the person who
has contracted the obligation is a ground for annulment even
though it was exerted by a third party different from the one for
whose benefit the agreement was made.
Art. 1112
There is duress where it is of a
nature to make an impression upon a reasonable person and where it
can inspire him with a fear of exposing his person or his wealth
to considerable and present harm.
Regard shall be paid, on this question, to the age, the sex and
the condition of the persons.
Art. 1113
Duress is a ground for annulment of a
contract, where it is exerted not only against a contracting
party, but also against the party's spouse, against his or her
descendants or ascendants.
Art. 1114
Reverential fear alone towards a
father, mother or other ascendant, without any duress being
exerted , may not suffice to annul a contract.
Art. 1115
A contract may no longer be attacked
on the ground of duress where, since duress has ceased, that
contract has been approved, either expressly, or by conduct, or in
letting the time fixed by law for restitution
elapse.
Art. 1116
Deception is a ground for annulment of
a contract where the schemes used by one of the parties are such
that it is obvious that, without them, the other party would not
have entered into the contract.
It may not be presumed, and must be proved.
Art. 1117
An agreement entered into by error,
duress or deception is not void by operation of law; it only gives
rise to an action for annulment or rescission, in the cases and in
the manner explained in Section VII of Chapter V of this Title.
Art. 1118
Loss vitiates agreements only in
certain contracts and with regard to certain persons, as will be
explained in the same Section.
Art. 1119
As a rule, one may, bind oneself and
stipulate in his own name, only for oneself.
Art. 1120
One may, nevertheless stand guarantee
for a third party, by promising his acting; subject to a
compensation against him who stood guarantee or promised to obtain
ratification, where the third party refuses to keep the
undertaking.
Art. 1121
One may likewise stipulate for the
benefit of a third party, where it is the condition of a
stipulation which one makes for oneself or of a gift which one
makes to another. He who made that stipulation may no longer
revoke it, where the third party declares that he wishes to take
advantage of it.
Art. 1122
One is deemed to have stipulated for
himself and for his heirs and assigns, unless the contrary is
expressed or results from the nature of the
agreement.
Section II -
Of the Capacity of Contracting
Parties
Art. 1123
Any person may enter into a contract,
unless he has been declared incapable of it by
law.
Art. 1124
(Act n° 68-5 of 3 Jan. 1968)
Are incapable of entering into a
contract, to the extent defined by law:
Non-emancipated minors;
Adults protected within the meaning of Article 488 of this
Code.
Art. 1125
(Act n° 68-5 of 3 Jan. 1968)
Persons capable of binding themselves
may not set up the incapacity of those with whom they have made a
contract.
Art. 1125-1
(Act n° 68-5 of 3 Jan. 1968)
Except for authorization by court, it
is forbidden, on pain of annulment, for whomever exercises a
function or fills an employment in an institution sheltering
elderly persons or dispensing psychiatric care, to stand as
purchaser of a property or assignee of a right belonging to a
person admitted to the institution, or to take on lease lodgings
occupied by that person before his admission to the
institution.
For the implementation of this Article, shall be deemed
intermediaries, the spouse, ascendants and descendants of the
persons to whom the above-enacted prohibitions
apply.
Section III - Of
the Object and Subject-Matter of
Contracts
Art. 1126
Any contract has for its object a
thing which one party binds himself to transfer, or which one
party binds himself to do or not to do.
Art. 1127
The mere use or the mere possession of
a thing may be the object of a contract, like the thing
itself.
Art. 1128
Only things which may be the subject
matter of legal transactions between private individuals may be
the object of agreements.
Art. 1129
An obligation must have for its object
a thing determined at least as to its kind.
The quantity of the thing may be uncertain, provided it can be
determined.
Art. 1130
Future things may be the object of an
obligation.
One may not however renounce a succession which is not open, or
make any stipulation with respect to such succession, even with
the consent of him whose succession is concerned.
Section IV - Of
Cause
Art. 1131
An obligation without cause or
with a false cause, or with an unlawful cause, may
not have any effect.
Art. 1132
An agreement is nevertheless valid,
although its cause is not expressed.
Art. 1133
A cause is unlawful where it is
prohibited by legislation, where it is contrary to public morals
or to public policy.
CHAPTER III - OF THE EFFECT OF
OBLIGATIONS
Section I - General
Provisions
Art. 1134
Agreements lawfully entered into take
the place of the law for those who have made
them.
They may be revoked only by mutual consent, or for causes
authorized by law.
They must be performed in good faith.
Art. 1135
Agreements are binding not only as to
what is therein expressed, but also as to all the consequences
which equity, usage or statute give to the obligation according to
its nature.
Section II –
Of the Obligation to Transfer
Art. 1136
An obligation to transfer carries that
of delivering the thing and of keeping it until delivery, on pain
of damages to the creditor.
Art. 1137
An obligation to watch over the
preservation of a thing, whether the agreement has as its object
the profit of one party, or it has as its object their common
profit, compels the one who is responsible to give it all the care
of a prudent administrator.
That obligation is more or less extensive as regards certain
contracts, whose effects, in this respect, are explained under the
Titles which relate to them.
Art. 1138
An obligation of delivering a thing is
complete by the sole consent of the contracting parties.
It makes the creditor the owner and places the thing at his risks
from the time when it should have been delivered, although the
handing over has not been made, unless the debtor has been given
notice to deliver; in which case, the thing remains at the risk of
the latter.
Art. 1139
A debtor is given notice of default
either through a demand or other equivalent act "such as a letter
missive, where a sufficient requisition results from its terms"
(Act n° 91-650 of 9 July 1991), or by the effect of the
agreement where it provides that the debtor will be put in default
without any notice and through the mere expiry of time .
Art. 1140
The effects of an obligation to convey
or deliver an immovable are regulated in the Title Of Sales
and in the Title Of Prior Charges and Mortgages.
Art. 1141
Where a thing which one is bound to
transfer or deliver to two persons successively is purely movable,
the one of the two who has been put in actual possession is
preferred and remains owner of it, although his title is
subsequent as to date, provided however that the possession is in
good faith.
Section
III - Of the Obligation to Do or not to
Do
Art. 1142
Any obligation to do or not to do
resolves itself into damages, in case of non-performance on the
part of the debtor.
Art. 1143
Nevertheless, a creditor is entitled
to request that what has been done through breach of the
undertaking be destroyed; and he may have himself authorized to
destroy it at the expense of the debtor, without prejudice to
damages, if there is occasion.
Art. 1144
A creditor may also, in case of
non-performance, be authorized to have the obligation performed
himself, at the debtor's expense . "The latter may be ordered to
advance the sums necessary for that performance " (Act n°
91-650 of 9 July 1991) .
Art. 1145
Where there is an obligation not to
do, he who violates it owes damages by the mere fact of the
violation.
Section IV - Of
Damages Resulting from the Non-Performance of
Obligations
Art. 1146
Damages are
due only where a debtor is given notice to fulfil his obligation,
except nevertheless where the thing which the debtor has bound
himself to transfer or to do could be
transferred or done
only within a certain time which he has allowed to elapse. "Notice
of default may follow from a letter missive where a sufficient
requisition results from it" (Act n° 91-650 of 9 July
1991).
Art. 1147
A debtor shall be ordered to pay
damages, if there is occasion, either by reason of the
non-performance of the obligation, or by reason of delay in
performing, whenever he does not prove that the non-performance
comes from an external cause which may not be ascribed to him,
although there is no bad faith on his part.
Art. 1148
There is no occasion for any damages
where a debtor was prevented from transferring or from doing that
to which he was bound, or did what was forbidden to him, by reason
of force majeure or of a fortuitous
event.
Art. 1149
Damages due to a creditor are, as a
rule, for the loss which he has suffered and the profit which he
has been deprived of, subject to the exceptions and modifications
below.
Art. 1150
A debtor is liable only for
damages which were foreseen or which could have been foreseen at
the time of the contract, where it is not through his own
intentional breach that the obligation is not
fulfilled.
Art. 1151
Even in the case where the
non-performance of the agreement is due to the debtor's
intentional breach, damages may include, with respect to the loss
suffered by the creditor and the profit which he has been deprived
of, only what is an immediate and direct consequence of the
non-performance of the agreement.
Art. 1152
Where an agreement provides that he
who fails to perform it will pay a certain sum as damages, the
other party may not be awarded a greater or lesser
sum.
(Act n° 75-597 of 9 July 1975) Nevertheless, the judge may
"even of his own motion" (Act n° 85-1097 of 11 Oct. 1985)
moderate or increase the agreed penalty, where it is obviously
excessive or ridiculously low. Any stipulation to the contrary
shall be deemed unwritten.
Art. 1153
(Act n° 75-619 of 11 July 1975)
In obligations which are restricted to the payment of a
certain sum, the damages resulting from delay in performance shall
consist only in awarding interests at the statutory rate, except
for special rules for commerce and suretyship.
(Ord. n° 59-148 of 7 Jan. 1959) Those damages are due
without the creditor having to prove any loss.
(Act n° 75-619 of 11 July 1975) They are due only from the
day of a demand for payment "or of another equivalent act such as
a letter missive where a sufficient requisition results from it"
(Act n° 92-644 of 13 July 1992), except in the case where
the law makes them run as a matter of right.
(Act of 7 April 1900) A creditor to whom his debtor in
delay has caused, by his bad faith, a loss independent of that
delay may obtain damages distinct from the interest on arrears of
the debt.
Art. 1153-1
(Act n° 85-677 of 5 July 1985)
In all matters, the award of a
compensation involves interest at the statutory rate even failing
a claim or a specific provision in the judgment. Save as otherwise
provided by legislation, that interest runs from the handing down
of the judgment unless the judge otherwise rules . In
case a udgment allowing an
indemnity for compensation of a loss is unreservedly affirmed by
an appellate judge, the
determination as a matter of law produces interest as from the
judgment of first instance. In the other cases, an indemnity
allowed on appeal produces interest from the judgment given in appeal.
The appellate judge may always derogate from the provisions of
this paragraph.
Art. 1154
Interests due on capital may produce
interest, either by a judicial claim, or by a special agreement,
provided that, either in the claim, or in the agreement, the
interest concerned be owed at least for one whole year.
Art. 1155
Nevertheless, the revenue owed, such
as farm rents, rents, arrearages of perpetual or life annuities,
produce interest from the day of the claim or of the
agreement.
The same rule shall apply to the restitution of fruits and to
interest paid by a third party to a creditor on behalf of the
debtor .
Section V-
Of the Interpretation of
Agreements
Art. 1156
One must in agreements seek what the
common intention of the contracting parties was, rather than pay
attention to the literal meaning of the terms.
Art. 1157
Where a clause admits of two meanings,
one shall rather understand it in the one with which it may have
some effect, than in the meaning with which it could not produce
any.
Art. 1158
Terms which admit of two meanings
shall be taken in the meaning which best suits the subject matter
of the contract.
Art. 1159
What is ambiguous shall be interpreted
by what is in use in the region where the contract was
made.
Art. 1160
Terms which are customary shall be
supplemented in the contract, even though they are not expressed
there.
Art. 1161
All the clauses of an agreement are to
be interpreted with reference to one another by giving to each one
the meaning which results from the whole
instrument.
Art. 1162
In case of doubt, an agreement shall
be interpreted against the one who has stipulated, and in favour
of the one who has contracted the obligation .
Art. 1163
However general the terms in which an
agreement is phrased may be, it shall include only the things upon
which the parties appear to have intended to
contract.
Art. 1164
Where in a contract one case was
expressed for explaining the obligation, it shall not be deemed
that it was thereby intended to reduce the scope of the agreement
which extends as of right to cases not expressed.
Section VI - Of
the Effect of Agreements with Respect to Third
Parties
Art. 1165
Agreements produce effect only between
the contracting parties; they do not harm a third party, and they
benefit him only in the case provided for in Article
1121.
Art. 1166
Nevertheless, creditors may exercise
their debtor's rights and actions, except those which are
exclusively dependent on the person.
Art. 1167
They may also, on their own behalf,
attack transactions made by their debtor in fraud of their rights
.
(Act n° 65-570 of 13 July 1965) They shall nevertheless, as
to those of their rights which are laid down in the Title Of
Ante-nuptial Agreement and of Matrimonial Regimes, comply with
the rules therein prescribed .
CHAPTER IV - OF THE VARIOUS KINDS OF
OBLIGATIONS
Section I - Of Conditional
Obligations
§ 1 - Of Condition in
General and of its Various Kinds
Art. 1168
An obligation is conditional where it
is made to depend upon a future and uncertain event, either by
suspending it until the event happens, or by cancelling it,
according to whether the event happens or not.
Art. 1169
A casual condition is one which
depends upon chance and which is in no way in the power of the
creditor or of the debtor.
Art. 1170
A potestative condition is one
which makes the fulfilment of the agreement depend upon an event
which one or the other of the contracting parties has the power to
make happen or to prevent.
Art. 1171
A mixed condition is one which
depends at the same time upon the wish of one of the contracting
parties, and upon the wish of a third party.
Art. 1172
Any condition relating to an
impossible thing, or contrary to public morals, or prohibited by
law, is void, and renders void the agreement which depends upon
it.
Art. 1173
A condition not to do an impossible
thing does not render void the obligation contracted upon that
condition.
Art. 1174
An obligation is void where it was
contracted subject to a potestative condition on the part of the
one who binds himself.
Art. 1175
Every condition must be fulfilled in
the manner in which the parties have in all likelihood wished and
intended that it should be.
Art. 1176
Where an obligation is contracted
subject to the condition that an event will happen within a fixed
time, that condition is deemed failed where the time has elapsed
without the event having happened . Where there is no time fixed,
the condition may always be fulfilled; and it is deemed failed
only when it has become certain that the event will not happen .
Art. 1177
Where an obligation is contracted
subject to the condition that an event will not happen in a fixed
time, that condition is fulfilled when that time has expired
without the event having happened: it is so too when, before the
term, it is certain that the event will not happen; and where
there is no determined time, it is fulfilled only when it is
certain that the event will not happen.
Art. 1178
A condition is deemed fulfilled where
it is the debtor, bound under that condition, who has prevented it
from being fulfilled.
Art. 1179
A condition which is fulfilled has a
retroactive effect to the day when the undertaking was contracted.
Where the creditor dies before the condition is fulfilled,
his rights pass to his heir.
Art. 1180
A creditor may, before the condition
is fulfilled, take all steps to preserve his right.
§ 2 - Of
Condition Precedent
Art. 1181
An obligation contracted under a
condition precedent is one which depends either on a future and
uncertain event, or on an event having presently happened, but
still unknown to the parties.
In the first case, the obligation may be performed only after the
event.
In the second case, the obligation takes effect as from the day
when it was contracted.
Art. 1182
Where an obligation was contracted
under a condition precedent, the thing which is the subject matter
of the agreement remains at the risk of the debtor who has bound
himself to deliver it only in the case of the occurrence of the
condition.
Where the thing perishes entirely, without the fault of the
debtor, the obligation is extinguished.
Where the thing has been deteriorated without the fault of the
debtor, the creditor has the choice either to avoid the
obligation, or to demand the thing in the condition in which it
is, without any price reduction.
Where the thing has been deteriorated through fault of the debtor,
the creditor has the right either to avoid the obligation, or to
demand the thing in the condition in which it is, with
damages.
§ 3 - Of
Condition Subsequent
Art. 1183
A condition subsequent is one which,
when it is fulfilled, brings about the revocation of the
obligation, and which puts things back in the same condition as if
the obligation had not existed.
It does not suspend the fulfilment of the obligation; it only
compels the creditor to return what he has received, in the case
where the event contemplated by the condition
happens.
Art. 1184
A condition subsequent is always
implied in synallagmatic contracts, for the case where one of the
two parties does not carry out his undertaking.
In that case, the contract is not avoided as of right. The party
towards whom the undertaking has not been fulfilled has the choice
either to compel the other to fulfil the agreement when it is
possible, or to request its avoidance with
damages.
Avoidance must be
applied for in court, and the defendant may be granted time
according to circumstances.
Section II - Of
Obligations with a Term
Art. 1185
A term differs from a condition, in
that it does not suspend the undertaking, of which it only delays
the fulfilment.
Art. 1186
What is due only with a term may not
be claimed before the expiry of the term; but what was paid in
advance may not be recovered.
Art. 1187
A term is always presumed stipulated
in favour of the debtor, unless it follows from the stipulation,
or from the circumstances, that it was also agreed in favour of
the creditor.
Art. 1188
(Act n° 85-98 of 25 Jan. 1985)
A debtor may no longer claim the
benefit of a term where by his own act he has lessened the
guarantees which he had given his creditor by the contract.
Section III - Of
Alternative Obligations
Art. 1189
The debtor of an alternative
obligation is discharged by the delivery of one of the two things
which were included in the obligation.
Art. 1190
The choice belongs to the debtor,
where it was not expressly granted to the
creditor.
Art. 1191
A debtor may discharge himself by
delivering one of the things promised; but he may not compel the
creditor to receive a part of one and a part of the
other.
Art. 1192
An obligation is outright, although
contracted in an alternative manner, where one of the two things
promised could not be the subject matter of the
obligation.
Art. 1193
An alternative obligation becomes
outright, where one of the things promised perishes and may no
longer be delivered, even through the fault of the debtor. The
price of that thing may not be offered in its
place.
Where both have perished, and the debtor is at fault as to one of
them, he shall pay the price of the one which has perished
last.
Art. 1194
Where, in the cases provided for in
the preceding Article, the choice was conferred to the creditor
under the agreement,
Either one of the things only has perished; and then, if it is
without fault of the debtor, the creditor shall have the one which
remains; if the debtor is at fault, the creditor may demand the
thing which remains, or the price of the one which has
perished;
Or both things have perished; and then, if the debtor is at fault
as to both, or even only as to one of them, the creditor may
demand the price of one or the other, at his
choice.
Art. 1195
Where both things have perished
without the fault of the debtor, and before he was put in default,
the obligation is extinguished, in accordance with Article
1302.
Art. 1196
The same principles shall apply in
case there are more than two things included in the alternative
obligation.
Section IV - Of Joint and Several
Obligations
§ 1 -
Of Joint and Several Creditors
Art. 1197
An obligation is joint and several
between several creditors, where the instrument of title expressly
gives to each of them the right to demand payment of the whole
claim, and payment made to one of them discharges the debtor,
although the benefit of the obligation is to be partitioned and
divided between the various creditors.
Art. 1198
It is at the choice of the debtor to
pay one or another of joint and several creditors , so long as he
is not prevented by legal proceedings instituted by one of them.
Nevertheless, a release given by only one of the joint and several
creditors discharges the debtor only for the share of that
creditor .
Art. 1199
An act which interrupts the running of
the statute of limitation with respect to one of the joint and
several creditors benefits the other creditors.
§ 2 -
Of Joint and Several Debtors
Art. 1200
There is joint and several liability
on the part of debtors where they are bound for a same thing, so
that each one may be compelled for the whole, and payment made by
one alone discharges the others towards the
creditor.
Art. 1201
An obligation may be joint and several
although one of the debtors is bound differently from another for
payment of the same thing; for instance, where one is bound only
conditionally, whereas the other's undertaking is outright,
or where one has been given time which has not been granted to the
other.
Art. 1202
Joint and several liability may not be
presumed: it must be expressly stipulated.
This rule only ceases in the cases where joint and several
liability exists as a matter of right, under a statutory
provision.
Art. 1203
A creditor of an obligation contracted
jointly and severally may apply to the one of the debtors he
wishes to choose, without the latter being allowed to set up the
benefit of division.
Art. 1204
Proceedings brought against one of the
debtors do not prevent the creditor from instituting similar ones
against the others.
Art. 1205
Where a thing due has perished through
the fault of one or several of the joint and several debtors or
after they were given notice of default, the other debtors are not
discharged from the obligation to pay the price of the thing; but
they are not liable for damages.
The creditor may only recover damages from the debtors through
whose fault the thing has perished or from those who were under
notice of default.
Art. 1206
Proceedings instituted against one of
the joint and several debtors interrupts the running of the
statute of limitation with respect to all.
Art. 1207
A demand for interest brought against
one of the joint and several debtors causes interest to run with
respect to all.
Art. 1208
A joint and several co-debtor sued by
the creditor may set up all the defences which result from the
nature of the obligation, and all those which are personal to him,
as well as those which are common to all the
co-debtors.
He may not set up defences which are purely personal to some of
the other co-debtors.
Art. 1209
Where one of the debtors becomes the
sole heir of the creditor, or where the creditor becomes the sole
heir of one of the debtors, the merger extinguishes the joint and
several claim only for the share and portion of the debtor or of
the creditor.
Art. 1210
A creditor who consents to a division
of the debt with respect to one of the co-debtors retains his
joint and several action against the others, but only under
deduction of the share of the debtor whom he has discharged from
the joint and several liability.
Art. 1211
A creditor who receives severally the
share of one of his debtors, without reserving in the receipt the
joint and several liability or his rights in general, renounces
joint and several liability only with respect to this
debtor.
A creditor is not deemed to release the debtor from the joint and
several liability where he receives from him a sum equal to the
portion for which he is bound, where the receipt does not mention
that it is for his share .
It shall be likewise as to a mere
claim brought against one of the debtors for his share,
where the latter has not admitted the claim, or where no
compensatory judgment has been handed down .
Art. 1212
A creditor who receives severally and
without reservation from one the co-debtors his portion in the
arrears or interest on the debt, loses the joint and several
liability only for the arrears or interest due, not for those to
become due or for the capital, unless the several payment has been
continuing for ten consecutive years.
Art. 1213
An obligation contracted jointly and
severally towards a creditor is divided by operation of law
between the debtors, who are liable between themselves only
each one for his share and portion.
Art. 1214
The co-debtor of a joint and several
obligation, who paid it in full, may recover from the others only
the share and portion of each one of them .
Where one of them is insolvent, the loss occasioned by his
insolvency shall be apportioned pro rata between all the other
solvent co-debtors and the one who made the payment
.
Art. 1215
In case the creditor waives the joint
and several action with respect to one of the debtors, if one or
several of the other co-debtors become insolvent, the portion of
those insolvent shall be apportioned pro rata between all the
debtors, even between those previously discharged from the joint
and several liability by the creditor.
Art. 1216
Where the affair for which the debt
was contracted jointly and severally concerns only one of the
joint and several co-obligors, the latter are liable for the whole
debt towards the other co-debtors, who must be considered with
regard to him only as his sureties .
Section V - Of
Divisible and Indivisible Obligations
Art. 1217
An obligation is divisible or
indivisible according to whether its object is a thing which in
its delivery, or an act which in its performance, is or not
susceptible of a division either physical or intellectual
.
Art. 1218
An obligation is indivisible, although
the thing or act which is its object is divisible by its nature,
where the way in which it is considered in the obligation does not
render it susceptible to part performance .
Art. 1219
A stipulated joint and several
liability does not give the character of indivisibility to an
obligation.
§ 1 - Of the
Effects of Divisible Obligations
Art. 1220
An obligation which is susceptible of
being divided must be performed between the creditor and the
debtor as though it were indivisible. Divisibility operates only
as to their heirs, who may claim the debt or are bound to pay it
only for the shares which they receive or for which they are
liable as representing the creditor or the debtor
.
Art. 1221
The principle established in the
preceding Article is subject to exceptions, with regard to the
heirs of a debtor:
1° Where the debt is secured by a mortgage;
2° Where it is of a thing certain;
3° Where it is a question of an alternative debt of things at the
choice of the creditor, of which one is indivisible;
4° Where one of the heirs is made alone responsible, by the
instrument of title, of the performance of the
obligation;
5° Where it results, either from the nature of the undertaking, or
from the thing which is the object of it, or from the purpose
intended in the contract, that the intention of the contracting
parties was that the debt should not be partially
discharged.
In the first three cases, the heir who possesses the thing due or
the tenement mortgaged for the debt may be sued for the whole on
the thing due or on the tenement mortgaged, subject to his remedy
against his co-heirs. In the fourth case, the heir who is alone
responsible for the debt, and in the fifth case, each heir, may
also be sued for the whole, subject to his remedy against his
co-heirs .
§ 2 - Of
the Effects of Indivisible Obligations
Art. 1222
Each one of those who have jointly
contracted an indivisible debt is liable for the whole, although
the obligation was not contracted jointly and
severally.
Art. 1223
It shall be likewise with regard to
the heirs of a person who has contracted such an
obligation.
Art. 1224
Each heir of the creditor may demand
performance of an indivisible obligation in
whole.
He may not release alone the whole debt; he may not receive alone
the price instead of the thing. Where one of the heirs has alone
released the debt or received the price of the thing, his co-heir
may claim the indivisible thing only by taking into account the
portion of the co-heir who has given the release or received the
price.
Art. 1225
An heir of the debtor, who is sued for
the whole obligation, may request time for joining his co-heirs in
the action, unless the debt is of such a nature that it can be
discharged only by the sued heir, against whom judgment may then
be given, subject to his remedy for compensation against his
co-heirs.
Section VI - Of
Obligations with Penalty Clauses
Art. 1226
A penalty is a clause by which a
person, in order to ensure performance of an agreement, binds
himself to something in case of non-performance.
Art. 1227
Nullity of the principal obligation
involves that of the penalty clause.
Nullity of the latter does no involve that of the principal
obligation.
Art. 1228
A creditor, instead of claiming the
penalty stipulated against the debtor who is under notice of
default, may proceed with the performance of the principal
obligation .
Art. 1229
A penalty clause is a compensation for
the damages which the creditor suffers from the non-performance of
the principal obligation.
He may not claim at the same time the principal and the penalty,
unless it was stipulated for a mere delay.
Art. 1230
Whether the original obligation
contains, or not a term within which it must be performed, the
penalty is incurred only where the one who is bound either to
deliver, or to take, or to do, is under notice of
default.
Art. 1231
(Act N° 75-597 of 9 July 1975)
Where an undertaking has been
performed in part, the agreed penalty may ", even of his own
motion," (Act n° 85-1097 of 11 Oct. 1985) be lessened by
the judge in proportion to the interest which the part performance
has procured for the creditor, without prejudice to the
application of Article 1152. Any stipulation to the contrary shall
be deemed not written.
Art. 1232
Where an original obligation
contracted with a penalty clause relates to an indivisible thing,
the penalty is incurred by the breach of only one of the heirs of
the debtor, and it may be claimed, either for the whole against
the person in breach, or against each of the co-heirs for their
share and portion, and by mortgage for the whole, subject to their
remedy against the one who caused the penalty to be incurred.
Art. 1233
Where an original obligation
contracted under a penalty is divisible, the penalty is incurred
by the one of the debtor's heirs who contravenes that obligation,
and for the share only for which he was bound in the principal
obligation, without there being any action against those who have
performed it.
An exception is made to this rule where the penalty clause having
been added for the purpose that payment may not be made partially,
a co-heir has prevented the performance of the obligation in
whole. In that case, the entire penalty may be claimed against
him, and against the other co-heirs for their portion only, and
subject to their remedy.
CHAPTER V -
OF THE EXTINGUISHMENT OF OBLIGATIONS
Art. 1234
Obligations are
extinguished:
By payment;
By novation;
By voluntary release;
By set-off;
By merger;
By the loss of the thing;
By nullity or rescission;
By the effect of a condition subsequent, as was explained in the
preceding Chapter; and
By the running of the statute of limitation, which will be the
subject matter of a special Title.
Section I - Of Payment
§ 1 - Of Payment
in General
Art. 1235
Any payment supposes a debt: what has
been paid without being owed is subject to
restitution.
Restitution is not allowed with respect to natural obligations
which were voluntarily discharged.
Art. 1236
An obligation may be discharged by any
person having an interest therein, such as a co-obligee or a
surety.
An obligation may even be discharged by a third party who has no
interest therein, provided that party acts in the name and on
behalf of the debtor, or, where he acts in his own name, he is not
subrogated to the rights of the creditor.
Art. 1237
An obligation to do may not be
discharged by a third party against the wish of the creditor,
where the latter has an interest in having it performed by the
debtor himself .
Art. 1238
In order to pay validly, one must be
the owner of the thing given in payment, and be capable of
transferring it.
Nevertheless, the payment of a sum of money or of some other
thing which is consumed by use, may not be recovered from a
creditor who has consumed it in good faith, although the payment
of it was made by a person who was not the owner or who was not
capable of transferring it.
Art. 1239
Payment must be made to the creditor,
or somebody having authority from him, or authorized by the court
or by statute to receive for him.
Payment made to a person who has no authority to receive for the
creditor, is valid, where the latter ratifies it or has profited
by it.
Art. 1240
Payment made in good faith to one who
was in possession of the claim is valid, even if the possessor is
afterwards dispossessed.
Art. 1241
Payment made to a creditor is not
valid, where he was incapable of receiving it, unless the debtor
proves that the thing paid has turned to the advantage of the
creditor.
Art. 1242
Payment made by a debtor to his
creditor, notwithstanding an attachment or a garnishment is not
valid, with respect to the attaching or garnishing creditors: the
latter may, according to their rights, compel him to pay again,
subject, in that case only, to his remedy against the
creditor.
Art. 1243
A creditor may not be compelled to
receive a thing different from the one which is owed to him,
although the value of the thing offered is equal or even
greater.
Art. 1244
(Act n° 91-650 of 9 July 1991)
A debtor may not compel a creditor to
receive payment in part of a debt, even
divisible.
Art. 1244-1
(Act n° 91-650 of 9 July 1991)
However, taking into account the
debtor's position and in consideration of the creditor's needs, a
judge may, within a two-year limit, defer or spread out the
payment of sums due.
By a special judgement, setting out
the grounds on which it is based,
, the judge may
order that the sums corresponding to the deferred due dates carry
interest at a reduced rate which may not be lower than the
statutory rate or that the payments be appropriated first to the
capital.
Furthermore, he may subordinate those measures to the performance,
by the debtor, of acts appropriate for facilitating or
guaranteeing the payment of the debt.
The provisions of this Article shall not apply to debts for
maintenance.
Art. 1244-2
(Act n° 91-650 of 9 July 1991)
The
judgment handed down under Article 1244-1
stays, the enforcement proceedings which may have been
instituted by the creditor. Increases of interest or penalties
incurred because of delay cease to be due during the period fixed
by the judge.
Art. 1244-3
(Act n° 91-650 of 9 July 1991)
Any stipulation contrary to the
provisions of Articles 1244-1 and 1244-2 shall be deemed not
written.
Art. 1245
The debtor of a thing certain and
determined is discharged by the delivery of the thing in the
condition in which it is at the time of delivery, provided that
deteriorations which happened to it did not come from his act or
his fault, or from that of persons for whom he is responsible, or
that before those deteriorations he was not under notice of
default.
Art. 1246
Where a debt is of a thing determined
only as to its kind, a debtor is not obliged to give it in the
best of its kind; but he may not offer it in its
worst.
Art. 1247
(Ord. n° 58-1298 of 23 Dec.
1958)
Payment must be made in the place
designated by the agreement . Where a place is not designated,
payment, if it is for a thing certain and determined, must be made
at the place where the thing forming the object of the obligation
was at the time of that obligation.
Periodical payments ordered for maintenance must be made, subject
to a contrary order of the judge, at
the domicile or at the residence of the person who is to receive
them.
Apart from those cases, payment must be made at the domicile of
the debtor.
Art. 1248
The costs of payment are borne by the
debtor.
§ 2 - Of
Payment with Subrogation
Art. 1249
Subrogation to the rights of a
creditor for the benefit of a third person who pays him is either
conventional or statutory.
Art. 1250
Such subrogation is
conventional:
1° Where a creditor receiving his payment from a third person
subrogates him to his rights, actions, prior charges or mortgages
against the debtor: that subrogation must be express and made at
the same time as the payment;
2° Where a debtor borrows a sum for the purpose of paying his
debt, and of subrogating the lender to the rights of the creditor.
In order that this subrogation be valid, the instrument of loan
and the receipt must be drawn up before notaires ; in the
instrument of loan there must be declared that the sum was
borrowed in order to make the payment, and in the receipt, there
must be declared that the payment has been made from the funds
furnished for this purpose by the new creditor. That subrogation
has its effect without the concurrence of the wish of the
creditor.
Art. 1251
Subrogation takes place by operation
of law:
1° For the benefit of the person who, being himself a creditor,
pays another creditor who is preferred to him by reason of his
prior charges or mortgages;
2° For the benefit of the purchaser of an immovable, who employs
the price of his purchase for the payment of the creditors to whom
that property was mortgaged;
3° For the benefit of the person who, being bound with others or
for others to the payment of a debt, was interested in discharging
it;
4° For the benefit of a beneficiary heir who paid from his own
funds the debts of a succession.
Art. 1252
The subrogation established by the
preceding Articles takes place, as well against sureties as
against debtors: it may not prejudice a creditor where he has only
been paid in part; in that case, he may enforce his rights, for
what remains due to him, in preference to the person from whom he
received only part payment.
§ 3 - Of
Appropriation of Payments
Art. 1253
A debtor of several debts has the
right to declare, when he pays, what debt he intends to discharge
.
Art. 1254
A debtor of a debt which bears
interest or produces arrears , may not, without the consent of the
creditor, appropriate the payment which he makes to the capital in
preference to the arrears or interest: a payment made on capital
and interest, but which is not in full, shall be appropriated
first to interest.
Art. 1255
Where a debtor of various debts has
accepted a receipt by which the creditor has appropriated what he
received to one of those debts in particular, the debtor may no
longer request appropriation to a different debt, unless there has
been deception or trick on the part of the
creditor.
Art. 1256
Where a receipt does not bear any
appropriation, the payment shall be appropriated to the debt which
the debtor had at that time the greatest interest in discharging
among those which are likewise due; otherwise, to the debt due,
although less burdensome than those which are
not.
Where the debts are of equal nature, appropriation shall be made
to the oldest; all things being equal, it shall be made
proportionately.
§
4 - Of Tenders of Payment and of Deposit
Art. 1257
Where a creditor refuses to receive
his payment, the debtor may make him an actual tender, and upon
the refusal of the creditor to accept it, deposit the sum or the
thing tendered.
Actual tenders followed by a deposit discharge the debtor; they
take the place of payment with respect to him, where they are
validly made, and the thing thus deposited remains at the risk of
the creditor.
Art. 1258
In order that an actual tender be
valid, it is necessary:
1° That it be made
to a creditor having capacity to receive, or to the one who has
authority to receive for him;
2° That it be made by a person capable of paying;
3° That it be for the entire sum due, for the arrears or interest
due, for liquidated costs, and for a sum for non-liquidated costs,
subject to its being made up;
4° That the term have elapsed, where it was stipulated in favour
of the creditor;
5° That the condition under which the debt has been contracted has
happened;
6° That the tender be made at the place agreed upon for
payment and that, where there is no special agreement as to the
place of payment, it be made either to the person of the creditor,
or at his domicile, or at the domicile elected for performance of
the agreement;
7° That the tender be made by a ministerial officer having
capacity for such acts.
Art. 1259 [repealed]
Art. 1260
The costs of an actual tender and of a
deposit are borne by the creditor, where they are
valid;
Art. 1261
So long as the deposit has not be
accepted by the creditor, the debtor may withdraw it; and where he
withdraws it, his co-debtors or his sureties are not discharged .
Art. 1262
Where a debtor has himself obtained a
judgment become res judicata, which has declared his tender and
deposit good and valid, he may no longer, even with the consent of
the creditor, withdraw his deposit to the detriment of his
co-debtors or of his sureties .
Art. 1263
A creditor who has consented to the
debtor's withdrawing his deposit after it had been declared valid
by a judgment become res judicata, may no longer, for the payment
of his claim, enforce the prior charges and mortgages which
attached thereto: he has only a mortgage from the day when the act
by which he has consented to the withdrawal of the deposit has
been clothed with the forms required to establish a
mortgage.
Art. 1264
Where the thing owed is a thing
certain which must be delivered at the place where it is, the
debtor must demand of the creditor that he removes it, by notice
served upon him personally or to his domicile or to the domicile
elected for the performance of the agreement. That demand made,
where the creditor does nor remove the thing and the debtor needs
the place in which it is set, he may obtain from the court
permission to deposit it in some other place.
Art. 1265 to 1270
[repealed]
Section II -
Of Novation
Art. 1271
Novation is brought about in three
ways:
1° Where a debtor contracts towards his creditor a new debt which
is substituted for the old one, which is
extinguished;
2° Where a new debtor is substituted for the old one who is
discharged by the creditor;
3° Where, by the effect of a new undertaking, a new creditor is
substituted for the old one, towards whom the debtor is
discharged.
Art. 1272
Novation may be brought about only
between persons capable of contracting.
Art. 1273
Novation may not be presumed; the wish
to bring it about must clearly result from the
instrument.
Art. 1274
Novation by substitution of a new
debtor may be brought about without the assistance of the first
debtor.
Art. 1275
A delegation by which a debtor gives a
creditor another debtor who binds himself towards the creditor,
does not bring about a novation, unless the creditor has expressly
declared that he intended to discharge his debtor who made the
delegation.
Art. 1276
A creditor who has discharged a debtor
by whom a delegation was made, has no remedy against that debtor,
where the delegate becomes insolvent, unless the instrument
contains an express reserve or the delegate was already [under a
judicial arrangement], or insolvent at the time of the
delegation.
Art. 1277
A mere indication, made by a debtor,
of a person who is to pay in his stead, does not bring about a
novation.
It shall be likewise as to a mere indication made by a creditor,
of a person who is to receive for him.
Art. 1278
Prior charges and mortgages of a former claim do not pass to the
one which is substituted to it, unless the creditor has expressly
reserved them.
Art.
1279
Where novation is
brought about by substitution of a new debtor, the original prior
charges and mortgages of the claim do not pass on the property of
the new debtor.
(Act n° 71-579 of 16 July 1971) The original prior charges
and mortgages of the claim may be reserved with the consent of the
owners of the encumbered property, for the guarantee of the
performance of the undertaking of the new debtor
.
Art. 1280
Where novation is brought about
between a creditor and one of the joint and several debtors, the
prior charges and mortgages of the former claim may be reserved
only on the property of the person who contracts the new
debt.
Art. 1281
Co-debtors are released by a novation
made between a creditor and one of the joint and several
debtors.
A novation brought about with respect to a principal debtor
discharges the sureties.
Nevertheless, where a creditor in the first case, has required
adhesion of the co-debtors or, in the second case, that of the
sureties, the former claim subsists, where the co-debtors or the
sureties refuse to agree to the new arrangement.
Section
III - Of Remission of Debt
Art. 1282
A voluntary remittance of the original
instrument under private signature, by a creditor to a debtor, is
proof of discharge.
Art.
1283
A voluntary remittance of the executory copy of the instrument of
title establishes a presumption of remission of the debt or of
payment, without prejudice to proof of the contrary.
Art.
1284
A voluntary
remittance of the original instrument under private signature, or
of the executory copy of the instrument of title, to one of the
joint and several debtors, has the same effect for the benefit of
his co-debtors.
Art. 1285
A remission or agreed discharge for
the benefit of one of the joint and several co-debtors releases
all the others, unless the creditor has expressly reserved his
rights against the latter.
In that last case, he may recover the debt only after deducting
the share of the one to whom he has made the
remission.
Art. 1286
A remittance of a thing given as
pledge does not suffice to establish a presumption of remission of
debt.
Art.
1287
A remission or agreed discharge granted to a principal debtor
releases the sureties;
That granted to a surety does not release the principal
debtor;
That granted to one of the sureties does not release the
others.
Art. 1288
What a creditor has received from a
surety to discharge his security shall be appropriated to the
debt, and turn to the discharge of the principal debtor and of the
other sureties.
Art.
1289
Where two persons are
debtors towards each other, set-off is brought about which
extinguishes both debts, in the manner and in the cases hereafter
laid down.
Art. 1290
Set-off is brought about as of right
by the sole operation of the law, even without the knowledge of
the debtors; the two debts are reciprocally extinguished, from the
moment when they happen to exist at the same time, to the extent
of their respective amounts.
Art. 1291
Set-off takes place only between two
debts which have likewise as their object a sum of money or a
certain quantity of fungibles of the same kind and which are
likewise liquid and due.
Undisputed performances in crops or commodities, and whose price
is fixed by market lists, may be set off against liquid and due
sums.
Art. 1292
Days of grace are not a bar to
set-off.
Art. 1293
Set-off takes place whatever the
origin of either debt may be, except in the
case:
1° Of a claim for restitution of a thing of which the owner has
been unjustly deprived;
2° Of a claim for restitution of a deposit or of a loan for
use;
3° Of a debt due for maintenance declared not liable to
attachment.
Art. 1294
A surety may raise set-off for what
the creditor owes to the principal debtor.
But a principal debtor may not raise set-off of what the creditor
owes to the surety.
Similarly, a joint and several debtor may not raise set-off of
what the creditor owes to his co-debtor.
Art
1295
A debtor who has accepted outright the
assignment which a creditor made of his rights to a third party
may no longer raise against the assignee a set-off which he might
have raised against the assignor before the
acceptance.
As regards an assignment which was not accepted by the debtor, but
notice of which has been served upon him, it prevents only set-off
as to claims subsequent to that notice.
Art. 1296
Where two debts are not payable at the
same place, set-off may be raised only by giving satisfaction as
to the costs of delivery.
Art. 1297
Where several debts due by the same
person may be set off , the same rules are followed as to set-off
as those established for appropriation by Article
1256.
Art.
1298
Set-off does not take place to the
detriment of the vested rights of third parties. Thus, a person
who, being a debtor, has become a creditor after an attachment has
been made in his hands by a third party may not raise set-off to
the detriment of the attaching party.
Art. 1299
He who has paid a debt which was
extinguished as of right by set-off may no longer, by enforcing
the claim for which he has not raised set-off, avail himself of
the prior charges or mortgages attached thereto, to the detriment
of third parties, unless he had good reason for not being aware of
the claim which would have set off his debt.
Section V - Of
Merger
Art. 1300
Where the capacities of creditor and
debtor are united in the same person, a merger is made as of right
which extinguishes both claims.
Art. 1301
A merger which is brought about in the
person of a principal debtor benefits his
sureties;
That which is brought about in the person of a surety does not
involve extinguishment of the principal obligation
;
That which is brought about in the person of a creditor, benefits
his joint and several co-debtors only as to the share and portion
of which he was debtor.
Section VI - Of the
Loss of a Thing Due
Art. 1302
Where a thing certain and determined
which was the object of an obligation perishes, may no longer be
the subject matter of legal transactions between private
individuals, or is lost in such a way that its existence is
absolutely unknown, the obligation is extinguished if the thing
has perished or has been lost without the fault of the debtor, and
before he was under notice of default.
Even where the debtor is under notice of default, if he has not
assumed fortuitous events, the obligation is extinguished in the
case where the thing would also have perished in the hands of the
creditor if it had been delivered to him.
The debtor is obliged to prove the fortuitous event which he
alleges.
In whatever manner a thing which has been stolen may have
perished, or been lost, its loss does not excuse the person who
took it away from restitution of its price.
Art. 1303
Where a thing perishes, may no longer
be the subject matter of legal transactions between private
individuals, or is lost, without the fault of the debtor, he is
obliged, if there are any rights or actions for indemnity with
respect to that thing, to assign them to his
creditor.
Section VII - Of the Action
for Annulment or Rescission of Agreements
Art. 1304
(Act n° 68-05 of 3 Jan . 1968)
In all cases where an action for
annulment or rescission of an agreement is not limited to a
shorter time by a special statute, that action lasts five
years.
In case of duress, that time runs only from the day when it has
ceased; in case of error or deception, from the day when they were
discovered.
As regards transactions entered into by a minor, the time runs
only from the day of majority or emancipation; and as regards
transactions entered into by a protected adult, from the day when
he had knowledge of them, while being in a situation to validly
redo them. It runs against the heirs of a person under a
disability only from the day of the death, unless it has begun to
run previously.
Art. 1305
(Act n° 64-1230 of 14 Dec.
1964)
A mere loss gives rise to rescission
in favour of a non-emancipated minor, with respect to all kinds of
agreements.
Art. 1306
A minor is not entitled to rescission
on the ground of loss, where it results only from a casual and
unforeseen event.
Art.
1307
-A mere declaration of majority, made by a
minor, is not a bar to rescission.
Art. 1308
(Act n° 74-631 of 5 July 1974)
A minor who practises a profession is
not entitled to rescission against undertakings which he has taken
upon himself in the practice thereof.
Art. 1309
A minor is not entitled to rescission
against the terms contained in his ante-nuptial agreement where
they were made with the consent and assistance of those whose
consent is required for the validity of his
marriage.
Art. 1310-
He is not entitled to rescission against
the obligations resulting from his intentional or unintentional
wrongs.
Art. 1311
He is no longer allowed to repudiate
an undertaking which he had entered into during his minority where
he has ratified it when an adult, whether that undertaking was
void in its form, or only subject to rescission.
Art. 1312
(Act of 18 Feb. 1938)
Where minors or adults in guardianship
are entitled in those capacities to rescission against their
undertakings, the repayment of what may have been paid during the
minority or the guardianship of adults in consequence of those
undertakings, may not be demanded, unless it is proved that what
has been paid has turned to their benefit.
Art. 1313
Adults are entitled to rescission for
loss only in the cases and subject to the conditions specially
laid down in this Code.
Art. 1314
Where the formalities required with
regard to minors or adults in guardianship either for the
conveyance of an immovable, or for the partition of a succession,
have been fulfilled, they shall be, in relation to those
transactions, considered as though they had made them during
majority or before the guardianship of adults.
CHAPTER VI -
OF THE PROOF OF OBLIGATIONS AND OF PAYMENT
Art. 1315
A person who claims the performance of an obligation must prove
it.
Reciprocally, a person who claims to be released must substantiate
the payment or the fact which has produced the extinguishment of
his obligation.
Art. 1315-1
(Act n° 2000-230 of 13 March
2000)
The rules relating to documentary
evidence, oral evidence, presumptions, admissions of parties and
oaths are explained in the following Sections .
Section I - Of Documentary
Evidence
§ 1 - General
Provisions
(Act n° 2000-230 of 13 March
2000)
Art. 1316
Documentary evidence, or evidence in
writing, results from a sequence of letters, characters, figures
or of any other signs or symbols having an intelligible meaning,
whatever their medium and the ways and means of their transmission
may be.
Art. 1316-1
A document in
electronic form is admissible as evidence in the same manner as a
paper-based document, provided that the person from whom it
proceeds can be duly identified and that it be established and
stored in conditions calculated to secure its
integrity.
Art. 1316-2
Where a statute has not fixed other
principles, and failing a valid agreement to the contrary between
the parties, the judge shall regulate the conflicts in matters of
documentary evidence by determining by every means the most
credible instrument, whatever its medium may be.
Art. 1316-3
An electronic-based document has the
same probative value as a paper-based document
.
Art. 1316-4
The signature necessary to the
execution of a legal transaction identifies the person who apposes
it. It makes clear the consent of the parties to the obligations
which flow from that transaction. When it is apposed by a public
officer, it confers authenticity to the
document.
Where it is electronic, it consists in a reliable process of
identifying which safeguards its link with the instrument to which
it relates. The reliability of that process shall be presumed,
until proof to the contrary, where an electronic signature is
created, the identity of the signatory secured and the integrity
of the instrument safeguarded, subject to the conditions laid down
by decree in Conseil d’État .
§ 2 - Of
Authentic Instruments
Art. 1317
An authentic instrument is one which
has been received by public officers empowered to draw up such
instruments at the place where the instrument was written and with
the requisite formalities.
(Act n° 2000-230 of 13 March 2000) It may be drawn up on an
electronic medium where it is established and stored in conditions
fixed by decree in Conseil d’État .
Art. 1318
An instrument which is not authentic
because of the lack of power or incapacity of the officer, or of a
defect in form, has the value of a private instrument, if it was
signed by the parties.
Art. 1319
An authentic instrument is conclusive
evidence of the agreement it contains between the contracting
parties and their heirs or assigns.
Nevertheless in case of a criminal complaint for forgery, the
execution of the instrument allegedly forged is suspended by
the indictment; and in case of allegation of forgery made
incidentally, the courts may, according to the circumstances,
suspend temporarily the execution of the
instrument.
Art. 1320
An instrument, either authentic, or
under private signature, is evidence between the parties, even of
what is expressed only in declaratory terms, provided the
declaration has a direct connection with the operative part.
Declarations irrelevant to the operative part may only be used as
a commencement of proof.
Art. 1321
Counter letters may be effective only
between the contracting parties; they may not be effective against
third parties.
§ 3 - Of
Instruments under Private Signature
Art. 1322.-An
instrument under private signature, acknowledged by the person
against whom it is set up, or statutorily held as acknowledged,
is, between those who have signed it and between their heirs and
assigns, as conclusive as an authentic
instrument.
Art. 1323
A person against whom an instrument
under private signature is set up is obliged to formally admit or
disclaim his handwriting or his signature.
His heirs or assigns may confine themselves to declare that they
are not aware of the handwriting or the signature of their
predecessor in title.
Art. 1324.-In the case where the party disclaims
his handwriting or his signature, and in the case where his heirs
or assigns declare that they are not aware of them, a verification
shall be ordered in court.
Art. 1325
Instruments under private signature
which contain synallagmatic agreements are valid only insofar as
they have been made in as many originals as there are parties
having a distinct interest.
One original suffices for all the persons who have the same
interest.
Each original must indicate the number of originals which have
been made.
Nevertheless, a failure to mention that the originals have been
made in duplicate, triplicate, etc., may not be set up by the
party who has performed on his part the agreement entered on
the instrument.
Art. 1326
(Act n° 80-525 of 12July 1980)
The legal transaction by which one
party alone undertakes towards another to pay him a sum of money
or to deliver him a fungible must be ascertained in an instrument
which carries the signature of the person who subscribes that
undertaking as well as the mention, written “by himself” (Act
n° 2000-230 of 13 March 2000), of the sum or of the quantity
in full and in figures. In case of difference, the instrument
under private signature is valid for the sum written in
full.
Art. 1327
[repealed]
Art. 1328
Instruments under private signature
have a date against third parties only from the day when they have
been registered, from the day of the death of the one or one of
those who have signed them, or from the date when their gist is
established in instruments drawn up by public officers, such as
memoranda of sealing or of inventory.
Art. 1329
The registers of merchants are not
evidence of the supplies therein mentioned against persons
who are not merchant, except for what will be stated with regard
to oaths.
Art. 1330
The books of merchants are evidence
against them; but he who wishes to take advantage from them may
not separate from them what they contain contrary to his
claim.
Art. 1331
Family registers and papers do not
constitute an instrument of title for the one who wrote them. They
are evidence against him: 1° in all cases where they formally
state a payment received ; 2° where they contain an express
mention that the entry has been made to make good a defect of the
instrument in favour of the person in whose benefit they state an
obligation.
Art. 1332
A writing made by a creditor at the
end, in the margin or on the back of an instrument who has always
remained in his possession, is evidence, although not signed or
dated by him, where it tends to establish the discharge of the
debtor.
It shall be likewise with a writing made by a creditor on the
back, or in the margin, or at the end of the duplicate of an
instrument or of a receipt, provided that duplicate is in the
hands of the debtor.
§ 4 - Of
Tallies
Art. 1333
Tallies corresponding to their samples
are evidence between persons who are in the practice of thus
establishing the supplies they furnish or receive in
retail.
§ 5 - Of
Copies of Instruments
Art. 1334
Where the original instrument is still
extant, copies are evidence only of what is contained in the
instrument, whose production may always be
required.
Art. 1335
Where the original instrument no
longer exists, copies are evidence according to the following
distinctions:
1° Executory or first office copies
are evidence as the original is: it shall be likewise with the
copies which have been made under the authority of the court, the
parties being present or duly summoned, or with those which have
been made in the presence of the parties and by their mutual
consent.
2° Copies which, without the authority of the court or without the
consent of the parties and since the delivery of the executory or
first office copies, have been made from the original of the
instrument by the notaire who received it, or by one of his
successors, or by public officers who, in such capacity, are
depositaries of the originals, may, in case or loss of the
original, be evidence when they are ancient.
They shall be deemed ancient where they are more than thirty years
old.
Where they are less than thirty years old, they may only be used
as a commencement of proof in writing.
3° Where the copies made from the original of an instrument were
done by the notaire who received it, or by one of his
successors, or by public officers who, in such capacity, are
depositaries of the originals, they may be used, however ancient
they may be, only as a commencement of proof in
writing.
4° Copies of copies may, according to the circumstances, be
considered as mere information.
Art. 1336
The registration of an instrument on
public registers may only be used as a commencement of proof in
writing; and even for that purpose it shall be necessary
:
1° That it be certain that all the originals of the
notaire, of the year in which the instrument appears to
have been made, are lost, or that one proves that the loss of the
original occurred through a particular accident;
2° That there exist an orderly list of the notaire, which
establishes that the instrument was made at the same
date.
Where, owing to the concurrence of these two circumstances oral
evidence is admitted, those who were witnesses to the instrument
shall be heard, if they are still alive .
§ 6 - Of
Instruments of Recognition and of
Confirmation
Art. 1337.-Instruments of recognition do not
relieve from the production of the original instrument, unless its
terms are specially stated therein.
What they may contain in addition to the original instrument, or
what is different therein, has no effect.
Nevertheless, where there are several consistent recognitions,
supported by possession, and of which one dates back thirty years,
the creditor may be relieved from producing the original
instrument.
Art. 1338
An instrument of confirmation or
ratification of an obligation against which legislation allows an
action for annulment or rescission is valid only where are found
therein the gist of that obligation, mention of the ground of the
action for rescission, and the intention to cure the defect upon
which that action is based.
Failing an instrument of confirmation or ratification, it is
sufficient that the obligation be performed voluntarily after the
time when the obligation might be validly performed or ratified.
Confirmation, ratification, or voluntary performance in the forms
and at the time determined by law, implies waiver of the grounds
and exceptions which might be raised against that instrument,
without prejudice however to the rights of third
parties.
Art. 1339
A donor may not cure by any act of
confirmation the defects of a gift inter vivos, void as to form:
it must be remade in the form prescribed by law.
Art. 1340
Confirmation or ratification, or
voluntary performance of a gift by the heirs or assigns of a
donor, after his death, implies that they waive their right to
raise either the defects in form or any other
defences.
Section II - Of
Oral Evidence
Art. 1341
(Act n° 80-525 of 12 July
1980)
An instrument
before notaires or under private signature must be executed
in all matters exceeding a sum or value fixed by
decree1, even
for voluntary deposits, and no proof by witness is allowed against
or beyond the contents of instruments, or as to what is alleged to
have been said before, at the time of, or after the instruments,
although it is a question of a lesser sum or
value.
All of which without prejudice to what is prescribed in the
statutes relating to commerce.
1 D.
n° 80-533 of 15 July 1980 : 5 000 F (800
€)
Art. 1342
(Act n° 80-525 of 12 July
1980)
The above rule shall apply where an
action contains, in addition to a claim for capital, a claim for
interest which, added to the capital, exceeds the figure provided
for in the preceding Article.
Art. 1343
(Act n° 80-525 of 12 July
1980)
A person who has brought a claim
exceeding the figure provided for in Article 1341 may no longer be
allowed to produce oral evidence, even by reducing his original
claim.
Art. 1344
(Act n° 80-525 of 12 July
1980)
Oral evidence may not be allowed on a
claim for a sum even lesser than that which is provided for in
Article 1341, where that sum is declared to be the balance or to
form part of a larger claim which is not proved in
writing.
Art. 1345
(Act n° 80-525 of 12 July
1980)
Where, in the same proceedings, a
party asserts several claims for which he has no written
instrument, and where, joined together, they exceed the sum
provided for in Article 1341, oral evidence of them may not be
allowed, although the party alleges that those claims come from
different origins and that they were formed at different times,
unless those rights are derived from succession, gift or
otherwise, from different persons.
Art. 1346
All claims, whatever their ground may
be, which are not fully justified in writing, shall be brought by
the same process, after which the other claims of which there is
no written evidence may not be received .
Art. 1347
The above rules are subject to
exception where there exists a commencement of proof in
writing.
Is so called any instrument in writing which emanates from the
person against whom a claim is brought, or from the person he
represents, and which makes probable the alleged fact.
(Act n° 75-596 of 9 July 1975) May be considered by
the judge as equivalent to a commencement of proof in writing the
declarations made by a party at the time of his personal
examination, his refusal to answer or his absence at the
examination .
Art. 1348
(Act n° 80-525 of 12 July
1980)
The above rules are also subject to
exceptions where the obligation arises from a quasi-contract, an
intentional or unintentional wrong, or where one of the parties
either did not have the material or moral possibility to procure a
written proof of a legal transaction, or has lost the instrument
which served him as written proof in consequence of a fortuitous
event or of force majeure.
They are also subject to exceptions where a party or a depositary
has not kept the original instrument and presents a copy which is
a reproduction that is not only faithful but also enduring.
Is deemed enduring an indelible reproduction of the original which
involves a non-reversible alteration of the
medium.
Section III - Of
Presumptions
Art. 1349
Presumptions are the consequences that
a statute or the court draws from a known fact to an unknown
fact.
§ 1 - Of
Presumptions Established by Statute
Art. 1350
A statutory presumption is one which
is attached by a special statute to certain transactions or to
certain facts; such as:
1° The transactions which a statute declares void, as presumed
made in fraud of its provisions, from their nature
alone;
2° The cases in which a statute declares ownership or discharge to
result from certain determined circumstances;
3° The authority which law gives to res
judicata;
4° The force which law attaches to an admission of a party or to
his oath.
Art. 1351
The force of res judicata takes
place only with respect to what was the subject matter of a
judgment. It is necessary that the thing claimed be the same; that
the claim be based on the same grounds; that the claim be between
the same parties and brought by them and against them in the same
capacity.
Art. 1352
A statutory presumption dispenses from
any proof him in whose favour it exists.
No proof is allowed against a statutory presumption, where, on the
basis of such presumption, the law annuls certain transactions or
denies a right of action, unless it reserves contrary evidence and
subject to what will be said on judicial oath and
admissions.
§
2 - Of Presumptions Which are not Established by
Statute
Art. 1353
The presumptions which are not
established by a statute are left to the insight and carefulness
of the judges, who shall only admit serious, precise and
concurrent presumptions, and in the cases only where statutes
admit oral evidence, unless a transaction is attacked for reason
of fraud or deception.
Section
IV - Of Admissions of a Party
Art. 1354
An admission which is set up against a
party is either extra-judicial or judicial.
Art. 1355
An allegation of an extra-judicial
admission which is purely verbal is useless whenever the claim is
one in which oral evidence would not be
admissible.
Art. 1356
A judicial admission is a declaration
which a party or his special agent makes in
court.
It is conclusive evidence against him who made
it;
It may not be divided against him;
It may not be revoked, unless it is proved that it was the result
of an error of fact. It might not be revoked under the pretext of
an error of law.
Section V - Of
Oaths
Art. 1357
A judicial oath is of two kinds
:
1° The one which a party tenders to the other in order to make the
judgment of the case depend upon it: it is called decisive
;
2° The one which is tendered by the judge of his own motion to one
or another of the parties.
§ 1 - Of Decisive
Oaths
Art. 1358
A decisive oath may be tendered in any
kind of controversies whatsoever.
Art. 1359
It may be tendered only as to a fact which is personal to the
party to whom it is tendered.
Art. 1360
It may be tendered at all stages of
the case and although there exists no commencement of proof in
writing of the claim or of the defence in relation to which it is
instigated.
Art. 1361
A person to whom an oath is tendered,
who refuses it or does not consent to tender it back to his
opponent, or an opponent to whom it has been tendered back and who
refuses it, shall be defeated in his claim or in his
defence.
Art. 1362
An oath may not be tendered back where
the fact to which it relates does not concern both parties, but is
purely personal to the one to whom the oath was
tendered.
Art. 1363
Where an oath tendered or tendered
back has been taken, the opponent is not admitted to prove the
falsity of it.
Art. 1364
The party who has tendered or tendered
back an oath may no longer retract where the opponent has declared
that he is ready to take the oath.
Art. 1365
An oath is evidence only for the
benefit of the person who has tendered it or against him, and for
the benefit of his heirs and assigns or against
them.
Nevertheless an oath tendered by one of the joint and several
creditors to a debtor discharges the latter only for the share of
that creditor;
An oath tendered to a principal debtor discharges also the
sureties;
The one tendered to one of the joint and several debtors benefits
the co-debtors;
And the one tendered to a surety benefits the principal debtor.
In the last two cases, the oath of a joint and several co-debtor
or of a surety benefits the other co-debtors or the principal
debtor only where it has been tendered in connection with the
debt, and not with the circumstance of the joint and several
liability or of the security.
§ 2 - Of Oaths
Tendered by a Judge of his Own Motion
Art. 1366
A judge may tender an oath to one of
the party, in order either to make the decision of the case depend
upon it, or only to fix the amount of the order.
Art. 1367
A judge may tender an oath of his own
motion, with reference either to a claim or to a defence set up
against it, only subject to the following two conditions; it is
necessary:
1° That the claim or the defence be not fully substantiated;
2° That it be not wholly deprived of proof.
Outside those two cases, the judge must either admit or dismiss
the claim outright.
Art. 1368
An oath tendered by the judge of his
own motion to one of the parties may not be tendered back by that
party to the other.
Art. 1369
An oath as to the value of a thing
claimed may be tendered by the judge to the plaintiff only where
it is otherwise impossible to establish that
value.
Even in that case, the judge must determine the sum up to the
amount of which the plaintiff shall be believed on his
oath.
TITLE
IV
OF UNDERTAKINGS FORMED WITHOUT AN
AGREEMENT
Art. 1370
Certain undertakings are formed
without the intervention of any agreement, either on the part of
him who binds himself, or on the part of him towards whom he is
bound.
Some of them result from the sole authority of legislation; others
arise from an act personal to the one who is
obligated.
The former are the undertakings formed involuntarily, such as
those between neighbouring owners, or those of guardians and other
administrators who may not refuse the duties which are imposed
upon them.
Undertakings arising from an act personal to him who is bound
result either from quasi- contracts, or from intentional or
unintentional wrongs; they constitute the subject-matter of this
Title .
CHAPTER I - OF
QUASI-CONTRACTS
Art. 1371
Quasi-contracts are purely voluntary
acts of man, from which there results some undertaking towards a
third party, and sometimes a reciprocal undertaking of both
parties.
Art. 1372
Where one voluntarily manages
another’s business, whether the owner is aware of the management,
or whether he is not, he who manages contracts a tacit undertaking
to continue the management which he has embarked on, and to
complete it until the owner is in a position to look after it
himself; he must also take charge of all the continuations of that
business.
He is then subject to all the obligations which would result from
an express authority which the owner might have confided to
him.
Art. 1373
He is bound to continue his
management, although the owner happens to die before the
business is achieved , until a heir is able to take over the
business.
Art. 1374
He is bound to bring to the management
of the business all the care of a prudent
administrator.
Nevertheless, the circumstances which have led him to take the
responsibility of the business may authorize the judge to restrain
the damages which would result from the faults or negligent
conduct of the manager.
Art. 1375
The owner whose business has been well
managed must fulfil the undertakings which the manager has
contracted in his name, indemnify him for all the personal
undertakings into which he has entered and reimburse him for all
the useful or necessary expenses which he has incurred.
Art. 1376
He who receives by error or knowingly
what is not owed to him is bound to make restitution to the person
from whom he has unduly received it.
Art. 1377
Where a person who, by error, believed
himself to be the debtor, pays a debt, he has the right to
recovery against the creditor.
Nevertheless, that right ceases where the creditor has cancelled
his instrument of title in consequence of the payment, subject to
the remedy of the person who has paid against the true debtor.
Art. 1378
Where there has been bad faith on the
part of the person who received, he is bound to make restitution,
of the capital as well as of interest or fruits, from the day of
payment.
Art. 1379
Where the thing unduly received is an
immovable or a tangible movable, the person who has received it
binds himself to make restitution in kind, if it exists, or of its
value, if it has perished or deteriorated through his fault; he is
even guarantor of its loss by fortuitous event, if he received it
in bad faith.
Art. 1380
Where the person who received in good
faith has sold the thing, he must make restitution only of the
proceeds of the sale.
Art. 1381
The person to whom a thing is restored
must account, even to a possessor in bad faith, of all the
necessary and useful expenses which have been incurred for the
preservation of the thing.
CHAPTER
II OF INTENTIONAL AND UNINTENTIONAL
WRONGS
[OF TORTS]
Art. 1382
Any act whatever of man, which causes
damage to another, obliges the one by whose fault it occurred, to
compensate it.
Art. 1383
Everyone is liable for the damage he
causes not only by his intentional act, but also by his negligent
conduct or by his imprudence.
Art. 1384
A person is liable not only for the
damages he causes by his own act, but also for that which is
caused by the acts of persons for whom he is responsible, or by
things which are in his custody.
(Act of 7 Nov. 1922) However, a person who possesses,
regardless of the basis thereof, all or part of a building
or of movable property in which a fire has originated is not
liable towards third parties for damages caused by that fire
unless it is proved that the fire must be attributed to his fault
of to the fault of persons for whom he is
responsible.
(Act of 7 Nov. 1922) This provision may not apply to the
landlord and tenant relationship, which remains governed by
Articles 1733 and 1734 of the Civil Code.
(Act n° 70-459 of 4 June 1970) The father and mother, in so
far as they exercise “parental authority” (Act n° 2002-305 of 4
March 2002), are jointly and severally liable for the damage
caused by their minor children who live with
them.
Masters and employers, for the damage caused by their servants and
employees in the functions for which they have been
employed;
Teachers and craftsmen, for the damage caused by their pupils and
apprentices during the time when they are under their
supervision.
(Act of 5 April 1937) The above liability exists, unless
the father and mother or the craftsmen prove that they could not
prevent the act which gives rise to that
liability.
(Act of 5 April 1937) As to teachers, the faults,
imprudence or negligent conducts invoked against them as having
caused the damaging act must be proved by the plaintiff at the
trial, in accordance with the general law.
Art. 1385
The owner of an animal, or the person
using it, during the period of usage, is liable for the damage the
animal has caused, whether the animal was under his custody, or
whether it had strayed or escaped .
Art. 1386
The owner of a building is liable for
the damage caused by its collapse, where it happens as a result of
lack of maintenance or of a defect in its construction .
TITLE IV
bis
OF LIABILITY FOR DEFECTIVE
PRODUCTS
(Act n° 98-389 of 19 May 1998)
Art. 1386-1
A producer is liable for damages
caused by a defect in his product, whether he was bound by a
contract with the injured person or not.
Art. 1386-2
The provisions of this Title shall
apply to a damage resulting from an injury to the person or to a
property other than the defective product.
Art. 1386-3
A product is any movable, even though
incorporated into an immovable, including the products of the
soil, of stock-farming, of hunting and fishing. Electricity shall
be deemed a product.
Art. 1386-4
A product is defective within the
meaning of this Title where it does not provide the safety
which a person is entitled to expect.
In order to appraise the safety which a person is entitled to
expect, regard shall be had to all the circumstances and in
particular to the presentation of the product, the use to which
one could reasonably expect that it would be put, and the time
when the product was put into circulation.
A product shall not be considered defective for the sole reason
that a better product is subsequently put into circulation.
Art. 1386-5
A product is put into circulation when
the producer has voluntarily parted with it.
A product is put into circulation only once.
Art. 1386-6
Is a producer, the manufacturer of a
finished product, the producer of a raw material, the manufacturer
of a component part, where he acts as a
professional.
For the implementation of this Title, shall be treated in the same
way as a producer any person acting as a
professional:
1° Who presents himself as the producer by putting his name, trade
mark or other distinguishing feature on the
product;
2° Who imports a product into the European Community for sale,
hire, with or without a promise of sale, or any other form of
distribution.
Shall not be deemed producers, within the meaning of this Title,
the persons whose liability may be sought on the basis of
Articles 1792 to 1792-6 and 1646-1.
Art. 1386-7
A seller, a hirer, with the exception
of a finance lessor or of a hirer similar to a finance lessor, or
any other professional supplier is liable for the lack of safety
of a product in the same conditions as a producer
.
The remedy of a supplier against a producer is subject to the same
rules as a claim brought by a direct victim of a defect. However,
he must take action within the year following the date of his
being summoned .
Art. 1386-8
In case of damage caused by a product
incorporated into another, the producer of the component part and
the one who has effected the incorporation are jointly and
severally liable .
Art. 1386-9
The plaintiff is required to prove the
damage, the defect and the causal relationship between defect and
damage.
Art. 1386-10
A producer may be liable for a defect
although the product was manufactured in accordance with the rules
of the trade or of existing standards or although it was the
subject of an administrative authorization.
Art. 1386-11
A producer is liable as of right
unless he proves:
1° That he did not put the product into
circulation;
2° That, having regard to the circumstances, it is probable that
the defect which caused the damage did not exist at the time when
the product was put into circulation by him or that this defect
came into being afterwards;
3° That the product was not for the purpose of sale or of any
other form of distribution;
4° That the state of scientific and technical knowledge, at the
time when he put the product into circulation, was not such as to
enable the existence of the defect to be discovered;
or
5° That the defect is due to compliance with mandatory provisions
of statutes or regulations.
The producer of a component part is not liable either where he
proves that the defect is attributable to the design of the
product in which the component has been fitted or to the
directions given by the producer of that
product.
Art. 1386-12
A producer may not invoke the
exonerating circumstance provided for in Article 1386-11, 4°,
where damage was caused by an element of the human body or by
products thereof.
A
producer may not invoke the exonerating circumstance provided for
in Article 1386-11, 4° and 5°, where, faced with a defect which
has revealed itself within a period of ten years after the product
has been put into circulation, he did not take the appropriate
steps to avoid its damaging consequences.
Art. 1386-13
The liability of a producer may be
reduced or disallowed where, having regard to all the
circumstances, the damage is caused both by a defect in the
product and by the fault of the injured person or of a person for
whom the injured person is responsible.
Art. 1386-14
The liability of a producer towards an injured person shall not be
reduced where the act or omission of a third party contributed to
the production of the damage.
Art. 1386-15
The clauses which tend to exempt from
or to limit the liability for defective products are forbidden and
shall be deemed not written.
Nevertheless, as to damages caused to property not used by the
injured party mainly for his own private use or consumption, the
clauses stipulated between professionals are valid .
Art. 1386-16
Except for fault of the
producer, the liability of the latter, based on the provisions of
this Title, shall be extinguished on the expiry of a period of ten
years after the actual product which caused the damage was put
into circulation, unless the injured person has in the meantime
instituted proceedings.
Art. 1386-17
An action for the recovery of damages
based on the provisions of this Title is time-barred after a
period of three years from the date on which the plaintiff knew or
ought to have known the damage, the defect and the identity of the
producer.
Art. 1386-18
The provisions of this Title may not
affect any rights which an injured person may have according to
the rules of contractual or tort liability or of a special
liability system.
A producer remains liable for the consequences of his fault or for
that of the persons for whom he is responsible.
TITLE V
OF ANTE-NUPTIAL AGREEMENTS AND OF MATRIMONIAL
REGIMES
(Act n° 65-570 of 13 July
1965)
CHAPTER I -
GENERAL PROVISIONS
Art. 1387
Legislation regulates conjugal
association, with respect to property, only in default of special
agreements, which the spouses may enter into as they deem proper,
provided they are not contrary to public morals and to the
following provisions.
Art. 1388
Spouses may derogate neither to the
duties and rights which result for them from marriage, nor
to the rules of parental authority, statutory administration and
guardianship.
Art. 1389
Without prejudice to gratuitous
transfers which may take place according to the forms and in the
cases provided for by this Code, spouses may not make any
agreement or waiver whose object would be to change the statutory
order of successions.
Art. 1390
They may, however, stipulate that, at
the dissolution of the marriage by the death of one of them, the
survivor will have the power to acquire or, should the occasion
arise, to have allotted to him or her certain personal property of
the first to die, on condition that he or she accounts for it to
the succession, according to the value which they have on the day
when that power is exercised.
Art. 1391
An ante-nuptial agreement shall determine the property to which
the power granted to the survivor will relate. It may fix methods
of appraisal and terms of payment, except abatement in favour of
beneficiary heirs where there is an indirect
advantage.
Taking into account those clauses and failing an agreement between
the parties, the value of the property shall be fixed by the
tribunal de grande instance .
Art. 1392
The power granted to the survivor
lapses where he did not exercise it, by notice served upon the
heirs of the predeceased, within a period of one month after the
day when the latter gave him notice to come to a decision. That
notice may not take place before the expiry of the period provided
for in the Title Of Successions for making an inventory and
deliberating .
Where served within that period, the notice generates a sale on
the day when the power is exercised or, where appropriate,
constitutes a process of partition.
Art. 1393
Spouses may declare, in a general way,
that they intend to marry under one of the regimes provided for by
this Code.
In the absence of special stipulations derogating from the
community regime or modifying it, the rules established in the
first Part of Chapter II shall constitute the ordinary law of
France.
Art. 1394
All matrimonial agreements shall be
drawn up in an instrument before notaire, in the presence
and with the simultaneous consent of all the persons who are
parties thereto or of their agents.
At the time of the signature of the agreement, the notaire
shall deliver to the parties a certificate on unstamped paper
and without costs, stating his name and place of residence, the
names, first names, occupations and residences of the future
spouses, as well as the date of the ante-nuptial agreement . That
certificate shall state that it must be lodged with the officer of
civil status before the celebration of the marriage .
Where the record of marriage mentions that an ante-nuptial
agreement was not made, the spouses shall be, with regard to third
parties, deemed married under the regime of general law, unless,
in the transactions entered into with those third parties, they
have declared that they made an ante-nuptial agreement.
(Act n° 94-126 of 11 Feb. 1994) In addition, where one of
the spouses is a merchant at the time of the marriage or becomes
so later, the ante-nuptial agreement and its amendments shall be
given public notice, at his or her initiative and on his or her
own responsibility, subject to the conditions and under the
sanctions provided for by the provisions of statutes and
regulations relating to the register of trade and
companies.
Art. 1395
An ante-nuptial agreement must be
drawn up before the celebration of the marriage and may take
effect only on the day of that celebration.
Art. 1396
Amendments made in ante-nuptial
agreements before the celebration of the marriage must be
established by an instrument drawn up in the same forms.
Furthermore, no change or counter-letter is valid without the
presence and the simultaneous consent of all the persons who were
parties to the ante-nuptial agreement, or of their
agents.
Any amendments or counter-letters, even provided with the forms
prescribed by the preceding Article, shall be without effect with
respect to third parties, unless they were drawn up at the end of
the original of the ante-nuptial agreement; and a notaire
may deliver neither an executory nor an office copy of the
ante-nuptial agreement without transcribing the amendment or
counter-letter at the end.
After the celebration of the marriage, there may be no amendment
to the matrimonial regime except by the effect of a judgment,
either on the application of one of the spouses, in the case of
separation of property or of other judicial protective measures,
or on joint petition of both spouses, in the case of the following
Article.
Art. 1397
After two years of application of a
matrimonial regime, either conventional or statutory, the spouses
may agree in the interest of the family to amend it or even to
change it entirely, by a notarial instrument, which shall be
submitted to the approval of the court of their
domicile.
All persons who were parties to the modified agreement shall be
summoned in the proceedings in approval; but not their heirs, if
they have died.
An approved change has effect between the parties from the
judgment and, with regard to third parties, three months after
mention of it has been entered in the margin of both copies of the
record of marriage. However, even failing that mention, an
amendment is effective against third parties where, in the
transactions entered into with them, the spouses have declared
that they have amended their matrimonial regime;
Mention of the judgment of approval shall be made on the original
of the amended ante-nuptial agreement .
The application and the decision of approval shall be published on
the terms and subject to the penalties provided for in the Code of
Civil Procedure; furthermore, where one of the spouses is a
merchant, the decision shall be published on the terms and subject
to the penalties provided for by the regulations relating to the
commercial register.
Where there has been a fraud on their rights, creditors may resort
to a third party application for revocation of the judgment of
approval in the way provided for in the Code of Civil
Procedure.
Art. 1397-1
(Act n° 75-617 of 11 July 1975).-The
provisions of the preceding Article shall not apply to the
agreements entered into by spouses in the course of divorce
proceedings with the view of liquidating their matrimonial
regime.
Articles 1450 and 1451 shall apply to those
agreements.
Art. 1397-2
(Act n° 97-987 of 28 Oct.
1997)
Where spouses specify the law
applicable to their matrimonial regime under the Convention on the
law applicable to matrimonial regimes, made in The Hague on 14
March 1978, Articles 1397-3 and 1397-4 shall
apply.
Art. 1397-3
(Act n° 97-987 of 28 Oct.
1997)
Where the specification of the
applicable law is made before the marriage, the future spouses
shall present to the officer of civil status either the instrument
through which they have operated that specification, or a
certificate delivered by the competent person to establish that
instrument. A certificate shall state the names and first names of
the future spouses, the place where they are living, the date of
the instrument of specification, as well as the names,
qualifications and residence of the person who has established
it.
Where the specification of the applicable law is made in the
course of a marriage, the spouses shall have the measures or
public notice relating to the specification of the applicable law
made subject to the conditions and forms provided for in the new
Code of Civil Procedure.
On the occasion of the specification
of the applicable law, before the marriage or in its course, the
spouses may specify the nature of the matrimonial regime they
choose.
Where one of the spouses is a merchant at the time of the marriage
or becomes so afterwards, the instrument of specification of the
applicable law, drawn up before the marriage or in its course
shall be given public notice on the terms and subject to the
penalties provided for by the provisions relating to the register
of commerce and companies.
Art. 1397-4
(Act n° 97-987 of 28 Oct.
1997)
Where the specification of the
applicable law is made in the course of a marriage, that
specification takes effect between the parties from the
establishment of the instrument of specification and, with respect
to third parties, three months after the formalities of public
notice provided for in Article 1397-3 have been
fulfilled.
However, even failing fulfilment of those formalities, the
specification of the applicable law is effective against third
parties where, in the transactions entered into with them, the
spouses have declared which law is applicable to their
matrimonial regime.
Art. 1397-5
(Act n° 97-987 of 28 Oct.
1997)
Where a change in the matrimonial
regime takes place in accordance with a foreign law which governs
the effects of the marriage, the spouses shall have public notice
made as provided for in the new Code of Civil
Procedure.
Art. 1397-6
(Act n° 97-987 of 28 Oct.
1997)
A change of matrimonial regime takes
effect between the parties from the judgment
or
from the instrument which provides for it and, with respect to
third parties, three months after the formalities of notice
provided for in Article 1397-5 have been
fulfilled.
However, even failing fulfilment of those formalities, the change
of matrimonial regime is effective against third parties where, in
the transactions entered into with them, the spouses have declared
that they have amended their matrimonial regime.
Art. 1398
A minor having capacity to contract
marriage has capacity to consent to all the agreements of which
that contract is susceptible and the agreements and gifts he has
made therein are valid, provided he had, in making the agreement,
the assistance of all the persons whose consent is necessary for
the validity of the marriage.
Where matrimonial
conventions have been entered into without that assistance, the
annulment thereof may be sued for by the minor or by the persons
whose consent was required, but only up to the expiry of the year
following the coming of age.
Art. 1399
An adult in guardianship or
curatorship may not enter into matrimonial conventions unless
assisted, at the contract, by those who must consent to his
marriage.
Failing that assistance, annulment of the agreements may be sought
within the year of the marriage, either by the person under a
disability himself, or by those whose consent was required, or by
the guardian or the curator.
CHAPTER II – OF THE REGIME
OF COMMUNITY OF PROPERTY
PART I – OF
THE STATUTORY COMMUNITY OF PROPERTY
Art. 1400
Community of property which is
established failing an agreement or by a simple declaration of
being married under the community of property regime, is subject
to the rules explained in the following three
Sections.
Section I – Of What a Community is Composed as to
Assets and Liabilities
§ 1 - Of
the Assets of the Community
Art. 1401
The assets of
the community comprise acquisitions made by the spouses together
or separately during the marriage, and coming both from their
personal activity and from savings made on the fruits and incomes
of their personal property.
Art. 1402
Any property,
movable or immovable, shall be deemed an acquisition of the
community where it is not proved that it is a separate property of
one of the spouses in accordance with a provision of
law.
Where a property is one of those which do not display proof or
mark of their origin, personal ownership of a spouse, if disputed,
shall be established in writing. Failing an inventory or other
contemporaneously constituted proof, the judge may take into
consideration all writings, in particular family instruments of
title, registers and papers, as well as bank documents and
invoices. He may even admit testimonial or presumptive evidence,
where he observes that it was materially or morally impossible for
one spouse to obtain a writing.
Art. 1403
Each spouse
retains full ownership of his or her separate property.
The community is entitled only to fruits collected and not
consumed. But a reimbursement may be due to it, at the time of the
dissolution of the community, for fruits which a spouse failed to
collect or has fraudulently consumed, without, however, any
inquiry being admissible further than the last five
years.
Art. 1404
Constitute
separate property by their nature, even where they have been
acquired during the marriage, clothes and belongings for the
personal use of one of the spouses, actions for compensation for
bodily or moral harm, inalienable claims and pensions, and, more
generally, all property which has a personal character and all
rights exclusively attached to the person.
Constitute also separate property by their nature, but subject to
a reimbursement if there is occasion, implements necessary to the
occupation of one of the spouses, unless they are accessory to
business assets or to an enterprise forming part of the
community.
Art. 1405
Remain
separate property the items of property of which the spouses had
ownership or possession on the day of the celebration of the
marriage, or which they acquire, during the marriage, through
succession, gift or legacy.
A gratuitous transfer may stipulate that the property which is its
subject-matter will belong to the community. Property falls into
community, unless otherwise stipulated, where a gratuitous
transfer is made jointly to both spouses.
Property surrendered or transferred by the father, mother or other
ascendant to one of the spouses, either in order to discharge what
he owes to him or her, or under the obligation of paying debts of
the donor to outsiders, remain separate property, subject to
reimbursement.
Art. 1406
Constitute
separate property, subject to reimbursement if there is occasion,
property acquired as accessory to a separate property as well as
new securities and other increases connected with securities which
are separate property.
Constitute also separate property, through the effect of real
subrogation, claims and indemnities which take the place of
separate property, as well as property acquired in investment or
reinvestment, in accordance with Articles 1434 and
1435.
Art. 1407
Property acquired in exchange for a
property which belonged separately to one of the spouses is itself
separate property, subject to reimbursement due to the community
or by it, where there is a balance.
However, where the balance charged to the community is greater
than the value of the transferred property, the property acquired
in exchange falls into the common stock, subject to reimbursement
for the benefit of the transferor.
Art. 1408
An acquisition, made by auction or
otherwise, of a part of a property of which one of the spouses was
an undivided owner, does not constitute an acquisition, subject to
the reimbursement due to the community for the sum it may have
supplied.
§
2 - Of the Liabilities of the
Community
Art. 1409
(Act n° 85-1372 of 23 Dec.
1985)
The liabilities of the community
comprise:
- definitively,
maintenance due by the spouses and debts incurred by them for the
support of the household and the education of children, under
Article 220;
- definitively or
subject to reimbursement, according to the circumstances, other
debts arising during the community.
Art. 1410
Debts which the spouses owed on the
day of the celebration of the marriage, or with which the
successions and gratuitous transfers falling to them during the
marriage are burdened, remain personal to them, both as to capital
and to arrears or interest.
Art. 1411
In the case of the preceding Article,
creditors of either spouse may only enforce payment on the
separate property “and the income” (Act n° 85-1372 of 23 Dec.
1985) of their debtor.
They may also, however, seize property of the community where the
movables which belonged to their debtor on the day of the marriage
or which fell to him by succession or gratuitous transfer have
been merged into the common patrimony and can no longer be
identified under the rules of Article 1402.
Art. 1412
Reimbursement is due to the community
which has paid a personal debt of a spouse.
Art. 1413
(Act n° 85-1372 of 23 Dec. 1985).-Payment
of debts which either spouse owes, for whatever reason, during the
community, may always be enforced on community property, unless
there was fraud of the debtor spouse and bad faith of the
creditor, and subject to reimbursement due to the community, if
there is occasion.
Art. 1414
(Act n° 85-1372 of 23 Dec.
1985)
The earnings and wages of a spouse may
be attached by the creditors of his or her spouse only where the
obligation was contracted for the support of the household or the
education of children, under Article 220.
Where the earnings and wages are paid into a current or deposit
account, the latter may be attached only under the conditions
determined by decree.
Art. 1415
(Act n° 85-1372 of 23 Dec.
1985)
Each spouse may obligate only his
separate property and his income, by surety or loan, unless they
have been contracted with the express consent of the other spouse,
who, in that case, does not obligate his separate
property.
Art. 1416
A community which has discharged a
debt for which it may have been sued under the preceding Articles,
is nevertheless entitled to reimbursement, whenever that
undertaking had been contracted in the personal interest of one of
the spouses, for example for the acquisition, preservation or
improvement of a separate property.
Art. 1417
A community is entitled to
reimbursement, deduction being made, if there is occasion, of the
benefit derived for it, where it paid fines incurred by one spouse
by reasons of criminal offences, or damages and costs for which he
or she had been held liable in tort.
It is likewise entitled to reimbursement where the debt which it
discharged was contracted by one of the spouses in contempt of the
duties which the marriage prescribed to him or
her.
Art. 1418
Where a debt has become a community
debt in only one spouse’s right, it may not be enforced on the
separate property of the other.
Where it is joint and several, a debt is deemed to become a
community debt in both spouses’ right. [repealed]
Art. 1419 and 1420. [repealed]
Section II
– Of the Administration of the Community and of the
Separate Property
Art. 1421
(Act n° 85-1372 of 23 Dec.
1985)
Each spouse has the power to
administer alone the common property and to dispose of it, subject
to being accountable for faults committed in his or her
management. Transactions entered into without fraud by a spouse
are enforceable against the other.
A spouse who follows a separate profession, has alone the power to
perform acts of administration and disposition necessary for
it.
All of which is subject to Articles 1422 to
1425.
Art. 1422
(Act n° 85-1372 of 23 Dec.
1985)
One spouse may not, without the other,
dispose inter vivos, gratuitously, of the common
property.
Art. 1423
(Act n° 85-1372 of 23 Dec. 1985).-A
legacy made by one spouse may not exceed his or her share in the
community.
Where a spouse has bequeathed a property of the community, the
legatee may claim it in kind only if, by the effect of partition,
the property falls into the share of the testator’s heirs; if the
property does not fall into the share of those heirs, the legatee
is entitled to reimbursement of the total value of the property
bequeathed, on the share, in the community, of the heirs of the
testator spouse and on the separate property of the latter.
Art. 1424
(Act n° 85-1372 of 23 Dec.
1985)
One spouse may not, without the other, transfer or encumber with
rights in rem immovables, business assets and enterprises
depending on the community, or non-negotiable rights in a firm and
tangible movables whose alienation requires public notice. One
spouse may not, without the other, collect the capital coming from
those operations.
Art. 1425
(Act n° 85-1372 of 23 Dec.
1985)
One spouse may
not, without the other, give on lease a rural tenement or an
immovable for commercial, industrial or craft use depending on the
community. Other leases on common property may be entered into by
one spouse alone and are subject to the rules provided for
regarding leases made by a usufructuary.
Art. 1426
(Act n° 85-1372 of 23 Dec.
1985)
Where one of
the spouses is, in an enduring way, unable to express his or her
wish, or if his or her management of the community reveals
unfitness or fraud, the other spouse may request in court to be
substituted for him or her in the exercise of those powers. The
provisions of Articles 1445 to 1447 shall apply to that
request.
A spouse thus entitled by court has the same powers which the
spouse whom he or she replaces would have had; he or she may, with
the authorization of the court, enter into transactions for which
his or her consent would have been required if a substitution had
not taken place.
A spouse deprived of his or her powers may, later on, request
their restitution to the court, by establishing that their
transfer to the other spouse is no longer
justified.
Art. 1427
(Act n° 85-1372 of 23 Dec.
1985)
Where one of
the spouses has gone beyond his or her powers on common property,
the other may apply for annulment of it, unless he has ratified
the transaction.
An action for annulment may be brought by
the spouse during two years after the day when he had knowledge of
the transaction, without never being admissible more that two
years after the dissolution of the community.
Art. 1428
Each spouse
has the administration and enjoyment of his or her separate
property and may dispose of it freely.
Art.1429.
-Where one of the spouses is, in an
enduring way, unable to express his or her wish, or if he or she
imperils the interests of the family, either by allowing his or
her separate property to waste away or by dissipating or
embezzling the income withdrawn from them, he or she may, on
application of the other spouse, be divested of the rights of
administration and enjoyment attributed by the preceding Article.
The provisions of Article 1445 to 1447 shall apply to that
application.
Unless the appointment of a judicial administrator appears
necessary, the judgment shall grant to the plaintiff spouse the
power to administer the separate property of the divested spouse,
as well as to collect the fruits thereof, which shall be
appropriated to the marriage expenses and the excess used for the
benefit of the community.
From the application, the deprived spouse may dispose alone of the
bare ownership of his or her property only.
He or she may, later on, request the restitution of his or her
rights to the court, if he or she establishes that the causes
which had justified the divesting no longer exist.
Art. 1430 [repealed]
Art. 1431
Where, during
the marriage, one of the spouses grants to the other the
administration of his or her separate property, the rules of
agency shall apply. The agent spouse is, however, dispensed from
accounting for fruits, where the power of attorney does not
expressly so require.
Art. 1432
Where one of
the spouses takes in hand the management of the separate property
of the other, with the knowledge of the latter but nevertheless
without opposition on his or her part, there is deemed to be an
implied agency, with authority to make acts of administration and
enjoyment, but not acts of disposition.
That spouse shall be responsible for his or her management towards
the other as would an agent. However, he or she must account only
for existing fruits; as regards those which he or she failed to
collect or fraudulently consumed, he or she may be sued only
within a limitation of the last five years.
Where one of the spouses has interfered in the management of the
separate property of the other in contempt of an established
opposition, he or she is liable for all the results of his or her
interference and accountable without limitation for all the fruits
which he or she has collected, failed to collect or fraudulently
consumed.
Art. 1433
The community
owes reimbursement to the owner spouse whenever it has drawn
benefit from separate property.
It shall be so, notably, where it has collected funds which were
separate property or which came from the sale of a separate
property, without there having been made investment or
re-investment.
Where a controversy arises, proof that community drew benefit from
separate property may be adduced by any means, including testimony
and presumptions.
Art. 1434
Investment or
re-investment is deemed made with regard to a spouse, whenever, at
the time of an acquisition, it is declared that it was made from
separate funds, or from funds coming from the disposal of a
separate property, and in order to take its place as investment or
re-investment. Failing such declaration in the instrument,
investment or re-investment takes place only through agreement of
the spouses and produces effect only in their reciprocal
relationships.
[repealed]
Art. 1435
(Act n° 85-1372 of 23 Dec.
1985)
Where
investment or re-investment is made in anticipation, the property
acquired is separate, provided that the sums expected from the
separate patrimony be paid to the community within five years
after the date of the transaction.
Art. 1436
(Act n° 85-1372 of 23 Dec.
1985)
Where the
price and expenses of the acquisition exceed the sum from which
investment or re-investment was made, the community is entitled to
reimbursement for the excess. Where, however, the share of the
community is greater than that of the acquiring spouse, the
property acquired falls into community, subject to reimbursement
due to the spouse.
Art. 1437
Whenever a sum
is taken from the community, either to discharge the personal
debts or charges of one of the spouses, such as the price or part
of the price of a separate property of his or her own, or the
redemption of land services, or for the recovery, preservation or
improvement of his or her personal property, and generally
whenever one of the two spouses draws a personal profit from the
community property, he or she owes reimbursement
therefor.
Art. 1438
Where the
father and mother jointly make a gift in favour of a common child
without specifying the portion for which they intended to
contribute thereto, they are deemed to have contributed each for
one half, whether the gift was provided or promised from community
property, or whether from personal property of one of the
spouses.
In the second case, the spouse from whose personal property the
gift was made has, on the property of the other, an action for
compensation for half of the said gift, having regard to the value
of the property donated at the time of the gift.
Art. 1439
A gift made to
a common child from community property is charged to the
community.
(Act n° 85-1372 of 23 Dec. 1985) It is borne by each spouse
for one half on the dissolution of the community, unless one of
them, in making it, expressly declared that he or she would take
charge of it for the whole or for a share exceeding one
half.
Art. 1440
Warranty of
the gift is due from any person who made it; and interest runs as
from the day of the marriage, although there is a term for
the payment, unless otherwise stipulated.
Section III – Of the Dissolution of the
Community
§ 1 - Of
the Causes for Dissolution and of Separation of
Property
Art. 1441
A community is
dissolved:
1° By the death of one of the spouses;
2° “By declared absence” (Act n° 77-1447 of 28 Dec.
1977);
3° By divorce;
4° By judicial separation;
5° By separation of property;
6° By change of matrimonial regime.
Art. 1442
(Act n° 85-1372 of 23 Dec.
1985)
No continuance
of a community may take place, notwithstanding any agreement to
the contrary.
Either spouse may request, if there is occasion, that, in their
mutual relations, the effect of the dissolution be carried back to
the date when they ceased to live together and collaborate. The
one upon whom the wrongs of separation chiefly fall may not obtain
that carrying back .
Art. 1443
Where through the disorder of the
affairs, misadministration or misconduct of one spouse, it appears
that the upholding of the community imperils the interest of the
other spouse, the latter may sue in court for separation of
property.
Any voluntary separation is void.
Art. 1444
Separation of property, although
ordered in court, is void where the proceedings tending to
liquidate the rights of the parties have not be initiated within
three months after the judgment has become res judicata or where
the final settlement has not occurred within the year of the
opening of the process of liquidation. The period of one year may
be extended by the president of the court in the form of interim
relief proceedings.
Art. 1445
The application and judgment of
separation of property shall be given public notice on the terms
and subject to the penalties provided for by the Code of Civil
Procedure, as well as by the regulations relating to commerce
where one of the spouses is a merchant.
A judgment ordering a separation of property extends back as to
its effect to the day of the application.
Mention of the judgment shall be made in the margin of the record
of marriage as well as on the original of the ante-nuptial
agreement.
Art. 1446
Creditors of a spouse may not apply
for a separation of property in his or her right.
Art. 1447
Where an action for separation of
property has been brought, creditors may demand from the spouses,
by paper served in the courthouse, to have the application and
supporting documents communicated to them. They may even intervene
in the case for the preservation of their
rights.
Where separation has been ordered in fraud of their rights, they
may appeal against it by way of third party application for
revocation of judgment, under the conditions provided for in the
Code of Civil Procedure.
Art. 1448
The spouse who has obtained the
separation of property shall contribute, in proportion to his or
her means and to those of the other spouse, both to the household
expenses and to those relating to the education of
children.
He or she shall bear entirely those expenses, where nothing is
left to the other.
Art. 1449
A separation of property judicially
ordered has the effect of putting the spouses under the regime of
Articles 1536 and following.
(Act n° 85-1372 of 23 Dec. 1985) The court, where it
pronounces separation, may order that one of the spouses shall pay
his or her contribution into the hands of the other spouse, who
shall assume alone thenceforth with regard to third parties the
payment of all the liabilities of the marriage.
Art. 1450
(Act n° 75-617 of 11 July
1975)
During divorce proceedings, spouses
may enter into any agreements for the liquidation and partition of
the community.
Those agreements shall be made through a notarial instrument,
except in case of joint petition.
Art. 1451
(Act n° 75-617
of 11 July 1975)
The agreements thus entered into are suspended, with regard to
their effects, until the pronouncement of the divorce; they may be
enforced, even in the relations between spouses, only where the
judgment has gained force of res judicata.
One of the spouses may request that the judgment of divorce modify
the agreement where the consequences of divorce fixed by that
judgment call into question the bases of the liquidation and
partition.
Art. 1452 to 1466 [repealed]
§ 2 - Of
Liquidation and Partition of the Community
Art. 1467
After the dissolution of the
community, each spouse shall retake that of his or her property
which did not fall into the community, where it exists in kind, or
the property subrogated thereto.
Then shall take place the liquidation of the common stock, as to
assets and liabilities.
Art. 1468
Shall be established in the name of
each spouse an account of the reimbursement which the community
owes to him or her and of the reimbursement which he or she owes
to the community, in accordance with the rules prescribed in the
preceding Sections.
Art. 1469
Reimbursement shall be, in general,
equal to the smaller of the two sums which the expenditures made
and the profit still extant represent.
However, it may not be less than the expenditure made where the
latter was necessary.
(Act n° 85-1372 of 23 Dec. 1985) It may not be less than
the profit still extant where the value borrowed was used to
acquire, preserve or improve a property which is found, on the day
of the liquidation of the community, in the borrower patrimony.
Where the property acquired, preserved or improved has been
alienated before the liquidation, the profit shall be appraised on
the day of the alienation; where a new property has been
subrogated to the alienated property, the profit shall be
appraised with regard to that new property.
Art. 1470
Where, after the balance is made, the
account presents a residue in favour of the community, the spouse
shall return the amount thereof to the common stock.
Where it presents a residue in favour of a spouse, the latter has
the option either to require payment or to appropriate common
property up to the amount due.
Art. 1471
(Act n°
85-1372 of 23 Dec. 1985)
Appropriations shall be enforced first on ready money, next on the
movables and subsidiarily on the immovables of the community. A
spouse who makes the appropriation is entitled to choose the
movables and immovables which he or she appropriates. He or
she may not, however, prejudice by that option the rights
which the other spouse may have to request the continuation of the
undivided property or the preferential allotment of certain items
of property.
Where the spouses wish to appropriate the same property, one shall
proceed by drawing lots.
Art. 1472
(Act n°
85-1372 of 23 Dec. 1985)
In case the community is not adequate, the appropriations of each
spouse shall be in proportion to the amount of the reimbursement
which are due to him or her.
However, where the inadequacy of the community is imputable to the
fault of one of the spouses, the other spouse may make
appropriation before him or her on the whole of common property;
he or she may make them subsidiarily on the separate property of
the liable spouse.
Art.
1473
Reimbursement due by the community or to the community bears
interest by operation of law from the day of the
dissolution.
(Act n° 85-1372 of 23 Dec. 1985) However, where a
reimbursement is equal to the profit still extant, interest runs
from the day of liquidation.
Art. 1474
Appropriations in common property
constitute an operation of partition. They do not confer on the
spouse who enforces them any right to be preferred to the
creditors of the community, except the priority resulting from
legal mortgage, where there is occasion.
Art. 1475
After all appropriations have been
carried out on the stock, the excess shall be divided by halves
between the spouses.
Where an immovable of the community is an annex of another
immovable belonging separately to one of the spouses, or where it
is contiguous to that building, the owner spouse has the power to
have it allotted to him or her by deduction from his or her share
or subject to a balance, according to the value of the property on
the day when allotment is requested.
Art. 1476
Partition of a community, as to
everything relating to its forms, continuation of undivided
ownership and preferential allotment, auction of property, effects
of partition, warranty and balances is subject to all the rules
established in the Title Of Successions with respect to
partitions between coheirs.
However, as to communities dissolved by divorce, judicial
separation or separation of property, preferential allotment is
never as of right, and it may always be ordered that the whole of
a balance which may be due shall be payable cash.
Art. 1477
The spouse who has diverted or
concealed any articles of the community, shall be deprived of his
or her share in said articles.
Art. 1478
After a partition is closed, where one of the spouses is the
personal creditor of the other, for instance because the proceeds
of his or her property have been used to pay a personal debt of
the other spouse, or for any other cause, he or she may enforce
the claim against the share of the community coming to the other
or against the other’s separate property.
Art. 1479
The personal claims which the spouses
have to enforce against each other do not give rise to
appropriation and bear interest only from the day of the
demand.
(Act n° 85-1372 of 23 Dec. 1985) Unless otherwise agreed by
the parties, they shall be appraised according to the rules of
Article 1469, paragraph 3, in the cases for which it provides;
interest then runs from the day of the liquidation.
Art. 1480
Gifts which one of the spouses may
have made to the other shall be enforced only on the share of the
donor in the community and on his or her separate
property.
Art. 1481 [repealed]
§ 3 -
Obligation and of Contribution to Liabilities after
Dissolution
Art. 1482
(Act n° 85-1372 of 23 Dec.
1985)
Each spouse may be sued for the whole
of the debts existing on the day of dissolution, which had entered
into the community in his or her own right.
Art. 1483
Each spouse may be sued only for half
of the debts which had entered into the community in the other
spouse’s right.
(Act n° 85-1372 of 23 Dec. 1985) After partition, and save
the case of concealment, he or she is liable for them only up to
the share of the assets which he or she receives, provided there
was an inventory, and under the obligation to account both for the
contents of that inventory and for what he or she has received
through the partition, as well as for the common liabilities
already discharged.
Art. 1484
The inventory provided for in the
preceding Article shall be made in the forms regulated by the Code
of Civil Procedure, adversarily with the other spouse or the
latter having been duly summoned. It shall be closed within nine
months after the day when the community was dissolved, except for
extension of time granted by an interim relief judge. It shall be
asserted genuine and true before the public officer who received
it.
Art. 1485
Each spouse shall contribute by halves
to the community debts for which a reimbursement was not due, as
well as to the costs of sealing, inventory, sale of movables,
liquidation, auction and partition.
He or she bears alone the debts which had become common only
subject to reimbursement chargeable to him or
her.
Art. 1486
The spouse who may take advantage of
the benefit of Article 1483, paragraph 2, does not contribute for
more than the share of the assets which he or she receives to the
debts which had entered into the community in the other spouse’s
right, unless it is a question of debts for which he or she owed
reimbursement.
Art. 1487
The spouse who paid above the portion
for which he or she was liable under the preceding Articles has a
remedy for the excess against the other.
Art. 1488
He or she has not, for that excess,
any recovery against the creditor, unless the receipt states that
he or she intends to pay only within the limit of his or her
obligation.
Art. 1489
The spouse who, by the effect of a
mortgage enforced on an immovable which he received in partition,
is sued for the whole of a community debt has as of right a remedy
against the other for half of that debt.
Art. 1490
The provisions of the preceding
Articles are not a bar to a clause of the partition which, without
prejudicing the rights of third parties, obliges either spouse to
pay a portion of the debts other than that which is fixed above,
or even to discharge the liabilities in full.
Art. 1491.
-The heirs of the spouses exercise, in case of
dissolution of the community, the same rights as the spouse whom
they represent and are subject to the same obligations.
[repealed]
Art. 1492 to 1496
[repealed]
PART II – OF
CONVENTIONAL COMMUNITY
Art. 1497
Spouses may,
in their ante-nuptial agreement, modify statutory community by any
kinds of agreement not contrary to Article 1387, 1388 and
1389.
They may, especially, agree:
1° That the community shall include movables and
acquisitions;
2° That it will be derogated to the rules relating to
administration;
3° That one of the spouse will have the power to appropriate
certain property on condition of an indemnity;
4° That one of the spouses will have an appropriation
clause;
5° That the spouses will have unequal shares;
6° That there will be a universal community between
them.
The rules on statutory community shall remain applicable on all
questions which have not been the subject of the agreement of the
parties.
Section I – Of the
Community of Movables and Acquisitions
Art. 1498
Where spouses
agree that there will be between them a community of movables and
acquisitions, the common assets comprise, in addition to property
which would form part of it under the regime of statutory
community, the movable property of which the spouses had ownership
or possession on the day of the marriage or which has fallen to
them afterwards through succession or gratuitous transfer, unless
the donor or testator has stipulated the contrary.
Remains separate property, nevertheless, that of the movable
property which would have formed separate property by its nature
by virtue of Article 1404, under the statutory regime, if it had
been acquired during the community.
Where one of the spouses acquires an immovable after the
ante-nuptial agreement, which contained a stipulation of
community of movables and acquisitions, and before the celebration
of the marriage, the immovable acquired during that interval
enters the community, unless the acquisition was made in
performance of some clause of the ante-nuptial agreement, in which
case it is regulated according to the agreement.
Art. 1499
Form part of
the liabilities of the community, under that regime, other than
the debts which would form part of it under the statutory regime,
a fraction of those with which the spouses were already burdened
when they married, or with which successions and gratuitous
transfer which fall to them during the marriage are
burdened.
The fraction of liabilities which the community bears is
proportionate to the fraction of assets which it receives,
according to the rules of the preceding Article, either from the
patrimony of the spouse on the day of the marriage, or from the
whole of property which is the subject of the succession or
gratuitous transfer.
In order to establish that proportion, the consistency and value
of the assets shall be proved in accordance with Article
1402.
Art. 1500
The debts to
which the community is liable, as a counterpart of the property it
receives, are its final responsibility.
Art. 1501
The
apportionment of liabilities prior to the marriage or burdening
successions and gratuitous transfers may not prejudice the
creditors. They keep, in all cases, the right to seize property
which previously constituted their security. They may even enforce
their payment against the whole of the community, where the
movable property of their debtor has been merged into the common
patrimony and may no longer be identified under the rules of
Article 1402.
Art. 1502
[repealed]
Section
II – Of the Clause of Joint
Administration
Art. 1503
(Act n° 85-1372 of 23 Dec.
1985)
Spouses may agree that they will
administer jointly the community.
In that case, the acts of administration and of disposition of
community property shall be made under the joint signature of both
spouses, and they involve as of right joint and several liability
of the spouses.
Acts of preservation may be done separately by each
spouse.
Art. 1504 to 1510
[repealed by
implication]
Section III –
Of the Clause of Appropriation on Condition of
Indemnity
Art. 1511
Spouses may stipulate that the
survivor or one of them if he or she survives, or even one of them
in all the cases of dissolution of the community, will have the
power to appropriate certain common property, with the
responsibility of accounting for it to the community according to
the value it has on the day of partition, unless otherwise agreed.
Art. 1512
An ante-nuptial agreement may fix the
bases of appraisal and the terms of payment of a possible balance.
Having regard to those clauses and failing an agreement between
the parties, the value of that property shall be fixed by the
tribunal de grande instance.
Art. 1513
A power of appropriation lapses where
the benefiting spouse does not exercise it by notice served upon
the other spouse or his or her heirs within a period of one month
after the day when the latter have served upon him or her notice
to come to a decision. That notice may not itself be served before
the expiry of the period provided for in the Title Of
Successions for making an inventory and deliberating.
Art. 1514
Appropriation is an operation of
partition: property appropriated is deduced from the share of the
benefiting spouse; where its value exceeds that share, there is
occasion for payment of a balance.
Spouses may agree that the indemnity owed by the maker of an
appropriation will be deduced subsidiarily from his or her rights
in the succession of the predeceased spouse.
Section IV – Of
the Appropriation Clause
Art. 1515
It may be agreed in an ante-nuptial
agreement, that the survivor of the spouses, or one of them if he
or she survives, will be authorized to appropriate from the common
stock, before any partition, either a specified sum, or a
specified property in kind, or a specified quantity of a
determined kind of property.
Art. 1516
Appropriation is not considered as a
gift, either as to substance, or as to form, but as a agreement
relating to marriage and between partners.
Art. 1517 [repealed]
Art. 1518
(Act n° 85-1372 of 23 Dec.
1985)
Where community is dissolved in the
lifetime of the spouses, there is no occasion for the making of an
appropriation; but the spouse, to whose benefit it was stipulated,
keeps his or her right for the case of survival, unless
matrimonial advantages have been lost as of right or revoked
following a divorce or judicial separation order, without
prejudice to the application of Article 268. He or she may require
surety from the other spouse in warranty of those rights.
Art. 1519
Creditors of the community are always entitled to have the
articles appropriated sold, subject to the remedy of the spouse
against the remainder of the community.
Section V – Of
the Stipulation of Unequal Shares
Art. 1520
Spouses may derogate from the
partition established by law.
Art. 1521
Where it has been stipulated that a
spouse and his or her heirs will have only a certain share in the
community, such as a third or a fourth, the spouse thus limited or
his or her heirs are liable for the debts of the community only in
proportion to the share which they take from the
assets.
The agreement is void where it compels the spouse thus limited or
his or her heirs to bear a larger part, or where it exempts them
from bearing a share of the debts equal to that which they take
from the assets.
Art. 1522 and 1523
[repealed]
Art. 1524
Allotment of the entire community may
be agreed only for the case of survival, either for the benefit of
a specified spouse, or for the benefit of whoever survives. The
spouse who thus retains the whole of the community is obliged to
pay all its debts.
It may also be agreed, for the case of survival, that one of the
spouses will have, in addition to his or her half, the usufruct of
the predeceased’s share. In that case, he or she shall contribute
to the debts, as to the usufruct, according to the rules of
Article 612.
The provisions of Article 1518 shall apply to those clauses when
the community is dissolved in the lifetime of the two
spouses.
Art. 1525
A stipulation of unequal shares and a
clause of full allotment are not deemed a gift, neither as to
substance nor as to form, but simply agreements relating to
marriage and between partners.
Unless otherwise stipulated, they may not prevent the heirs of the
predeceased spouse to take back the contributions and capital
having fallen into the community in the right of their
predecessor in title.
Section
VI – Of Universal Community
Art. 1526
Spouses may by their ante-nuptial
agreement establish a universal community of their property,
movable and immovable, present and future. However, unless
otherwise stipulated, property which Article 1404 declares
separate by its nature does no fall into that community.
A universal community bears definitively all the debts of the
spouses, present and future.
PROVISIONS COMMON TO THE TWO PARTS OF CHAPTER
II
Art. 1527
The advantages which either spouse may draw from the clauses of a
conventional community, as well as those which may result from a
mingling of movables or of debts, are not deemed gifts.
(Act n° 2001-1135 of 3 Dec. 2001) However, in the case
where there are children who are not born of the two spouses, any
agreement having the consequence of donating to one of the spouses
beyond the portion regulated by Article 1094-1, in the Title Of
Gifts Inter Vivos and of Wills is ineffective as to the whole
excess; but mere gains resulting from common business and from
savings made out of the respective although unequal incomes of
both spouses are not considered as an advantage made to the
prejudice of the children of another bed.
Art. 1528 to 1535
[repealed]
CHAPTER III - OF
THE REGIME OF SEPARATE PROPERTY
Art. 1536
Where spouses have stipulated in their
ante-nuptial agreement that their property will be separate, each
of them keeps the administration, enjoyment and free disposal of
his or her personal property.
Each remains alone liable for the debts arising in his or her
self, before or during marriage, except in the case of
Article 220.
Art. 1537
The spouses shall contribute to the
expenses of the marriage in accordance with the terms of their
agreement; and where none exists in this regard, in the proportion
determined by Article 214.
Art. 1538
With respect both to the other spouse
and to third parties, a spouse may prove by any means that he or
she has the exclusive ownership of a property.
The presumptions of ownership established in the ante-nuptial
agreement are effective with respect to third parties, as well as
in the relations between spouses, unless otherwise agreed. Counter
proof is as of right, and may be made by any means appropriate to
establish that the property does not belong to the spouse
designated by the presumption, or even, where it belongs to him or
her, that it was acquired through a gratuitous transfer from the
other spouse.
Property on which neither spouse may establish an exclusive
ownership is deemed to belong to them in undivided ownership, to
each by half.
Art. 1539
Where, during the marriage, one of the
spouses entrusts to the other the administration of his personal
property, the rules of agency shall apply. The agent spouse is
however exempted from accounting for the fruits, if the power of
attorney does not expressly oblige him or her to do so.
Art. 1540.-Where one of the spouses takes the
management of the other’s business in hand, with the knowledge of
the latter and nevertheless without opposition on his or her part,
she or he is deemed to have an implied agency, with authority to
make acts of administration and enjoyment, but not acts of
disposition.
That spouse is responsible for his or her management to the other
as an agent. However, he or she is accountable only for the
existing fruits; as regards those which he has failed to collect
or fraudulently consumed, he may be sued only within the limit of
the last five years.
Where one of the spouses has interfered in the management of the
other’s property in contempt of an established opposition, he or
she is responsible for all the consequences of that interference,
and accountable without limitation for all the fruits which he or
she has collected, failed to collect or fraudulently
consumed.
Art. 1541
One of the spouses is not the
warrantor of a failure to invest or reinvest the other’s property,
unless he or she has interfered in operations of alienation or
collection or unless it is proved that the funds were received by
him or her, or he or she has profited by them.
Art. 1542
(Act n° 75-617 of 11 July
1975)
After dissolution of a marriage by the
death of one of the spouses, the partition of the undivided
property between spouses with separate property, as to all that
relates to its forms, maintenance of undivided ownership and
preferential allotment, auction of property, effects of partition,
warranty and balances, is subject to all the rules which are
established in the Title Of Successions for partitions
between co-heirs.
The same rules shall apply after divorce or judicial separation.
However, preferential allotment shall never be as of right. It may
always be decided that the whole of a balance which may be owed
shall be payable cash.
Art. 1543
(Act n° 85-1372 of 23 Dec.
1985)
The rules of Article 1479 shall apply
to the claims which one spouse may have to enforce against the
other.
Art. 1544 to 1568
[repealed]
CHAPTER IV – OF
THE REGIME OF PARTICIPATION IN ACQUISITIONS
Art. 1569
Where the spouses have declared that
they married under the regime of participation in acquisitions,
each of them keeps the administration, enjoyment and free disposal
of his or her personal property, without distinguishing between
that which belonged to him or her on the day of the marriage or
which has come to him or her after by succession or gratuitous
transfer and that which he or she has acquired for value during
the marriage. During the marriage, that regime operates as if the
spouses were married under the regime of separation of property.
At the dissolution of the regime, each spouse is entitled to
participate by halves in value in the net acquisitions found in
the patrimony of the other, and estimated owing to the double
appraisal of the original patrimony and of the final
patrimony.
The right to participate in the acquisitions may not be assigned
as long as the matrimonial regime is not dissolved. Where
dissolution occurs through the death of one spouse, his or her
heirs have, on the net acquisitions made by the other, the same
rights as their predecessor in title.
Art. 1570
(Act n° 85-1372 of 23 Dec.
1985)
An original patrimony includes the
property which belonged to the spouse on the day of the marriage
and those which he or she has acquired afterwards by succession or
gratuitous transfer, as well as all property which, in the regime
of community, constitutes separate property by its nature without
giving rise to reimbursement. Account shall not be taken of the
fruits of that property nor of the parts of that property which
would have been in the nature of fruit or of which the spouse has
disposed through gift inter vivos during the
marriage.
The composition of the original patrimony shall be proved by a
descriptive statement, even under private signature, established
in the presence of the other spouse and signed by him or her.
Failing a descriptive statement, or where it is incomplete, proof
of the composition of the original patrimony may be adduced only
through the means of Article 1402.
Art. 1571
(Act n° 85-1372 of 23 Dec.
1985)
Original property shall be appraised
according to its condition on the day of the marriage or of the
acquisition and according to its value on the day when the
matrimonial regime is liquidated. Where it has been alienated, one
shall retain its value on the day of the alienation. Where new
property has been subrogated to property alienated, one shall take
into consideration the value of that new
property.
From the original assets shall be deducted the debts with which
they were burdened, re-evaluated, if there is occasion, according
to the rules of Article 1469, paragraph 3. Where the liabilities
exceed the assets, that excess shall be fictitiously united to the
final patrimony.
Art. 1572
Form part of the final patrimony all
the property which belongs to a spouse on the day when the
matrimonial regime is dissolved, including, where
appropriate, that of which he or she may have disposed of mortis
causa and without excluding the sums of which he or she may be
creditor against the other spouse. Where there is a divorce,
judicial separation or anticipated liquidation of the
acquisitions, the matrimonial regime is deemed dissolved on the
day of the application.
The composition of the final patrimony shall be proved by a
descriptive statement, even under private signature, which a
spouse or his or her heirs must establish in the presence of the
other spouse or of his or her heirs, or they having been duly
summoned. That statement shall be drawn up within nine months
after the dissolution of the matrimonial regime, except for
extension of time granted by the president of the court in the
form of interim relief proceedings.
Proof that the final patrimony would have included other property
may be adduced by any means, even by testimony and presumptions.
Each spouse may, as to the property of the other, require the
fixing of seals and an inventory in accordance with the rules
provided for in the Code of Civil Procedure.
Art. 1573
(Act n° 85-1372 of 23 Dec.
1985)
To the
existing property shall be fictitiously joined the property which
is not included in the original patrimony and of which a spouse
has disposed by gift inter vivos without the consent of the other
spouse, as well as that which he or she has fraudulently
alienated. An alienation on
condition of a life
annuity or non-repayable shall be presumed to have been made in
fraud of the spouse’s rights, unless the latter
agreed.
Art. 1574
(Act n° 85-1372 of 23 Dec.
1985)
Existing property shall be appraised according to its condition at
the time of the dissolution of the matrimonial regime and to its
value on the day of the liquidation of the latter. Property
alienated by gifts inter vivos, or in fraud of the rights of the
other spouse shall be appraised according to its condition on the
day of the alienation and to the value which it would have had, if
it had been kept, on the day of the liquidation.
From the assets thus replenished shall be deducted all the debts
which are not yet discharged, including the sums which may be owed
to the other spouse.
The value, on the day of alienation, of the improvements brought
about during the marriage in an original property donated by
one spouse without the consent of the other before the dissolution
of the matrimonial regime shall be added to the final patrimony.
Art. 1575
Where the final patrimony of a spouse
is less than his or her original patrimony, the deficit is borne
entirely by that spouse. Where it is greater, the increase
constitutes the net acquisitions and gives rise to participation.
Where there are net acquisitions on both sides, they shall first
be set off. Only the excess shall be partitioned: the spouse whose
gain is the lesser is creditor with regard to the other spouse for
half of that excess.
To a claim for participation, one shall add, in order to put them
under the same settlement, the sums of which a spouse may in other
respects be creditor towards the other, for values provided during
the marriage and other indemnities, deduction being made,
where necessary, of what that spouse may be debtor towards the
other.
Art. 1576
A claim for participation gives rise
to payment in money. Where a debtor spouse meets serious
difficulties in making it entirely as soon as the liquidation is
closed, the judges may grant him or her a time which may not
exceed five years, subject to the condition of giving security and
paying interest.
A claim for participation may however give rise to a settlement in
kind, either by consent of both spouses, or under an order of the
judge where the debtor spouse proves serious difficulties which
prevent him or her from discharging it in money.
The settlement in kind provided for in the preceding paragraph is
considered as an operation of partition where the property
allotted was not included in the original patrimony or where the
allottee spouse shares in the succession of the other.
The liquidation is not effective against creditors of the spouses:
they retain the right to seize property allotted to the spouse of
their debtor.
Art. 1577
(Act n° 85-1372 of 23 Dec.
1985)
A creditor spouse shall enforce
payment of his or her claim for participation first on existing
property and subsidiarily, beginning with the most recent
alienations, on the property mentioned in Article 1573 which had
been alienated by gifts inter vivos or in fraud of the rights of
the other spouse.
Art. 1578
Upon dissolution of the matrimonial
regime, where the parties do not agree to proceed to liquidation
through agreement, one of them may apply to the court for having
it proceeded to in court.
The rules prescribed for reaching a judicial partition of
successions and communities shall apply to that application, as
may be thought proper.
The parties shall communicate reciprocally to each other and shall
communicate to the experts designated by the judge, all
information and documents appropriate to the liquidation.
A claim for liquidation is time-barred after three years from the
dissolution of the matrimonial regime. Claims lying against third
parties “under Article 1167” (Act n° 85-1372 of 23 Dec.
1985) are time- barred after two years from the close of the
liquidation.
Art. 1579
Where application of the rules of
appraisal provided for by Articles 1571 and 1574 above would lead
to a result obviously contrary to equity, the court may derogate
from them on the application of one of the spouses.
Art. 1580
Where the disorder of the affairs,
misadministration or misconduct of one spouse, give rise to
fearing that the continuance of the matrimonial regime
imperils the interest of the other, the latter may apply for the
anticipated liquidation of his or her claim for participation.
The rules of separation of property shall apply to that
application.
Where the application is entertained, the spouses shall be placed
under the system of articles 1536 to 1541.
Art. 1581
When stipulating participation in
acquisitions, the spouses may adopt any term not contrary to
Articles 1387, 1388 and 1389.
They may in particular agree on a clause of unequal partition, or
stipulate that the survivor of them or one of them if he or she
survives, will be entitled to the whole of the net acquisitions
made by the other.
It may also be agreed between the spouses that the one who, at the
time of the dissolution of the regime, has against the other a
claim for participation, may demand the giving in payment of
certain property of the other spouse, if he or she establishes an
essential interest in having it attributed to him or her.
TITLE VI
OF SALES
CHAPTER I - OF
THE NATURE AND FORM OF SALES
Art. 1582
A sale is an agreement by which one
person binds himself to deliver a thing, and another to pay for
it.
It may be made by an authentic instrument or by an instrument
under private signature.
Art. 1583
It is complete between the parties,
and ownership is acquired as of right by the buyer with respect to
the seller, as soon as the thing and the price have been agreed
upon, although the thing has not yet been delivered or the price
paid.
Art. 1584
A sale may be made outright or subject
to a condition either precedent or subsequent.
It may also have as its object two or more alternative things.
In all these cases, its effect is regulated by the general
principles relating to agreements.
Art. 1585
Where goods are not sold in bulk but
by weight, number or measure, a sale is not complete, in that the
things sold are at the risk of the seller until they have been
weighed, counted or measured; but the buyer may claim either the
delivery or damages, if there is occasion, in case of
non-performance of the undertaking.
Art. 1586
Where, on the contrary, the goods have
been sold in bulk, the sale is complete although the goods have
not yet been weighed, counted or measured.
Art. 1587
With respect to wine, oil and other
things which it is customary to taste before buying them, there is
no sale so long as the buyer has not tasted and accepted them.
Art. 1588
A sale made upon trial shall always be
deemed made under a condition precedent.
Art. 1589
A promise of sale is the same as a
sale, where there is reciprocal consent of both parties as to the
thing and the price.
(Act of 30 July 1930) Where that promise relates to plots
already in lots or to be in lots, its acceptance and the agreement
that will result therefrom shall be established by the payment of
an instalment on the price, whatever the name given to that
instalment may be, and by the vesting with possession of the
plot.
The date of the agreement, even put into legal form afterwards, is
that of the payment of the first instalment.
Art. 1589-1
(Act n° 2000-1208 of 13 Dec.
2000)
Is rendered void any unilateral
undertaking entered into for the purpose of acquiring an immovable
property or right for which a payment is required or received from
the person who binds himself, whatever the cause and the
form thereof may be.
Art. 1590
Where a promise to sell was made with
an earnest, each contracting party is at liberty to
withdraw.
The one who has given it, by losing it.
And the one who has received it, by returning twice the amount.
Art. 1591
The price of a sale must be determined
and stated by the parties.
Art. 1592
It may however left to the estimation
of a third person; where that person is unwilling or unable to
make an estimate, there is no sale.
Art. 1593
The costs of instruments and other
accessory to a sale shall be charged to the buyer.
CHAPTER II - OF
THOSE WHO MAY BUY OR SELL
Art. 1594
All those to whom legislation does not
forbid to do so may buy or sell.
Art. 1595 [repealed]
Art. 1596
May not, either by themselves or
through intermediaries, become purchasers, on pain of annulment:
Guardians, as to the property of those under their
guardianship;
Agents, as to the property which they have charge of
selling;
Administrators, as to that of the communes or public
institutions entrusted to their care;
Public officers, as to national property whose sale is made
through their duties.
Art. 1597
Judges, [repealed by
implication], members of the judiciary acting as Government
procurators, registrars, bailiffs, avoués, counsels,
advocates and notaires may not become assignees of suits,
contested rights and actions which are within the jurisdiction of
the court in the territory within which they exercise their
duties, on pain of annulment, and of costs and damages.
CHAPTER III -
OF THINGS WHICH MAY BE SOLD
Art. 1598
Everything which may be the subject of
legal transactions between private individuals may be sold, where
special statutes do not prohibit their alienation.
Art. 1599
The sale of a thing belonging to
another is void: it may give rise to damages where the buyer did
not know that the thing belonged to another.
Art. 1600 [repealed]
Art. 1601
Where, at the time of the sale, the
thing sold has wholly perished, the sale is void.
Where only a part of the thing has perished, the buyer has the
choice to waive the sale or to claim the part saved, by having the
price determined proportionally.
CHAPTER III-1 -
OF THE SALES OF BUILDINGS TO BE ERECTED
(Act n° 67-3 of 3 Jan. 1967)
Art. 1601-1
The sale of a building to be erected
is that by which the seller binds himself to erect a building
within a period determined by the contract.
It may be concluded for future delivery or in a future state of
completion.
Art. 1601-2
A sale for future delivery is the
contract by which the seller undertakes to deliver the building on
its completion, and the buyer undertakes to take delivery of it
and to pay the price of it at the date of delivery. The transfer
of ownership is achieved by operation of law by the
acknowledgement of the completion of the building through an
authentic instrument; it is effective retroactively on the day of
the sale.
Art. 1601-3
A sale in a future state of completion
is the contract by which a seller transfers at once to the buyer
his rights in the ground as well as the ownership of the existing
structures. The works to come become the property of the
buyer as they proceed; the buyer is bound to pay the price of them
as the work proceeds.
The seller keeps the powers of a building owner until approval of
the work.
Art. 1601-4
An assignment by a purchaser of the
rights arising from a sale of a building to be erected substitutes
by operation of law the assignee in the obligations of the buyer
towards the seller.
Where the sale was united with an agency, the latter continues
between the seller and the assignee.
Those provisions shall apply to any transfer inter vivos,
voluntary or compulsory, or by reason of death.
CHAPTER IV -
OF THE OBLIGATIONS OF THE SELLER
Section I – General
Provisions
Art. 1602
The seller is obliged to explain
clearly what he binds himself to.
Any obscure or ambiguous agreement shall be interpreted against
the seller.
Art. 1603
He has two main obligations, that to
deliver and that to warrant the thing which he sells.
Section II - Of
Delivery
Art. 1604
Delivery is the transfer of the thing
sold into the power and possession of the buyer.
Art. 1605
The obligation to deliver immovables
is fulfilled on the part of the seller where he has handed over
the keys, in case of a building, or where he has handed over the
instruments of title.
Art. 1606
Delivery of movable effects is the
outcome :
Either of a real delivery;
Or of the handing over of the keys of the buildings which contain
them;
Or even of the sole consent of the parties, where the transfer
cannot take place at the time of the sale, or where the buyer
already had them in his power on another basis.
Art. 1607
Delivery of intangible rights is made
either by handing over the instruments of title, or by the use
which the purchaser makes of them with the consent of the seller.
Art. 1608
The expenses of delivery shall be
charged to the seller, and those of removal to the buyer, unless
otherwise agreed.
Art. 1609
Delivery shall be made at the place
where the thing sold was at the time of the sale, unless otherwise
agreed.
Art. 1610
Where the seller fails to make
delivery within the time agreed upon between the parties, the
purchaser may, at his choice, apply for avoidance of the sale, or
for his being vested with possession, if the delay results only
from an act of the seller.
Art. 1611
In all cases, the seller shall be ordered to pay damages, where
the purchaser has suffered a loss because of the failure to
deliver at the agreed time .
Art. 1612
The seller is not obliged to deliver
the thing where the buyer does not pay the price of it unless the
seller has granted him time for the payment.
Art. 1613
Nor is he obliged to deliver, even if
he has allowed time for the payment, where, since the sale, the
buyer [is under a judicial arrangement] or insolvent, so that the
seller is in imminent danger of losing the price; unless the buyer
gives him security to pay at the time-limit.
Art. 1614
The thing must be delivered in the
condition in which it is at the time of the
sale.
From that day, all the fruits belong to the
purchaser.
Art. 1615
The obligation to deliver the thing includes its accessories and
all that was designed for its perpetual use.
Art. 1616
The seller is obliged to deliver the
capacity such as it is specified in the contract, subject to the
modifications hereinafter expressed.
Art. 1617
Where the sale of an immovable was
made with indication of the capacity, at the rate of so much for a
measure, the seller is obliged to deliver to the purchaser, if the
latter so requires, the quantity stated in the
contract;
And if he cannot do so, or if the purchaser does not so require,
the seller is obliged to suffer a proportionate reduction in
price.
Art. 1618
Where, on the contrary, in the case or
the preceding Article, the capacity is greater than the one stated
in the contract, the purchaser has the choice to provide the
surplus of the price, or to repudiate the contract, if the excess
is one-twentieth above the capacity declared.
Art. 1619
In all other cases,
Whether the sale is made of a definite and limited thing,
Whether it has as its object distinct and separate
tenements,
Whether it begins with the measure, or by the designation of the
property sold followed by the measure,
The expression of that measure does not give rise to any increase
of price, in favour of the seller for the excess of measure, or in
favour of the purchaser, to any diminution in price for lesser
measure, unless the difference between the actual measure and the
one expressed in the contract is of one-twentieth more or less,
with regard to the value of all the things sold, unless otherwise
stipulated.
Art. 1620
In the case where, under the preceding
Article, it is necessary to raise the price for excess of measure,
the purchaser has the choice either to repudiate the contract or
to provide the surplus of the price, with interest if he has kept
the immovable.
Art. 1621
In all cases in which the purchaser is
entitled to repudiate the contract, the seller is bound to return
to him, besides the price, if he has received it, the costs of the
contract.
Art. 1622
An action for an increase of price, on
the part of the seller, and that for a diminution in price or for
termination of the contract, on the part of the buyer, must be
brought within the year, after the day of the contract, on pain of
lapse.
Art. 1623
Where two tenements have been sold by
the same contract for one and the same price, with the designation
of the measures of each of them, and where there is less capacity
in the one, and more in the other, set-off is made up to the
amount due; and an action, either for an increase, or for a
diminution in price, takes place only in accordance with the rules
above laid down.
Art. 1624
The question of ascertaining upon
whom, between the seller and the purchaser, falls the loss or
deterioration of the thing sold before its delivery, shall be
decided according to the rules prescribed in the Title Of
Contracts or of Conventional Obligations in General.
Section III - Of Warranty
Art. 1625
The warranty which the seller owes to
the purchaser has two objects: the first is the peaceful
possession of the thing sold; the second, the latent defects of
that thing, or redhibitory vices.
§ 1 -
Of Warranty against Dispossession
Art. 1626
Although no stipulation as to warranty
has been made at the time of the sale, the seller is obliged as of
right to warrant the purchaser against a dispossession of the
thing sold which he may suffer in whole or in part, or against
encumbrances alleged on that thing, and not declared at the time
of the sale.
Art. 1627
The parties may, by particular
agreements, add to this obligation of right or diminish its
effect; they may even agree that the seller may not be subject to
any warranty.
Art. 1628
Although it be said that the seller
may not be subject to any obligation, he nevertheless remains
liable to that which results from an act which is his own; any
agreement to the contrary is void.
Art. 1629.-In the same case of stipulation of no
warranty, the seller, in case of dispossession, is bound to return
the price, unless the purchaser knew, at the time of the sale, of
the danger of dispossession, or unless he bought at his own risk.
Art. 1630
If a warranty has been
promised, or if no stipulation was made in this respect, where the
purchaser is dispossessed, he is entitled to claim against the
seller:
1° The return of the price;
2° That of the fruits where he is obliged to return them to the
owner who dispossesses him;
3° The expenses
incurred in relation with the warranty claim of the buyer, and
those incurred by the original plaintiff;
4° Finally,
damages, as well as the expenses and proper costs of the
contract.
Art. 1631
Where, at the time of dispossession,
the thing sold has decreased in value or has been significantly
damaged, either owing to the negligent conduct of the buyer, or by
accidents of force majeure, the seller nevertheless is
bound to return the whole price.
Art. 1632
But if the purchaser has derived some
profit from the dilapidations made by him, the seller is entitled
to retain from the price a sum equal to that profit.
Art. 1633
Where the thing sold has increased in
price at the time of the dispossession, even independently from an
act of the purchaser, the seller is obliged to pay him what it is
worth above the price of the sale.
Art. 1634
A seller is bound to repay the
purchaser or to make the person who dispossesses him repay him for
all the useful repairs and improvements which he has made on the
tenement.
Art. 1635
Where a seller has sold the tenement of another in bad faith, he
is obliged to repay the purchaser for all the expenses, even for
luxury or pleasure, which the latter may have made on the
tenement.
Art. 1636
Where a purchaser is dispossessed from
only part of the thing, which is of such importance, in proportion
to the whole, that the purchaser would not have bought without the
part of which he is dispossessed, he may have the sale
terminated.
Art. 1637
Where, in case of dispossession of
part of a tenement sold, the sale is not terminated, the value of
the part of which the purchaser is dispossessed shall be
reimbursed to him according to an appraisal at the time of the
dispossession, and not in proportion to the total price of the
sale, whether the thing sold has increased or decreased in
value.
Art. 1638
Where a property sold is, without any
declaration having been made, encumbered with non-apparent
servitudes which are of such importance that it is to be presumed
that the purchaser would not have bought if he had known of them,
he may apply for termination of the contract, unless he prefers to
content himself with an indemnity.
Art. 1639
The other questions to which damages
resulting for the purchaser from the non-performance of the sale
may give rise shall be decided in accordance with the general
rules established in the Title Of Contracts and of
Conventional Obligations in General.
Art. 1640.
-A warranty against
dispossession ceases where the purchaser has allowed a final
judgment, or a judgment no longer appealable, to be handed down
against him without joining his seller in the proceedings, if the
latter proves that there were sufficient grounds to have the
action dismissed.
§ 2 - Of Warranty
against the Defects of the Thing Sold
Art. 1641
A seller is bound to a warranty on
account of the latent defects of the thing sold which render it
unfit for the use for which it was intended, or which so impair
that use that the buyer would not have acquired it, or would only
have given a lesser price for it, had he known of
them.
Art. 1642
A seller is not liable for defects
which are patent and which the buyer could ascertain for himself.
Art. 1642-1
(Act n° 67-547 of 7 July 1967)
The seller of a building to be erected
may not be discharged, either before approval of the work, or
before the expiry of a period of one month after the vesting of
the purchaser into possession, for defects of construction then
patent.
There may be no occasion for avoidance of the contract or for
diminution in price where the seller binds himself to repair the
defect.
Art. 1643
He is liable for latent defects, even though he did not know of
them, unless he has stipulated that he would not be bound to any
warranty in that case.
Art. 1644
In the cases of Articles 1641 and
1643, the buyer has the choice either of returning the thing and
having the price repaid to him or of keeping the thing and having
a part of the price repaid to him, as appraised by experts.
Art. 1645
Where the seller knew of the defects
of the thing, he is liable, in addition to restitution of the
price which he received from him, for all damages towards the
buyer.
Art. 1646
Where the seller did not know of the
defects of the thing, he is only liable for restitution of the
price and for reimbursing the buyer for the costs occasioned by
the sale.
Art. 1646-1
(Act n° 78-12 of 4 Jan. 1978)
The seller of a building to be erected
is liable, from the approval of the work, for the obligations for
which the architects, contractors and other persons bound towards
the building owner by a contract of hiring of industry and
services are themselves liable under Articles 1792, 1792-1, 1792-2
and 1792-3 of this Code.
Those warranties benefit the successive owners of the
building.
There may be no occasion for avoidance of the sale or diminution
in price where the seller binds himself to repair the damages
specified in Articles 1792, 1792-1 and 1792-2 of this Code and to
take upon himself the warranty provided for in Article 1792-3.
Art. 1647
Where the thing which had defects
perishes because of its bad quality, the loss falls upon the
seller who is liable to the buyer for restitution of the price and
other compensations explained in the two preceding Articles
[Articles 1645 and 1646].
But a loss occasioned by a fortuitous event falls upon the
buyer.
Art. 1648
The action resulting from redhibitory
vices must be brought by the buyer within a short time, according
to the nature of the redhibitory vices and the usage of the place
where the sale was made.
(Act n° 67-547 of 7 July 1967) In the case provided for in
Article 1642-1, the action must be brought, under pain of being
time-barred, within the year following the date on which the
seller may be discharged from patent defects.
Art. 1649
It does nor take place with
regard to sales made by order of the court.
CHAPTER V - OF
THE OBLIGATIONS OF THE BUYER
Art. 1650
The main obligation of the buyer is to
pay the price on the day and at the place fixed by the
sale.
Art. 1651
Where nothing has been fixed in this
regard at the time of the sale, the buyer must pay at the place
and at the time where and when delivery is to be
made.
Art. 1652
The buyer owes interest on the price
of the sale up to the time of the payment, in the three following
cases:
Where it has been so agreed at the time of the
sale;
Where the thing sold and delivered produces fruits or other
incomes;
Where the buyer is under notice to pay.
In that last case, interest runs only from the
notice.
Art. 1653
Where the buyer is disturbed or
rightly fears that he will be disturbed by an action, either for a
mortgage or for recovery of property, he may suspend the
payment of the price until the seller has caused the disturbance
to cease, unless the latter prefers to give security, or unless it
was stipulated that the buyer will pay notwithstanding a
disturbance.
Art. 1654
Where the buyer does not pay the
price, the seller may apply for avoidance of the sale.
Art. 1655
The avoidance of a sale of
immovables shall be ordered at once where the seller is in
danger of losing the thing and the price.
Where that danger does not exist, the judge may grant the
purchaser a period more or less long according to the
circumstances.
Where that period expires without the buyer having paid, the
avoidance of the sale shall be ordered.
Art. 1656
Where it has been stipulated at the
time of the sale of immovables that, failing payment within the
period agreed upon, the sale will be avoided by operation of law,
the purchaser may nevertheless pay after the expiry of the period,
so long as he is not given notice by a demand for payment; but,
after that demand, the judge may not grant him any
period.
Art. 1657
In matters of sale of commodities and
movable effects, the avoidance of the sale takes place by
operation of law, and without any demand, for the benefit of the
seller, after the expiry of the period agreed upon for the
removal.
CHAPTER VI - OF
AVOIDANCE AND RESCISSION OF SALES
Art. 1658
Independently of the grounds for
annulment or avoidance already explained in this Title, and of
those which are common to all agreements, a contract of sale may
be avoided through the exercise of a power of redemption and on
account of the cheapness of the price.
Section I - Of Power
of Redemption
Art. 1659
A power of redemption or repurchase is
an agreement by which the seller reserves to himself the taking
back of the thing sold, through restitution of the purchase price,
and the reimbursement which Article 1673 deals with.
Art. 1660
A power of redemption may not be
stipulated for a time exceeding five years.
Where it has been stipulated for a longer time, it shall be
reduced to that time.
Art. 1661
The time fixed is of the essence and
may not be extended by the judge.
Art. 1662
Where the seller has not exercised his
power of redemption within the time fixed, the purchaser remains
the irrevocable owner.
Art. 1663
The time runs against all persons, even against a minor, subject
to a remedy against those whom it may concern, if there is
occasion.
Art. 1664
The seller under a clause of
redemption may exercise his power against a second purchaser, even
when the power of redemption has not been declared in the second
contract.
Art. 1665
The purchaser under a clause of
redemption exercises all the rights of his seller; he may acquire
ownership by prescription both against the true owner and against
those who claim rights or mortgages on the thing sold.
Art. 1666
He may oppose the benefit of seizure
and sale against the creditors of his seller.
Art. 1667
Where the purchaser under a clause of
redemption of an undivided part of a property becomes the
successful bidder for the whole in an auction sale induced against
him, he may compel the seller to take back the whole when the
latter wishes to make use of the clause.
Art. 1668
Where several persons have jointly
sold, and by a same contract, a common property, each may exercise
the power of redemption only for the share which he had in
it.
Art. 1669
It shall be the same where the person
who has sold a property alone has left several heirs.
Each one of these co-heirs may make use of the power of redemption
only for the share he takes in the succession.
Art. 1670
But, in the case of the two preceding Articles, the purchaser may
demand that all the co-sellers or all the co-heirs be joined in
the proceedings in order to agree between them as to the
redemption of the whole property; and where they do not agree,
their action shall be dismissed.
Art. 1671
Where the sale of a property belonging
to several persons has not been jointly made and of the whole
property together, and where each has only sold the share
which he had therein, they may exercise separately the power of
redemption on the portion which belonged to
them;
And the purchaser may not compel the one who enforces it in that
way to redeem the whole.
Art. 1672
Where the purchaser has left several
heirs, the power of redemption may be exercised against each of
them only for his share, in the case where it is still undivided,
and in that where the thing sold has been partitioned between
them.
But, where a partition of the succession has taken place, and the
property sold has fallen to the share of one of them, the power of
redemption may be exercised against him for the whole.
Art. 1673
A seller who makes use of a clause of redemption shall reimburse
not only the purchase price, but also the expenses and fair costs
of the sale, the necessary repairs and those which have increased
the value of the tenement, up to the amount of that increase. He
may be vested into possession only after having discharged all
those obligations.
(Ord. n° 59-71 of 7 Jan. 1959) Where the seller comes into
his property again through the effect of a clause of redemption,
he retakes it free of all encumbrances and mortgages with which
the purchaser may have burdened it, provided that the clause has
been duly registered at the land registry, before the registration
of the said encumbrances and mortgages. He is bound to carry out
the leases made without fraud by the purchaser.
Section II - Of
Rescission of Sales because of Loss
Art. 1674
Where a seller has suffered a loss greater than seven-twelfths of
the price of an immovable, he is entitled to apply for the
rescission of the sale, even though he may have expressly
renounced in the contract the faculty of applying for that
rescission and have declared to donate the surplus.
Art. 1675
In order to ascertain whether there
has been a loss of the seven-twelfths, the immovable must be
appraised according to its condition and its value at the time of
the sale.
(Act of 28 Nov. 1949) In the case of a unilateral promise
of sale, the loss is appraised on the day of its execution.
Art. 1676
The claim is no longer admissible after the expiry of two years,
after the day of the sale.
That time runs against [married women, repealed by
implication], and against absentees, adults in guardianship
and minors coming in the right of an adult who has sold.
That time also runs and is not suspended during the period
stipulated for a clause of redemption.
Art. 1677
Proof of loss may be allowed
only through judgment, and in the case only where the facts
alleged are probable and serious enough to induce a presumption of
loss.
Art. 1678
That proof may be adduced only through
a report drawn by three experts who are obliged to make a single
joint memorandum, and to give but a single opinion by a plurality
of votes.
Art. 1679
Where there are different opinions,
the memorandum shall contain the reasons thereof, but it shall not
be allowed to disclose the opinion of each
expert.
Art. 1680
The three experts shall be appointed
by the court, unless the parties have agreed to appoint all
three jointly.
Art. 1681
In the case where the action for
rescission is entertained, the purchaser has the choice, either to
return the thing while taking back the price which he paid for it,
or to keep the tenement while paying the balance of the fair
price, after deducting one-tenth of the total price.
A third party in possession has the same right, save his warranty
against his seller.
Art. 1682
Where the purchaser prefers to keep
the thing by paying the balance specified by the preceding
Article, he owes the interest of that balance, from the day of the
claim for rescission.
Where he prefers to return it and to take back the price, he shall
return the fruits from the day of the claim.
Interest on the price which he has paid is also counted for him
from the day of the same claim, or from the day of payment, where
he has not collected any fruits.
Art. 1683
Rescission for loss does not take
place in favour of the buyer.
Art. 1684
It does not take place in any sale
which, according to law, may only be made by order of the court.
Art. 1685
The rules explained in the preceding
Section for cases in which several persons have sold jointly or
separately, and for the one in which the purchaser has left
several heirs, shall likewise be complied with when bringing
an action for rescission.
CHAPTER VII - OF
AUCTION
Art. 1686
Where a thing common to several
persons cannot be partitioned conveniently and without
loss;
Or where, in a partition of property in common made amicably,
there is any property which none of the coparceners can or wishes
to take,
A sale thereof shall be made by auction and the proceeds shall be
distributed between the co-owners.
Art. 1687
Each co-owner is at liberty to request
that outsiders be given notice of the sale: they shall necessarily
be given notice where one of the co-owners is a minor.
Art. 1688
The method and formalities to be
complied with for an auction are explained in the Title Of
Successions and in the Code of Civil
Procedure.
CHAPTER VIII -
OF ASSIGNMENT OF CLAIMS AND OF OTHER INCORPOREAL
RIGHTS
Art. 1689
In case of assignment of a claim, or
of a right or of an action against a third party, delivery takes
place between the assignor and the assignee by handing over the
instrument of title.
Art. 1690
An assignee is vested with regard to
third parties only by notice of the assignment served upon the
debtor.
Nevertheless, the assignee may likewise be vested by acceptance of
the assignment given by the debtor in an authentic act.
Art. 1691
Where, before the debtor has been
given notice by the assignor or the assignee, the debtor has paid
the assignor, he is lawfully discharged.
Art. 1692
The sale or assignment of a claim
includes the accessories of the claim, such as security, prior
charges and mortgages.
Art. 1693
A person who sells a claim or any
other incorporeal right must warrant its existence at the time of
the assignment, even though it is made without warranty.
Art. 1694
He is responsible for the solvency of
the debtor only where he has bound himself thereto, and only up to
the amount of the price which he has received for the
claim.
Art. 1695
Where he has promised the solvency of
the debtor, that promise only relates to the present solvency, and
does not extend to the future, unless the assignor has expressly
so stipulated.
Art. 1696
A person who sells an inheritance
without specifying its contents in detail, is bound to warrant
only his capacity as heir.
Art. 1697
If he had already benefited by fruits
of some tenement or received the amount of some claim
belonging to that inheritance, or sold some effects of the
succession, he is bound to reimburse the purchaser therefor,
unless he has expressly reserved them at the time of the
sale.
Art. 1698
The purchaser must on his part
reimburse the seller for what the latter has paid for the debts
and charges of the succession, and recompense him for everything
for which he was creditor, unless otherwise stipulated.
Art. 1699
A person against whom a litigious
right has been assigned may have himself released by the assignee
by reimbursing him for the actual price of the assignment with the
expenses and fair costs, and with interest from the day when the
assignee has paid the price of the assignment made to him.
Art. 1700
A matter is deemed litigious as soon
as there is a case and controversy as to the merits of the right.
Art. 1701
The provision laid down in Article
1699 shall not apply:
1° In the case where the assignment has been made to a co-heir or
co-owner of the right assigned;
2° Where it has been made to a creditor in payment of what is due
to him;
3° Where it has been made to the possessor of the property to
which the litigious right relates.
TITLE
VII
OF EXCHANGES
Art. 1702
An exchange is a contract by which the
parties give to each other one thing for another.
Art. 1703
An exchange is the outcome of the sole
consent of the parties, in the same manner as a
sale.
Art. 1704
Where one of the exchangers has
already received the thing given to him in exchange and he proves
afterwards that the other contracting party is not the owner of
that thing, he may not be compelled to deliver the thing that he
has promised in mutual exchange, but only to return the thing
which he has received.
Art. 1705
The exchanger who is dispossessed of
the thing which he has received in exchange has the choice between
claiming damages or claiming back his thing.
Art. 1706
Rescission on account of loss does not
take place in contracts of exchange.
Art. 1707
All the other rules laid down for
contracts of sale shall apply to exchanges as to other
issues.
TITLE VIII
OF HIRING
CHAPTER I -
GENERAL PROVISIONS
Art. 1708
There are two kinds of contracts of
hiring:
One for things,
And one for work.
Art. 1709
The hiring of things is a contract by
which one of the parties binds himself to have the other enjoy a
thing during a certain time, and at a charge of a certain price
which the latter binds himself to pay him.
Art. 1710
The hiring of work is a contract by
which one of the parties binds himself to do something for the
other, at a charge of a price agreed between
them.
Art. 1711
These two modes of hiring are further
subdivided into several particular kinds:
The hiring of houses and movables is called a lease for
rent;
That of rural property, an
agricultural lease;
That of work or of service, a
hire;
That of animals of which the profits
are divided between the owner and the one to whom he entrusts
them, a livestock lease;
Estimates, contracts or fixed
bargains, for the undertaking of a work at a charge of a
determined price, are also hiring, where the material is provided
by the one for whom the work is done.
These last three kinds have special rules.
Art. 1712
Leases of national property, of the
property of communes and public institutions are subject to
special rules.
CHAPTER II - OF THE RENTAL OF THINGS
Art. 1713
One may rent all kinds of property,
movables and immovables.
Section I – Of
the Rules Common to Leases of Houses and of Rural
Property
Art. 1714
(Ord. of 17 Oct. 1945; Act n°46-682 of 13 April
1946)
One may lease either in writing or
verbally, except, as regards rural property, for the application
of the rules particular to agricultural leases and sharecropping.
Art. 1715
Where a lease made without any writing
has not yet been carried out, and one of the parties denies it,
proof may not be adduced through witnesses, however moderate the
price may be, and although it is alleged that a deposit was
paid.
Oath may be tendered only to the one who denies the
lease.
Art. 1716
Where there is a controversy as to the
price of a verbal lease which is being carried out, and there is
no receipt, the owner shall be believed upon his oath, unless the
tenant prefers to apply for an appraisal by experts; in which
case, the costs of the appraisement shall be charged to him, if
the appraisal exceeds the price which he has
declared.
Art. 1717
A lessee has the right to sublet or
even to assign his lease to another person, unless that faculty
has been forbidden to him.
It may be forbidden wholly or in part.
Such a clause is always strict.
Art. 1718
(Act n° 65-570 of 13 July
1965)
The provisions of Article 595,
paragraphs 2 and 3, relating to leases made by usufructuaries
shall apply to leases made by a guardian without authorization of
the family council.
Art. 1719
A lessor is bound, by the nature of
the contract, and without need of any particular
stipulation:
1° To deliver the thing leased to the lessee “and, where the main
dwelling of the latter is concerned, a decent lodging” (Act n°
2000-1208 of 13Dec. 2000);
2° To maintain that thing in order so that it can serve the use
for which it has been let;
3° To secure to the lessee a peaceful enjoyment for the duration
of the lease;
4° (Act n°46-682 of 13 April 1946) To secure also the
permanence and quality of plantings.
Art. 1720
A lessor is bound to deliver the thing
in good repair of whatever character.
He must, during the term of the lease, make all the repairs which
may become necessary, other than those incumbent upon lessees.
Art. 1721
A warranty is due to the tenant for all vices or defects of the
thing leased which prevent use of it, although the lessor did not
know of them at the time of the lease.
Where any loss results to the lessee from those vices or defects,
the lessor is obliged to indemnify him.
Art. 1722
Where, during the term of the lease, the thing leased is wholly
destroyed by a fortuitous event, the lease is terminated by
operation of law; where it is destroyed only in part, the lessee
may, according to the circumstances, apply either for a reduction
in price, or even for termination of the lease. In either case, no
compensation is owed.
Art. 1723
A lessor may not, during the term of
the lease, change the form of the thing leased.
Art. 1724
Where, during the lease, the thing
leased needs urgent repairs which cannot be postponed until its
end, the lessee must bear them, whatever inconvenience they cause
him and although he is deprived of a part of the thing leased
while they are being made.
But where those repairs last more than forty days, the rent shall
be reduced in proportion to the time and to the part of the thing
leased of which he has been deprived.
Where the repairs are of such a nature that they render
uninhabitable what is required for the lodging of the lessee and
his family, he may have the lease terminated.
Art. 1725.-A lessor is not bound to warrant the
lessee against disturbance which third persons cause to his
enjoyment by assault, without claiming in other respects any
right to the thing leased; but the lessee may proceed against them
in his own name.
Art. 1726
Where, on the contrary, the tenant or
the farmer have been disturbed in their enjoyment in consequence
of an action relating to the ownership of the tenement, they are
entitled to a proportionate reduction of the rent of the lease or
agricultural lease, provided that a notice of the disturbance and
of the impediment has been served upon the owner.
Art. 1727
Where those who have committed assault
claim to have some right to the property leased, or where the
lessee himself is summoned in court to be ordered to relinquish
all or part of that thing, or to suffer the exercise of some
servitude, he must have the lessor made a party to warranty
proceedings and shall be left out of the action, if he so demands,
by naming the lessor on whose behalf he possesses.
Art. 1728
A lessee is bound to two main
obligations:
1° To make use of the thing leased as a prudent administrator and
according to the purposes intended by the lease, or according to
those presumed under the circumstances, failing an
agreement;
2° To pay the rent at the agreed times.
Art. 1729
Where the lessee uses the thing leased
for another use than the one for which it was intended, or from
which damage may result to the lessor, the latter may, according
to the circumstances, have the lease terminated.
Art. 1730
Where an inventory of fixtures has
been made between the lessor and the lessee, the latter must
return the thing such as he received it, according to that
inventory, except for what has perished or has been deteriorated
through decay or force majeure.
Art. 1731
Where no inventory has been made, the
lessee is presumed to have received the premises in a good state
of repairs incumbent upon lessees, and must return them in the
same state, except for proof to the contrary.
Art. 1732
He is answerable for the
deteriorations or losses occurring during his enjoyment, unless he
proves that they took place without his fault.
Art. 1733
He is answerable for fire, unless he
proves:
That the fire happened by a fortuitous event or force
majeure, or by a defect of construction, or
That the fire was communicated through a neighbouring house.
Art. 1734
(Act of 5 Jan. 1883)
Where there are several tenants, they
are all liable for a fire in proportion to the rental value of the
part of the building which they occupy;
Unless they prove that the fire has originated in the dwelling of
one of them, in which case, that one alone is liable;
or
Unless some of them prove that the fire could not have started
with them, in which case those ones are not
liable.
Art. 1735
A lessee is responsible for the
deteriorations and losses which occur through the act of
persons of his house or of his sub-tenants.
Art. 1736
Where a lease was made without
writing, one of the parties may give the other notice to quit only
by observing the period fixed by the usage of the place.
Art. 1737
A lease ceases by operation of law at
the expiry of the term fixed, where it has been made in writing,
without it being necessary to give notice to quit.
Art. 1738
Where, at the expiry of written
leases, the lessee remains and is left in possession, a new lease
takes place, whose effect is regulated by the Article relating to
leases made without writing.
Art. 1739
Where a notice to quit has been
served, the lessee, although he has continued his enjoyment, may
not invoke a tacit renewal.
Art. 1740
In the case of the two preceding
Articles, a security given for a lease does not extend to the
obligations resulting from an extension.
Art. 1741
A contract of lease is terminated by
the loss of the thing leased and by the respective failure of the
lessor and the lessee to perform their undertakings.
Art. 1742
A contract of lease is not terminated
by the death of the lessor or by that of the
lessee.
Art. 1743
(Ord. n° 45-2380 of 17 Oct. 1945; Act n°46-682 of 13
April 1946)
Where a lessor sells a thing leased,
the purchaser may not evict the agricultural tenant, sharecropper
or tenant who has an authentic lease or one whose date is
undisputable.
He may, however, evict a tenant of non-rural property where he has
reserved that right by the contract of lease.
Art. 1744
(Ord. n° 45-2380 of 17 Oct.
1945)
Where it was agreed at the time of the
lease that in case of sale, the purchaser would be allowed to
evict the lessee and no stipulation was made as to damages, the
lessor is bound to indemnify the tenant in the following
manner;
Art. 1745
In case of a house, apartment or shop,
the lessor shall pay to the evicted tenant, as damages, a sum
equal to the price of the rent during the time which, according to
the usage of the place, is allowed between the notice to quit and
the departure.
Art. 1746
In case of rural property, the
indemnity which the lessor must pay shall be one-third of the
price of the lease for the whole time which remains to run.
Art. 1747
Where manufactures, factories or other
establishments which require large advances are concerned, the
indemnity shall be fixed by experts.
Art. 1748
(Ord. n° 45-2380 of 17 Oct.
1945)
A purchaser who wishes to make use of
the faculty reserved by the lease to evict a tenant in case of
sale is also bound to inform him within the period customary in
the place for notices to quit.
Art. 1749
(Ord. n° 45-2380 of 17 Oct.
1945)
Tenants may not be evicted
unless the damages explained above have been paid to them by the
lessor or, in his default, by the new purchaser.
Art. 1750
Where a lease is not made by authentic
instrument or has not an undisputable date, the purchaser is not
liable for any damages.
Art. 1751
(Act n° 62-902 of 4 Aug. 1962)
The right to a lease of premises,
without professional or commercial character, which is actually
used for the dwelling of two spouses and even where the lease was
concluded before the marriage, is, whatever their matrimonial
regime may be and notwithstanding any agreement to the contrary,
considered to belong to both spouses.
In case of divorce or judicial separation, that right may be
allotted by the court seized of the application for divorce or
judicial separation, on account of the social and family interests
concerned, to one of the spouses, subject to the rights to
reimbursement or indemnity for the benefit of the other spouse.
(Act n° 2001-1135 of 3 Dec. 2001) In case of death of one
of the spouses, the surviving spouse co-lessee has an exclusive
right on it, except where he or she expressly renounces it.
Section
II Of the Special Rules for Leases of
Houses
Art. 1752
A tenant which does not garnish the
house with sufficient furniture may be evicted, unless he gives
sufficient security to answer for the rent.
Art. 1753
A sub-tenant is liable to the owner
only up to the amount of the price of his sub-lease which he may
owe at the time of the seizure, without his being allowed to set
off payments made in advance.
Payments made by a sub-tenant either under a stipulation contained
in his lease, or as a consequence of the usage of the place, are
not deemed to be made in advance.
Art. 1754
Repairs incumbent upon the tenant or
those of routine maintenance for which a tenant is responsible,
unless otherwise stipulated, are those which are considered as
such by the usage of the place and, among others, the repairs to
be made :
To fireplaces, back-plates, mantelpieces and
mantelshelves;
To the plastering of the bottom of walls of flats and other places
of dwelling, to the height of one metre;
To pavements and tiles of rooms, where only a few are
broken;
To panes of glass, unless they are broken by hail, or other
accidents, extraordinary and by force majeure, for which a
tenant may not be made responsible;
To doors, windows, boards for partitioning or closing shops,
hinges, bolts and locks.
Art. 1755
None of the repairs deemed as
incumbent upon a tenant may be charged to tenants, where they are
occasioned only through decay or force
majeure.
Art. 1756
The cleaning of wells and that of cesspools are charged to the
lessor, unless there is a clause to the contrary.
Art. 1757
A lease of furniture supplied to
garnish a whole house, a whole main building, a shop, or all
others flats, is deemed made for the usual duration of leases of
houses, main buildings, shops or other flats, according to the
usage of the place.
Art. 1758
A lease of a furnished apartment is
deemed made by the year where it has been made for so much a
year;
By the month, where it has been made for so much a
month;
By the day, where it has been made for so much a
day.
Where nothing shows that the lease was made for so much a year, a
month or a day, the tenancy is deemed made according to the usage
of the place.
Art. 1759
Where the tenant of a house or a flat
continues his enjoyment after the expiry of the lease in writing,
without objection on the part of the lessor, he shall be deemed to
occupy them under the same conditions, for the term fixed by the
usage of the place, and he may not leave nor be evicted
except after a notice to quit served according to the usage
of the place.
Art. 1760
In case of termination owing to the
fault of the lessee, the latter is bound to pay the price of the
rent during the time necessary for re-renting, without prejudice
to damages which may have resulted from the abuse.
Art. 1761
A lessor may not terminate the
tenancy, although he declares that he wishes to occupy himself the
house leased , unless there is a stipulation to the contrary.
Art. 1762
Where it was agreed, in the contract
of lease, that the lessor may come and occupy the house, he is
bound to give notice to quit in advance, at the times fixed by the
usage of the place.
Section III – Of the
Special Rules for Agricultural Leases
Art. 1763
[repealed]
Art. 1764
In case of breach, the owner is
entitled to re-enter into enjoyment and the lessee shall be
ordered to pay the damages resulting from the non-performance of
the lease.
Art. 1765
Where, in an agricultural lease,
tenements are given a lesser or greater capacity than the one they
really have, there is occasion for an increase or a decrease
in price for the farmer only in the cases and under the conditions
expressed in the Title Of Sales.
Art. 1766
Where the lessee of a rural property
does not furnish it with cattle and implements necessary for its
farming, where he abandons cultivating, where he does not
cultivate as a prudent owner, where he makes of the thing leased a
use other than that for which it was intended, or, in general,
where he does not comply with the terms of the lease and the
lessor suffers a loss thereby, the lessor may, according to the
circumstances, have the lease terminated.
In case of termination owing to an act of the lessee, he is liable
for damages, as is stated in Article 1764.
Art. 1767
Any lesser of rural property is bound
to store the crops in the place provided for that purpose
according to the lease.
Art. 1768
A lessee of rural property is bound to
give notice to the owner of all encroachments which may be
committed against the tenements, on pain of all costs and
damages.
That notice must be given within the same period as that fixed for
the case of an originating claim according to the distance between
places.
Art. 1769
Where the lease is made for several
years, and, during the term of lease, the whole or half of a crop
at least is carried off by fortuitous events, the farmer may ask
for a rebate of the price of the lease, unless he is compensated
by the preceding crops.
Where he is not compensated, the appraisal of the rebate may take
place only at the end of the lease, at which time, a set-off shall
be made of all the years of enjoyment;
And nevertheless the judge may temporarily exempt the lessee from
paying a part of the price by reason of the loss suffered.
Art. 1770
Where a lease is only for one year,
and the loss is of the whole or at least of half the fruits, the
lessee is discharged from a proportionate part of the price of the
rent.
He may not claim any rebate where the loss is of less than
one-half.
Art. 1771
A farmer may not obtain any rebate
where the loss of the fruits occurs after they have been separated
from the ground, unless the lease gives the owner a share of the
crop in kind; in which case, the owner must bear his share of the
loss, provided the lessee was not under notice to deliver his
share of the crop to him.
Neither may a farmer ask for a rebate, where the cause of the
damage existed and was known at the time when the lease was
made.
Art. 1772
A lessee may be made responsible for
fortuitous events by an express stipulation.
Art. 1773
That stipulation shall only apply to
ordinary fortuitous events, such as hail, lightning, frost or
failure of the crop.
It may not extend to extraordinary fortuitous events, such as the
ravages of war, or a flood, to which the country is not ordinarily
subject, unless the lessee has been made responsible for all the
fortuitous events, foreseen or unforeseen.
Art. 1774
An unwritten lease of a rural
tenement, is deemed made for the time which is necessary in order
that the lessee collects all the fruits of the property farmed.
Thus an agricultural lease of a field, of a vineyard, and of any
other tenement whose fruits are collected in whole during the
course of a year, is deemed made for one year.
A lease of arable lands, where they are divided by break or
season, is deemed made for as many years as there are breaks.
Art. 1775
(Act of 15 July 1942)
A lease of rural properties, although
unwritten, ceases at the expiry of the time specified by the
preceding Article only through the effect of a written notice to
quit given by one of the parties to the other, six months at least
before that time.
Failing a notice to quit given in the time above specified, a new
lease takes place whose effect is regulated by Article
1774.
It shall be the same where, at the expiry of written leases, the
lessee remains and is left in possession.
Art. 1776 [repealed]
Art. 1777
A departing farmer must leave to the
one who succeeds him in the cultivation, suitable lodging and
other facilities for the work of the following year; and
reciprocally, the entering farmer must provide the one who is
departing with suitable lodging and other facilities for the
consumption of fodder and for harvests which remain to be
made.
In either case, the usage of the place must be complied
with.
Art. 1778
A departing farmer must also leave the
straws and manure of the year, where he has received them on
entering into possession; and even where he did not receive them,
the owner may retain them according to his appraisal.
CHAPTER III - OF THE HIRING OF INDUSTRY AND
SERVICES
Art. 1779
There are three main kinds of hiring
of industry and services:
1° The hiring of workers who enter the service of
someone;
2° That of carriers, as well by land as by water, who undertake to
carry persons or goods;
3° (Act n° 67-3 of 3 Jan. 1967) That of architects,
contractors for work and technicians following research, estimates
or contracts.
Section I - Of the
Hiring of Servants and Workers
Art. 1780
One person may engage his services
only for a time , or for a specified
undertaking.
(Act of 27 Dec. 1890) The hiring of services made without
determination of duration may always cease through the wish of one
of the contracting parties.
Nevertheless, the termination of the contract through the wish of
one only of the contracting parties may give rise to
damages.
To fix the compensation to be granted, if any, account shall be
taken of usages, of the nature of the services hired, of the time
elapsed, of the deductions made and of the payments made in view
of a retirement pension, and, in general, of all the circumstances
which may establish the existence and determine the extent of the
loss caused.
The parties may not renounce in advance the contingent right to
claim damages under the above provisions.
The controversies to which the application of the preceding
paragraphs may give rise, when they are brought before civil
courts and before courts of appeal, shall be prepared for trial as
summary proceedings and tried as emergencies.
Art. 1781 [repealed]
Section II -
Of Carriers by Land and by Water
Art. 1782
Carriers by land and by water are
subject, for the custody and preservation of the things which are
entrusted to them, to the same obligations as innkeepers who are
dealt with in the Title Of Deposits and of Sequestration.
Art. 1783
They answer not only for what they
have already received in their boat or carriage, but also for what
has been delivered to them in port or in warehouse, to be placed
in their boat or carriage.
Art. 1784
They are liable for the loss and damages of the things which are
entrusted to them, unless they prove that they have been lost or
damaged by fortuitous event or force
majeure.
Art. 1785
Common carriers by land or by water,
and public haulage contractors, must keep account books for the
money, the articles and parcels which they take charge
of.
Art. 1786
Common carriers and directors of
public carriage and haulage, masters of boats and ships, are in
addition subject to particular regulations which constitute the
law between them and other citizens.
Section III - Of
Estimates and of Works
Art. 1787
Where one instructs a person to do a
work, it may be agreed that he will furnish his work or his
industry only, or that he will also furnish the material.
Art. 1788
Where, in case the worker furnishes
the material, the thing happens to perish, in whatever manner,
before it is delivered, the loss falls upon the worker, unless the
master was given notice to receive the thing.
Art. 1789
In case the worker furnishes his work
only, if the thing happens to perish, the workman is liable for
his fault only.
Art. 1790
Where, in the case of the preceding
Article, the thing happens to perish, although without any fault
on the worker's part, before the work was received, and without
the master being given notice to check it, the worker may not
claim any wages, unless the thing has perished through defect of
the material.
Art. 1791
Where a work for several pieces or by
measure is concerned, it may be checked by parts: checking is
deemed to have been made for all the parts paid, if the master
pays the worker in proportion to the work done.
Art. 1792
(Act n° 78-12 of 4 Jan. 1978)
Any builder of a work is liable as of
right, towards the building owner or purchaser, for damages, even
resulting from a defect of the ground, which imperil the strength
of the building or which, affecting it in one of its constituent
parts or one of its elements of equipment, render it unsuitable
for its purposes.
Such liability does not take place where the builder proves that
the damages were occasioned by an extraneous event.
Art. 1792-1
(Act n° 78-12 of 4 Jan. 1978)
Are deemed builders of the
work:
1° Any architect, contractor, technician or other person bound to
the building owner by a contract of hire of
work;
2° Any person who sells, after completion, a work which he built
or had built;
3° Any person who, although acting in the capacity of agent for
the building owner, performs duties similar to those of a hirer
out of work.
Art. 1792-2
(Act n° 78-12 of 4 Jan. 1978)
The presumption of liability
established by Article 1792 also extends to damages affecting the
strength of the elements of equipment of a building, but only
where the latter are an indissociable and integral part of the
works of development, foundation, ossature, close or
cover.
An element of equipment is deemed to be an indissociable part of
one of the works listed in the preceding Article where the
demounting, disassembling or replacing thereof cannot be effected
without deterioration or removal of material from that work.
Art. 1792-3
(Act n° 78-12 of 4 Jan. 1978)
Other elements of equipment of a
building are the subject of a warranty of good running for a
minimum period of two years after the approval of the work.
Art. 1792-4
(Act n° 78-12 of 4 Jan. 1978)
The manufacturer of a work, of a part
of a work or of an element of equipment designed and produced for
meeting precise and predetermined requirements when in working
order, is jointly and severally liable for the obligations placed
by Articles 1792, 1792-2 and 1792‑3 on the hirer out of work who
made use, without modification and in compliance with the
directions of the manufacturer, of the work, part of work or
element of equipment concerned.
For the purpose of this Article, shall be treated in the same way
as manufacturers:
A person who imported a work, a part of work or an element of
equipment manufactured abroad;
A person who presented it as his own work by having his name, his
trade mark or any other distinguishing sign appear on it.
Art. 1792-5
(Act n° 78-12 of 4 Jan. 1978)
Any clause of a contract having the
purpose, either of excluding or limiting the liability provided
for in Articles 1792, 1792-1 and 1792-2, or of excluding “the
warranties provided for in Articles 1792-3 and 1792-6” (Act n°
90-1129 of 19 Dec. 1990) or of limiting their extent, or
setting aside or limiting the joint and several liability provided
for in Article 1792-4, shall be deemed not written.
Art. 1792-6
(Act n° 78-12 of 4 Jan. 1978)
Approval is the act by which the
building owner declares that he accepts the work with or without
reservation. It occurs at the suit of the first requesting party,
either amicably or, failing which, judicially. In any case, it
shall be pronounced adversarily.
The warranty of perfected completion, to which a contractor is
held during a period of one year, after the approval, extends to
the repairs of all shortcomings indicated by the building owner,
either through reservations mentioned in the memorandum of
approval, or by way of written notice as to those revealed after
the approval.
The periods required for the carrying out of the works of repair
shall be fixed by common agreement by the building owner and the
contractor concerned.
Failing such an agreement or in case of non-carrying out within
the period fixed, the works may, after a notice of default
remained ineffective, be carried out at the expenses and risks of
the defaulting contractor.
The carrying out of the works required under the warranty of
perfected completion shall be established by common agreement or,
failing which, judicially.
The warranty does not extend to the works required to remedy the
effects of normal wear or of use.
Art. 1793
Where an architect or a contractor has
undertaken to erect a building at a fixed price, according to a
plan settled and agreed with the owner of the ground, he may not
ask for any increase in the price, either under the pretext of
increase in labour or material, or under that of changes or
additions made in the plan, unless those changes or additions have
been authorized in writing and the price agreed with the
owner.
Art. 1794.
-A master may, by his wish alone, terminate a
contract at a fixed price, although the work has already begun, by
compensating the contractor for all his expenses, for all his
works, and for all that he could have earned in that undertaking.
Art. 1795
A contract of hiring of work is
dissolved by the death of the worker, of the architect or of the
contractor.
Art. 1796
But the owner is bound to pay to their
succession, in proportion to the price given in the agreement, the
value of the works done and that of the materials prepared, only
where those works or materials can be useful to him.
Art. 1797
A contractor is responsible for the
acts of the persons whom he employs.
Art. 1798
Masons, carpenters and other workers
who have been employed in the construction of a building , or of
other works made under a contract to do work, have an action
against the person for whom the works have been done only up to
the amount for which that person is debtor towards the contractor,
at the time when their action is instituted.
Art. 1799
Masons, carpenters, locksmiths and
other workers who enter directly into contracts for a definite
lump sum, are subject to the rules prescribed in this Section:
they are contractors as to the part they undertake.
Art. 1799-1
(Act n° 94-475 of 10 June
1994)
A building owner who enters into a private constructional works
contract referred to in Article 1779, 3°, must warrant to the
contractor the payment of the sums owed when they exceed a
threshold fixed by decree in Conseil
d’État
1.
Where a building owner has recourse to
a specific credit for financing the works, the credit institution
may not pay the amount of the loan to a person different from the
ones mentioned in Article 1779, 3°, so long as the latter have not
received payment of the whole of the claim arising from the
contract corresponding to the loan. Payments shall be made by a
written order and under the exclusive responsibility of the
building owner into the hands of the person or of an agent
appointed for that purpose.
Where a building owner does not have recourse to a specific credit
or where he has recourse to it only in part, and failing a
guarantee resulting from a particular stipulation, payment shall
be warranted by a joint and several suretyship agreed to by a
credit institution, an insurance company or an institution of
collective guarantee, according to terms fixed by decree in
Conseil d’État. So long as no guarantee has been given and
the contractor is not paid for the works carried out, the latter
may suspend performance of the contract after a notice of default
remained ineffective at the end of a period of fifteen
days.
(Act n° 95-96 of 1 Feb. 1995) The provisions of the
preceding paragraph shall not apply where the building owner
enters into a constructional works contract on his own behalf and
to meet needs which do not belong to an occupation relating to
that contract.
The provisions of this Article shall not apply to the contracts
concluded by a body referred to in Article L. 411-2 of the
Building and Housing Code or by a semi-public company, for
lodgings to be rented which have received an aid of the State and
have been carried out by that body or company.
1
D. n°99-658 of
30 July 1999: 79
000 F (12 000 €)
CHAPTER IV - OF LEASES OF LIVESTOCK
Section I -
General Provisions
Art. 1800
A lease of livestock is a contract by
which one of the parties gives the other a stock of cattle to be
kept, fed and cared for, under the terms agreed between them.
Art. 1801
There are several kinds of leases of
livestock:
Simple or ordinary lease of livestock,
Lease of livestock by halves,
Lease of livestock given to a farmer or
sharecropper.
There is also a fourth kind of contract improperly named lease
of livestock.
Art. 1802
A lease of livestock may be made for
any kind of animals capable of increase or of profit for
agriculture or trade.
Art. 1803
Failing special agreement, those
contracts are regulated by the following
principles.
Section II -
Of Ordinary Leases of Livestock
Art. 1804
An ordinary lease of livestock is a
contract by which one person gives another cattle to be kept, fed
and cared for, on condition that the lessee will profit from half
the increase in stock and will also bear one-half of the
loss.
Art. 1805
(Act of 9 June 1941)
The statement of the number,
description and appraisal of the animals delivered, which appears
in the lease, does not transfer ownership of them to the lessee.
It has no other purpose than to be used as basis for the
settlement to occur on the day when the contract comes to an end.
Art. 1806
A lessee is bound to give the care of
a prudent owner to the preservation of the
livestock.
Art. 1807
He is liable for a fortuitous event
only where it was preceded by some fault on his part, without
which the loss would not have occurred.
Art. 1808
In case of dispute, the lessee is
bound to prove the fortuitous event, and the lessor is bound to
prove the fault which he ascribes to the lessee.
Art. 1809
A lessee who is discharged by a
fortuitous event is always bound to account for the hides of the
animals.
Art. 1810
(Act of 5 Nov. 1941)
Where the livestock perishes in whole
without a fault of the lessee, the loss falls on the
lessor.
Where only a part of it perishes, the loss is borne jointly,
according to the price of the original appraisal and that of the
appraisal at the expiry of the lease.
Art. 1811
It may not be
stipulated:
That the lessee shall bear the total loss of the livestock,
although occurred through a fortuitous event and without his
fault;
Or that he shall bear in the loss a greater share than in the
profits;
Or that the lessor shall, at the end of the lease, set apart
something more than the livestock which he has
furnished.
Any agreement of this kind is void.
The lessee shall alone benefit from milk, manure and work of the
animals leased.
The wool and the increase in stock shall be divided.
Art. 1812
A lessee may not dispose of any animal
of a herd or flock, either from the stock or from the increase,
without the consent of the lessor who himself may not dispose of
it without the consent of the lessee.
Art. 1813
Where livestock is given to the tenant
of another, notice of it must be given to the landlord from whom
that tenant holds; otherwise, he may seize it and have it sold for
what his tenant owes him.
Art. 1814
A lessee may not shear without the
consent of the lessor.
Art. 1815
Where no time has been fixed by the
agreement for the duration of a lease, it is deemed made for three
years.
Art. 1816
The lessor may claim its termination sooner, where the lessee does
not fulfil his obligations.
Art. 1817
(Act of 9 June 1941)
At the end of the lease or at the time
of its termination, the lessor shall set apart animals of each
kind in order to obtain a stock of cattle similar to that which he
delivered, in particular as to number, breed, age, weight and
quality of the animals; the excess shall be partitioned.
Where there are not enough animals to replenish the stock of
cattle such as defined above, the parties shall account to each
other for the loss on the basis of the value of the animals on the
day when the contract comes to an end.
Any agreement under which, at the end of the lease or at the time
of its termination, the lessee shall leave a stock of cattle of a
value equal to the price of the appraisal of the one which he
received, is void.
Section III
- Of Leases of Livestock by Halves
Art. 1818
A lease of livestock by halves is a
firm in which each contracting party furnishes one half of the
cattle, which remain in common for profits or for
loss.
Art. 1819
A lessee shall alone profit from milk,
manure and works of the animals, as in an ordinary lease of
livestock.
A lessor shall be entitled only to one half of the wool and of the
increase.
Any agreement to the contrary is void, unless the lessor is the
owner of the farm of which the lessee is farmer or sharecropper.
Art. 1820
All the other rules of an ordinary
lease of livestock shall apply to a lease of livestock by
halves.
Section IV - Of Leases of Livestock Granted by an Owner
to his Farmer or Sharecropper
§ 1 -
Of Livestock Leased to a Farmer
Art. 1821
(Act of 9 June 1941)
Such lease (also called iron lease
of livestock) is one by which the owner of an agricultural
holding gives it on lease on condition that at the expiry of the
lease, the farmer shall leave the same stock of cattle as that
which he received.
Art. 1822
(Act of 9 June 1941)
The statement of the number,
description and appraisal of the animals delivered, which appears
in the lease, does not transfer ownership of them to the lessee.
It has no other purpose than to be used as basis for the
settlement to occur on the day when the contract comes to an end.
Art. 1823
All profits belong to the farmer
during the period of his lease, unless otherwise
agreed.
Art. 1824
In leases of livestock leased to a
farmer, the manure is not among the personal profits of the
lessees, but belongs to the farm, for the cultivation of which it
must be exclusively used.
Art. 1825
(Act of 5 Oct. 1941)
Loss, even total and by fortuitous
event, falls wholly upon the farmer, unless otherwise
agreed.
Art. 1826
(Act of 9 June 1941)
At the end of the lease or at the time
of its termination, the lessee shall leave animals of each kind
composing a stock of cattle similar to that which he received, in
particular as to number, breed, age, weight and quality of the
animals.
Where there is an
excess, it belongs to him.
Where there is a deficit, settlement between the parties shall be
made on the basis of the value of the animals on the day when the
contract comes to an end.
Any agreement under which, at the end of the lease or at the time
of its termination, the lessee shall leave a stock of cattle of a
value equal to the price of the appraisal of the one which he
received, is void.
§
2 - Of Livestock Leased to a Sharecropper
Art. 1827
(Act of 5 Oct. 1941)
Where the livestock perishes in whole
without a fault of the sharecropper, the loss falls on the
lessor.
Art. 1828
It may be stipulated that the
sharecropper shall surrender to the lessor his part of the fleece
at a price below the ordinary value;
That the lessor shall have a larger share of the
profit;
That he shall have half of the milk;
But it may not be
stipulated that the sharecropper shall bear the whole loss.
Art. 1829
Such lease comes to an end with the
lease of the farm.
Art. 1830
As to other issues, it shall be
subject to all the rules of an ordinary lease of
livestock.
Section V – Of the
Contract Improperly Named Lease of
Livestock
Art. 1831
Where one or several cows are given to
be sheltered and fed, the lessor keeps ownership over them; he has
only the profit of the calves which are born of them.
TITLE VIII
bis
OF THE CONTRACT OF REAL ESTATE
PROMOTION
(Act n° 71-579 of 16 July
1971)
Art. 1831-1
A contract of real estate promotion is
an agency for the joint interest of both parties by which a person
said "real estate promoter” binds himself towards a
building owner to have the carrying out of a program of
construction of one or several buildings undertaken for an agreed
price and by way of contracts of hiring of services, as well as to
undertake himself or have undertaken, for an agreed remuneration,
all or part of the legal, administrative and financial formalities
or transactions concurring for the same purpose. That promoter is
the warrantor of the performance of the obligations placed on the
persons with whom he has dealt on behalf of the building owner.
“He is in particular responsible for the obligations resulting
from Articles 1792, 1792-1, 1792-2 and 1792-3 of this Code”
(Act n° 78-12 of 4 Jan. 1978).
Where a promoter binds himself to perform personnaly part of the
operations of the program, he is bound, as to those operations,
for the obligations of a hirer out of works.
Art. 1831-2
As to the promoter, the
contract involves authority to conclude contracts, approve the
works, close agreements and generally, do in the name of the
building owner, all the transactions required by the carrying out
of the program, up to the amount of the lump-sum agreed.
However, a promoter binds the building owner, by the loans he
contracts or the acts of disposal he enters into, only under a
special agency contained in the contract or in a subsequent
instrument.
The building owner is bound to perform the undertakings contracted
on his behalf by the promoter within the authority which the
latter holds under a statute or the agreement.
Art. 1831-3
Where, before the completion of the
program, the building owner assigns the rights he has on it, the
assignee is substituted to him by operation of law, as to assets
and liabilities, for the whole of the contract. “The assignor is
warrantor of the performance of the obligations placed on the
building owner by the contract assigned” (Act n° 72-649 of 11
July 1972).
Special agencies given to the promoter continue between the latter
and the assignee.
The promoter may not substitute a third party for himself in the
performance of the obligations which he has contracted with the
building owner without the consent of the
latter.
A contract of real estate promotion is effective against third
parties only from the date of its entry on the land register.
Art. 1831-4
The task of a promoter comes to an end
with the delivery of the work only where the accounts for
construction have been definitely settled between the building
owner and the promoter, all of which without prejudicing the
actions for damages which may belong to the building owner against
the promoter.
Art. 1831-5
Judicial arrangement or liquidation
does not involve as of right the termination of a contract of real
estate promotion. Any stipulation to the contrary shall be deemed
not written.
TITLE IX
OF FIRMS AND COMPANIES
(Act n° 78-9 of
4 Jan. 1978)
CHAPTER I
GENERAL PROVISIONS
Art. 1832
(Act n° 85-697 of 11 July
1985)
A firm is established by two or
several persons which agree by a contract to appropriate property
or their industry for a common venture with a view to sharing the
benefit or profiting from the saving which may result therefrom.
It may be established, in the cases
provided for by statute, through an act of will of one person
alone.
The members bind themselves to
contribute to losses.
Art.
1832-1
“Even where they use only community property for the
contributions to a firm or for the acquisition of shares of a
firm, two spouses alone or with other persons may be members of a
same firm and participate together or not in the management of the
firm” (Act n° 82-596 of 10 July 1982).
The advantages and gratuitous
transfers resulting from a firm agreement between spouses may not
be avoided because they would constitute disguised gifts, where
their terms have been regulated by an authentic instrument.
Art.
1832-2
(Act n° 82-596
of 10 July 1982)
One spouse may not, under the penalty provided for in Article
1427, make use of community property in order to make a
contribution to a firm or acquire non-negotiable shares of a firm
without the other spouse being informed thereof and proof of it
being adduced in the instrument.
The capacity of member is
acknowledged to the spouse who makes the contribution or the
acquisition.
The capacity of member is also
acknowledged, for half of the shares subscribed or acquired, to
the spouse who gave notice to the firm of his or her intention to
be personally a member. Where he or she gives notice of his or her
intention at the time of the contribution or acquisition, the
acceptance or agreement of the members is effective as to both
spouses. Where the notice is after the contribution or
acquisition, the clauses requiring approval provided for this
purpose in the articles of association or of partnership are
available as against the spouse; at the time of the resolution on
approval, the member spouse does not participate in the vote and
his or her shares are not taken into account in calculating the
quorum and the majority.
The provisions of this Article shall
apply only to firms whose shares are not negotiable and only until
dissolution of the community.
Art.
1833
Every firm must have lawful objects and be formed in the
common interest of the members.
Art.
1834
The provisions of this Chapter shall apply to all firms and
companies, unless otherwise provided for by statute by reason of
their form or of their objects.
Art.
1835
The memorandum and the articles of association or of
partnership must be drawn up in writing. They shall determine, in
addition to the contributions of each member, the form, the
objects, the name, the registered place of business, the capital
of the firm, the duration of the firm and its rules of
functioning.
Art.
1836
Unless otherwise stipulated, the memorandum and the articles
may be amended only by unanimous agreement of the members.
In no case may the commitments of a
member be increased without his consent.
Art.
1837
Every firm whose registered place of business is located on the
French territory is subject to the provisions of French law.
Third parties may avail themselves
of the registered place of business determined in the articles,
but the latter is not available as against them where the actual
place of business is located elsewhere.
Art.
1838
The duration of a firm may not exceed ninety-nine
years.
Art.
1839
Where the memorandum and the articles do not contain all the
statements required by legislation or where a formality prescribed
by it for the formation of a firm was omitted or irregularly
completed, any person concerned may apply to the court for having
the regularization of the formation ordered, by the imposition of
a periodic penalty payment. The Government procurator’s office is
entitled to sue for the same purposes.
The same rules shall apply in case
of amendment of the memorandum and of the articles.
The action for purposes of
regularization provided for in paragraph 1 is time-barred after
three years from the registration of the firm or from the
recording of the instrument amending the memorandum or the
articles.
Art.
1840
The promoters, as well as the first members of the management,
direction and administrative organs, are jointly and severally
liable for the loss caused either by the want of a compulsory
statement in the memorandum or the articles, or by the omission or
irregular completion of a formality prescribed for the formation
of the firm.
In case of amendment of the
memorandum or of the articles, the provisions of the preceding
paragraph shall apply to the members of the management, direction
and administrative organs then in office.
The action is time-barred after ten
years from the day when one or the other, according to the
circumstances, of the formalities provided for in Article 1839,
paragraph 3, has been completed.
Art.
1841
Firms which have not been thereto authorized by statute are
prohibited to make public offerings or to issue negotiable
securities, on pain of invalidity of the contracts concluded or of
the securities issued.
Art.
1842
Firms other than the undisclosed partnerships referred to in
Chapter III enjoy juridical personality from their registration.
Until registration the relations
between members are governed by the firm agreement and by the
general principles of law which apply to contracts and
obligations.
Art.
1843
Persons who have acted on behalf of a firm in the making
before registration are liable for the obligations arising from
the acts so performed, jointly and severally where the firm is a
merchant, jointly in the other cases. A firm regularly registered
may take upon itself the undertakings entered into, which are then
deemed to have been contracted by it as from the
outset.
Art.
1843-1
A contribution of property or of a right subject to
registration in order to be effective as against third parties may
be registered before the registration of the firm and on condition
that the latter takes place. From the latter, the effects of the
formality retroact to the date of its fulfilment.
Art.
1843-2
The rights of each member in the capital of the firm are in
proportion to his contribution at the time of the formation of the
firm or in the course of its existence.
(Act n° 82-596 of 10 July
1982) Contributions in industry do not take part in the
formation of the capital of the firm but give rise to an assigning
of shares which entitles to the partition of profits and net
assets, on condition that the losses are contributed to.
Art.
1843-3
Each member is debtor towards the firm for all that he has
promised to contribute to it in kind, in money or in industry.
Contributions in kind shall be
executed by transfer of the corresponding rights and by the actual
availability of the property.
Where a contribution relates to
ownership, the contributor is warrantor towards the firm in the
same way as a seller towards his buyer.
Where it relates to enjoyment, the
contributor is warrantor towards the firm in the same way as a
lessor towards his lessee. However, where a contribution relating
to enjoyment concerns generic things or any other property bound
to be renewed during the duration of the firm, the contract
transfers to the latter the ownership of the property contributed,
on condition that he returns a same quantity, quality and value
thereof; in that case, the contributor is warrantor in the way
provided for in the preceding paragraph.
The member who was to contribute a
sum to the firm and has not done so, becomes by operation of law
and without notice, debtor for interests on that sum from the day
when it should have been paid and without prejudice to greater
damages, if there is occasion. “Furthermore, where calls for funds
in order to pay up the full amount of capital have not been made
within a statutory period, any person concerned may apply to the
president of the court who shall decide by way of interim relief
proceedings either to order the administrators, directors and
managers to carry out those calls for funds by imposing a periodic
penalty payment, or to appoint an agent in charge of carrying out
that formality” (Act n° 2001-420 of 15 May 2001).
The member who has bound himself to
contribute his industry to the firm shall account to it for all
the profits which he has gained through the activity which is the
subject matter of his contribution.
Art.
1843-4
In all cases considering the assignment of a member’s rights
in the firm, or the redemption of those rights by the firm, the
value of those rights shall be determined, in case of dispute, by
an expert appointed, either by the parties, or failing an
agreement between them, by order of the president of the court who
shall decide by way of interim relief proceedings and whose
judgment
shall be final.
Art.
1843-5
(Act n° 88-15
of 5 Jan. 1988)
In addition to an action for compensation for the loss
personally suffered, one or several members may institute an
action on behalf of the firm against the directors. The claimants
are entitled to seek compensation for the loss suffered by the
firm; in case of award, the damages shall be allocated to the
firm.
Shall be deemed not written any
clause of the memorandum or of the articles leading to subordinate
the bringing of an action on behalf of a firm to a preliminary
opinion or to the authorization of the meeting of the members or
which would imply anticipated waiver of the bringing of that
action.
No decision of a meeting of members
may lead to extinguish an action for compensation against the
directors for fault committed in the fulfilment of their duties.
Art.
1844
Every member has the right to participate in collective
decisions.
The co-owners of an undivided share
of the capital shall be represented by a single proxy, chosen
among the undivided owners or outside. In case of disagreement,
the proxy shall be designated in court, at the suit of the first
requesting party.
Where a share is burdened with a
usufruct, the right to vote belongs to the bare-owner, except for
decisions relating to the allocation of profits, in which case it
is reserved for the usufructuary.
The memorandum or the articles may
derogate from the two preceding paragraphs.
Art.
1844-1
Unless otherwise agreed, the share of each member in the
profits and his contribution to losses are determined in
proportion to his hare in the capital of the firm and the share of
a member who has contributed only his industry is equal to that of
the member who has contributed the least.
However, a stipulation by which a
member is allotted the whole of the profit gained by the firm, or
is released for the whole of the losses, the one by which a member
is excluded in whole from the profit or is liable for the whole of
the losses shall be deemed not written.
Art.
1844-2
(Act n° 78-753
of 17 July 1978)
A mortgage or any other security in rem on property of
the firm may be given by virtue of powers resulting from
resolutions or delegations established under private signatures,
although the mortgage or of the security must be granted by an
authentic instrument.
Art.
1844-3
The proper transformation of a firm into a firm of another
type does not involve the creation of a new juridical person. It
shall be the same as to extension of duration or any other
amendment of the memorandum or articles.
Art.
1844-4
A firm, even in liquidation, may be absorbed by another firm
or participate in the formation of a new firm, by way of merger.
It may also transfer its patrimony by way of split-off to existing
or new firms.
Those dealings may occur between firms of different types.
They shall be decided, by each firm concerned, in the way provided
for as to amendment of the memorandum or articles.
Where the dealing
involves the creation of new firms, each of them shall be formed
in accordance with the rules appropriate to the type of firm
adopted.
Art. 1844-5
“The reuniting of all the shares of the capital into a single
hand does not involve the dissolution of the firm by operation of
law. Any person concerned may apply for that dissolution where the
situation has not been regularized within the period of one year.
The court may grant the firm a maximum period of six months to
regularize the situation. It may not rule for dissolution where,
on the day when it decides, that regularization has occurred”
(Act n° 81-1161 of 30 Dec. 1981).
The fact that the usufruct of all
the shares of capital belongs to the same person has no
consequence as to the existence of the firm.
“In case of
dissolution, it involves the universal transfer of the patrimony
of the firm to the sole member, without there being occasion for
liquidation. The creditors may object to the dissolution within a
period of thirty days after the recording of the latter. A
judicial decision shall dismiss the objection or order either the
payment of the claims, or the constitution of warranties where the
firm offers any and where they are considered sufficient. The
transfer of the patrimony is carried out and the juridical person
vanishes only at the end of the period for objection or, if there
is occasion, where the objection has been dismissed in first
instance or where the payment of the claims has been made or the
warranties constituted” (Act n° 88-15 of 5 Jan.
1988)
“The provisions of paragraph
3 shall not apply to firms whose sole member is a natural person”
(Act n° 2001-420 of 15 May 2001).
Art. 1844-6
An extension of the duration of a firm
must be decided by a unanimous vote of the members, or, where the
memorandum or articles so provide, by the majority required for
their amendment.
One year at least before the date of the expiry of the firm, the
opinion of the members must be taken for the purpose of deciding
whether the duration of the firm must be extended.
Failing which, any member may apply to the president of the court
ruling by interim ex parte order, for the appointment of a
judicial agent in charge of instituting the consultation provided
for above.
Art. 1844-7
A firm comes to an
end:
1° By the expiry of
the time for which it was formed, except for an extension of
duration decided in accordance with Article
1844-6;
2° By the
achievement or the extinction of its objects;
3° By annulment of the firm
agreement;
4° By anticipated
dissolution decided by the members;
5° By anticipated
dissolution ordered by the court on application of a member for
just reasons, notably in case of non-performance of his
obligations by a member, or of disagreement between members which
paralyses the running of the firm;
6° By anticipated
dissolution ordered by the court in the case provided for in
Article 1844-5;
7° “By the effect of a judgment ordering the
winding-up or total transfer of the assets of the firm” (Act n°
88-15 of 5 Jan. 1988);
8° For any other reason specified in the
memorandum or articles.
Art. 1844-8
The dissolution of a firm involves its liquidation, except for
the cases provided for by Article 1844-4 “and by Article 1844-5,
paragraph 3” (Act n° 88-15 of 5 Jan. 1988). It is effective
against third persons only after it has been recorded.
A liquidator shall
be appointed in accordance with the provisions of the memorandum
or of the articles. Where they are silent, he shall be appointed
by the members or, where the latter were unable to make that
appointment, by order of the court. A liquidator may be dismissed
in the same manner. The appointment and the dismissal are
effective against third persons only after they have been
recorded. Neither the firm nor third persons may, in order to
elude their undertakings, avail themselves of an irregularity in
the appointment or dismissal of a liquidator, where the latter has
been duly recorded.
The juridical personality of a firm still exists for the needs of
liquidation until recording of its closing.
Where the closing
of a liquidation has not happened within three years after the
dissolution, the Government procurator’s office or any person
concerned may refer the matter to the court which shall have the
liquidation instituted or completed, where it has begun.
Art. 1844-9
After paying the debts and reimbursing
the capital of the firm, the partition of the assets shall be made
among the members in the same proportion as their participation in
the profits, except for clause or agreement to the
contrary.
The rules relating
to the partition of successions, including preferential allotment,
shall apply to partitions between members of a firm or company.
However, the
members may lawfully decide, either in the memorandum or articles,
or by a separate resolution or instrument, that certain property
shall be allotted to certain members. Failing which, any property
contributed which is found in kind in the assets to be partitioned
shall be allotted, on his request and on condition of adjustment,
if there is occasion, to the member who had contributed it. That
faculty shall be exercised before any other right to a
preferential allotment.
All members, or
some of them only, may also remain in undivided ownership of all
or part of the property of the firm. Their relationships as to
that property shall be then regulated, at the close of the
liquidation, by the provisions relating to undivided
ownership.
Art. 1844-10
Annulment of a firm may result only
from the infringement of the provisions of Articles 1832, 1832-1,
paragraph 1, and 1833 or from one of the grounds for annulment of
contracts in general.
Any clause of the memorandum or of the articles contrary to a
mandatory provision of this Title, the sanction of whose
infringement is not annulment of the firm, shall be deemed not
written.
Annulment of
transactions or resolutions of the organs of a firm may result
only from the infringement of a mandatory provision of this Title
or from one of the grounds for annulment of contracts in
general.
Art. 1844-11
An action for annulment is
extinguished where the ground for annulment has ceased to exist on
the day when the court rules on the merits in first instance,
unless that annulment is based on the wrongfulness of the objects
of the firm.
Art. 1844-12
In case of annulment of a firm or of transactions or resolutions
subsequent to its formation, based on a defect in consent or on
the disability of a member, and where regularization may take
place, any person having an interest therein may put on notice the
person who is able of doing so, either to regularize, or to sue
for annulment within a period of six months on pain of being
time-barred. The firm shall be informed of that putting on
notice.
The firm or a
member may submit to the court seized within the period provided
for in the preceding paragraph, any measure appropriate to clear
away the interest of the plaintiff, particularly through the
redemption of his rights in the firm. In that case the court may,
either rule for annulment or make compulsory the proposed measure
where they have been previously adopted by the firm in the
conditions provided for the amendments of the memorandum or of the
articles. The vote of the member whose redemption of the rights is
applied for is of no effect on the decisions of the firm.
In case of dispute,
the value of the rights in the firm to redeem from a member shall
be determined in accordance with the provisions of Article
1843-4.
Art. 1844-13
A court to which an action for annulment has been referred,
may, even of its own motion, fix a period to allow for the remedy
of the invalidities. It may not order annulment less than two
months after the date of the originating process.
Where, in order to remedy an invalidity, a meeting must be
convened, or a consultation of the members take place, and where
proof is given of a proper notice convening that meeting or of the
sending to the members of the text of the proposed resolutions
with the documents which must be communicated to them, the court
shall grant by judgment the period necessary for the members to
come to a decision.
Art.
1844-14
The actions for annulment of a firm or of transactions or
resolutions subsequent to its formation are time-barred after
three years from the day when annulment was incurred.
Art.
1844-15
Where annulment of a firm is ordered, it puts an end, without
retroactivity, to the performance of the contract.
As regards the juridical person which may have come into being, it
produces the effects of a judicially ordered
dissolution.
Art.
1844-16
Neither the firm nor the members may avail themselves of an
annulment with regard to third parties in good faith. However,
annulment resulting from a disability or from one of the defects
in consent is available even against third parties by the person
under a disability and his statutory representatives, or by the
member whose consent was abused by error, deception or
duress.
Art.
1844-17
An action for compensation based on the annulment of the firm or
of transactions and resolutions subsequent to the formation is
time-barred after three years from the day when the judgment of
annulment has become res judicata.
The vanishing of the ground for annulment is not a bar to the
bringing of an action for damages for the purpose of compensating
the loss caused by the defect by which the firm, the transaction
or the resolution was vitiated. That action is time-barred after
three years from the day when the invalidity was
remedied.
CHAPTER II - OF PARTNERSHIP FOR NON-COMMERCIAL
PURPOSES
Art. 1845
The provisions of this Chapter shall
apply to all firms for non-commercial purposes, unless they are
derogated from by the particular statutory status to which some of
them are subject.
Have non-commercial
character all firms to which legislations does not attribute
another character by reason of their form, nature or objects.
Art. 1845-1
The capital of a partnership shall be
divided into equal shares.
(Act n° 2001-1168 of 11 Dec. 2001) The provisions of
Chapter I of Title III of Book II of the Commercial Code relating
to the variable capital of companies shall apply to partnerships
for non-commercial purposes.
Section II –
Of Management
Art. 1846.-A partnership shall be managed by one
or several persons, partners or not, appointed either by the
articles of partnership, or by a special act, or by a resolution
of the partners.
The articles shall
fix the rules for the designation of the manager or managers and
the method of organization of the management.
Unless otherwise
provided in the articles, a manager shall be appointed by a
resolution of the partners representing more than half of the
shares of the partnership.
Where the articles
are silent, and where the partners have not decided otherwise at
the time of the appointment, the managers shall be deemed
appointed for the duration of the partnership.
Where, for whatever
reason, a partnership is deprived of a manager, any partner may
apply to the president of the court deciding by interim relief
order for the designation of a judicial agent in charge of
convening a meeting of the partners for the purpose of appointing
one or several managers.
Art. 1846-1
Apart from the cases referred to in
Article 1844-7, a partnership comes to an end through anticipated
dissolution which a court may order on application of any person
concerned, where it has been devoid of manager for more than one
year.
Art. 1846-2
The appointment and cessation of
duties of the managers must be recorded.
Neither a
partnership nor third parties may avail themselves of an
irregularity in the appointment of managers or in the cessation of
their duties in order to elude their undertakings, where those
decisions have been duly recorded.
Art. 1847
Where a juridical person carries on
the management, its managers are subject to the same conditions
and obligations and incur the same civil and penal liabilities as
though they were managers on their own behalf, without prejudice
to the joint and several liability of the juridical person which
they direct.
Art. 1848
In the relationships between partners,
a manager may do all the acts of management which the interest of
the partnership requires.
Where there are
several managers, they exercise those powers separately, except
for the right which belongs to each of them to object to a
transaction before it is concluded.
All of which
failing a special provision in the articles on the method of
administration.
Art. 1849
In the relationships with third
parties, a manager binds the partnership through transactions
which fall under the objects of the partnership.
In case of
plurality of managers, they possess separately the powers provided
for in the preceding paragraph. An objection made by one manager
to the transactions of another manager is of no effect with regard
to third parties, unless it is proved that they have had knowledge
of it.
Clauses of the
articles limiting the powers of the managers may not be invoked
against third parties.
Art. 1850
Each manager is liable individually
towards the partnership and towards third parties, either for
violations of statutes and regulations, or for an infringement of
the articles, or for faults committed in his
management.
Where several
managers have participated in the same acts, their liability is
joint and several towards third parties and partners.
However, in their
relationships between them, the court shall determine the
contributory share of each in the compensation for the
loss.
Art. 1851
Unless the articles provide otherwise,
a manager may be dismissed by a resolution of the partners
representing more than half of the shares of the partnership.
Where a dismissal is decided without just reason, it may give rise
to damages
A manager may also
be dismissed by the courts for a legitimate cause, on application
of any partner.
Unless otherwise
provided, the dismissal of a manager, whether he is a partner or
not, does not involve dissolution of the partnership. Where the
dismissed manager is a partner, he may, unless the articles
provide otherwise, or the other partners decide anticipated
dissolution of the partnership, withdraw from it in the way
provided for in Article 1869, paragraph 2.
Section III -
Of Collective Resolutions
Art. 1852
Resolutions which exceed the powers
conferred upon managers shall be passed according to the
provisions of the articles or, failing such provisions, by the
partners unanimously.
Art. 1853
Resolutions shall be passed by the
partners convened in a meeting. The articles may also provide that
they will result from a written consultation.
Art. 1854
Resolutions may also result from the
consent of all the partners expressed in an instrument.
Section
IV- Of Notice to Partners
Art. 1855
The partners are entitled to obtain,
at least once a year, notice of the books and documents of the
partnership, and to ask questions in writing on the management of
the partnership, to which a reply must be made in writing within
the period of one month.
Art. 1856
The managers must, at least once in
the year, account for their management to the partners. That
statement of accounts must include a comprehensive written report
on the activity of the partnership during the year or the
accounting period elapsed including a statement of the profits
realized or foreseeable and of the losses incurred or
foreseen.
Section V – Of
the Liability of Partners with Regard to Third
Parties
Art. 1857
With regard to third parties, partners
are liable indefinitely for debts of the partnership in proportion
to their share in the capital of the partnership on the date when
falling due or on the day of cessation of payments.
A partner who has
contributed only his industry is liable like the one whose
contribution in the capital is the smallest.
Art. 1858
Creditors may sue a partner for
payment of the debts of the partnership only after suing first and
vainly the juridical person.
Art. 1859
All actions against partners who are
not liquidators or their heirs and assigns are time-barred after
five years from the time when the dissolution of the partnership
has been recorded.
Art. 1860
Where there is insolvency, personal
bankruptcy, judicial liquidation or judicial arrangement befalling
a partner, unless the others unanimously decide to dissolve the
partnership by anticipation or that dissolution is provided for by
the articles, reimbursement shall be made, subject to the
conditions set out in Article 1843-4, of the rights in the
partnership of the party concerned, who then loses the status of
partner.
Section VI – Of
the Transfer of Shares of the Capital
Art. 1861
Shares of the capital may be
transferred only with the approval of all the partners.
The articles may
however agree that the approval will be obtained by a majority
which they fix, or that it may be granted by the managers. They
may also dispense from approval the transfers made to partners or
to the spouse of one of them. Unless otherwise provided by the
articles, transfers made to ascendants or descendants of the
transferor are not subject to approval.
Notice shall be
given of the planned transfer, with request for approval, to the
partnership and to each one of the partners. Notice shall be given
only to the partnership where the articles provide that the
approval may be granted by the managers.
Where two spouses
are simultaneously members of one partnership, the transfers made
by one of them to the other must, in order to be valid, result
from a notarial instrument or from an instrument under private
signature having acquired an undisputable date otherwise than by
the death of the transferor.
Art. 1862
Where several partners express their
wish to acquire, they are, unless there is a clause or an
agreement to the contrary, deemed purchasers in proportion to the
number of shares which they held previously.
Where no partner
stands as purchaser, the partnership may have the shares acquired
by a third person designated by the other partners unanimously or
according to the methods provided for by the articles. The
partnership may also initiate the redemption of the shares for the
purpose of cancelling them.
The transferor
shall be given notice of the names of the proposed purchaser or
purchasers, partners or third persons, or of the offer of
redemption by the partnership, as well as of the price offered. In
case of dispute on the price, the latter shall be fixed in
accordance with the provisions of Article 1843‑4, the whole
without prejudice to the right of the transferor to keep his
shares.
Art. 1863
Where no offer of redemption is made
to the transferor within a period of six months after the last of
the notifications provided for in Article 1861, paragraph 3,
approval of the transfer shall be deemed granted, unless the other
partners decide, within the same period, the anticipated
dissolution of the partnership.
In the latter case,
the transferor may cause that decision to lapse by making it known
that he waives the transfer within a period of one month after the
said decision.
Art. 1864
The provisions of the two preceding
Articles may be derogated from only in order to modify the period
of six months stared in Article 1863, paragraph 1, and provided
the period stated in the articles be not over one year or
below one month.
Art. 1865
A transfer of shares of capital must
be drawn up in writing. It shall be made invokable against the
partnership under the forms provided for in Article 1690 or, where
the articles so stipulate, by transfer on the registers of the
partnership.
It may be invoked
against third persons only after completion of those formalities
and after recording.
Art. 1866
Shares of the capital may be the
subject of a pledge attested, either by an authentic instrument,
or by an instrument under private signature served upon the
partnership or accepted by it in an authentic instrument and
giving rise to a recording whose date determines the rank of the
pledgee creditors. Those whose instruments are recorded on the
same day rank equally.
The prior charge of
a pledgee creditor stands on the pledged rights on the capital
through the sole fact of recording the pledge.
Art. 1867
Any partner may obtain from the other
partners their approval of a plan of pledge under the same
conditions as their approval of a transfer of shares.
A consent given to
a plan of pledge involves approval of the transferee in case of
forced sale of the shares of capital on condition that notice of
the sale be given to the partners and the partnership at least one
month before the sale.
Each partner may substitute himself for the purchaser within a
period of five clear days from the sale. Where several partners
exercise that faculty, they shall be, unless there is a clause or
an agreement to the contrary, deemed purchasers in proportion to
the number of shares which they held previously. Where no partner
exercises that faculty, the partnership may redeem the shares
itself, for the purpose of cancelling them.
Art. 1868
Notice must be given likewise of a
forced sale which does not result from a pledge to which the other
partners have given their approval, one month before the sale to
the partners or to the partnership.
The partners may,
within that period, decide to dissolve the partnership or to
acquire the shares in the way provided for in Articles 1862 and
1863.
Where a sale has
taken place, the partners or the partnership may exercise the
faculty of substitution which is theirs under Article 1867. The
non-exercise of that faculty involves approval of the
purchaser.
Section
VII – Of the Withdrawal or Death of a
Partner
Art. 1869
Without prejudice to the rights of
third persons, a partner may withdraw totally or partially from
the partnership, subject to the conditions laid down in the
articles or, failing which, after authorization given by a
unanimous resolution of the other partners. That withdrawal may
also be authorized by a judicial decision for just
reasons.
Unless Article
1844-9, paragraph 3, applies, the partner who withdraws is
entitled to reimbursement of the value of his rights in the
partnership, fixed in accordance with Article 1843-4, failing an
amicable agreement.
Art. 1870
A partnership is not dissolved by the
death of a partner, but continues with his heirs or legatees,
unless the articles provide that they must be approved of by the
partners.
It may however be
agreed that the death will involve dissolution of the partnership
or that it will continue with only the surviving
partners.
It may also be
agreed that the partnership will continue either with the
surviving spouse, or with one or several of the heirs, or with any
other person designated by the articles or where the latter so
authorize, by a testamentary disposition.
Unless the articles
provide otherwise, where the succession devolves upon a juridical
person, the latter may become a partner only with the approval of
the other partners, granted under the conditions provided for by
the articles, or failing which, by unanimous agreement of the
partners.
Art. 1870-1
Heirs or legatees who do not become
partner are entitled only to the value of the shares in the
capital of their predecessor in title. That value must be paid to
them by the new holders of the shares or by the partnership itself
where it has redeemed them for the purpose of cancelling
them.
The value of these shares in the capital shall be determined on
the day of death in the conditions provided for in Article
1843-4.
CHAPTER III - OF
UNDISCLOSED PARTNERSHIP
Art. 1871
Partners may agree that the
partnership will not be registered. The partnership is then called
“undisclosed partnership”. It is not a juridical person and is not
subject to registration.
The partners freely
agree upon the objects, operation and methods of the undisclosed
partnership, provided that the mandatory provisions of Articles
1832, 1832-1, 1833, 1836, paragraph 2, 1841, 1844, paragraph 1 and
1844-1, paragraph 2, be not derogated from.
Art. 1871-1
Unless a different organization has been provided
for, the relationships between partners are governed, as may be
thought proper, either by the provisions which apply to
partnerships for non-commercial purposes, where the firm is of a
non-commercial character, or, where it is of a commercial
character, by those which apply to partnerships for commercial
purposes.
Art. 1872
With regard to third parties, each
partner remains owner of the property which he placed at the
disposal of the partnership.
Shall be deemed
undivided between the partners the property acquired by investment
or re-investment of undivided funds during the partnership and
that which was undivided before being placed at the disposal of
the partnership.
It shall be
likewise for that which the partners have agreed to place in
undivided ownership.
It may furthermore
be agreed that one of the partners is, with regard to the others,
owner of all or part of the property which he acquires with a view
to the carrying out of the objects of the
partnership.
Art. 1872-1
Each partner contracts in his own name and is alone bound with
regard to third parties.
However, where the
undisclosed partners act as partners to third parties’ knowledge,
each one of them is bound with regard to the latter for the
obligations arising from acts performed in that capacity by one of
the others, jointly and severally where the partnership is a
merchant, jointly, in the other cases.
It shall be the
same as to a partner who, through his interference, has led the
contracting party to believe that he intended to bind himself
towards him or of whom it is proved that the undertaking has
turned to his benefit.
In all cases, as to
property deemed undivided under Article 1872, paragraph 2 and 3,
shall apply in the relationships with third parties, either the
provisions of Chapter VI of Title I of Book III of this Code, or,
where the formalities provided for in Article 1873-2 have been
completed, those of Title IX bis of this Book, all the
partners being then, unless otherwise agreed, deemed managers of
the undivided ownership.
Art. 1872-2
Where an undisclosed partnership is of
indefinite duration, its dissolution may result at any time from a
notice served by one of them on all the partners, provided that
the notice be in good faith and not made inopportunely.
Unless otherwise
agreed, no partner may request partition of the undivided property
under Article 1872 so long as the partnership is not
dissolved.
Art. 1873
The provisions of this Chapter shall
apply to de facto partnerships.
TITLE IX bis
OF AGREEMENTS RELATING TO THE EXERCISE OF UNDIVIDED
RIGHTS
(Act n° 76-1286 of 31 Dec.
1976)
Art. 1873-1
The persons having rights to be
exercised on undivided property, as owners, bare owners or
usufructuaries may enter into agreements relating to the exercise
of those rights.
CHAPTER I
– OF AGREEMENTS RELATING TO THE EXERCISE OF UNDIVIDED RIGHTS
IN THE ABSENCE OF A USUFRUCTUARY
Art. 1873-2
Where they all consent thereto,
undivided co-owners may agree to remain in undivided ownership.
On pain of
annulment, the agreement must be drawn up in an instrument
including the description of the undivided property and indication
of the shares belonging to each undivided owner. Where the
undivided property includes claims, the formalities of Article
1690 shall take place; where it includes immovables, the
formalities of land registration shall take
place.
Art. 1873-3
The agreement may be concluded
for a determined duration which may not exceed five years. It may
be renewed by an express decision of the parties. A partition may
be instigated before the agreed term only where there are proper
reasons for it.
The agreement may
also be concluded for an indeterminate duration. In that case, a
partition may be instigated at any time, provided it is not in bad
faith or inopportune.
It may be decided
that an agreement for a determined duration will be renewed by
tacit extension of the period, for a determined or indeterminate
duration. Failing such agreement, the undivided ownership shall be
governed by Articles 815 and following at the expiry of the
agreement for a determined duration.
Art. 1873-4
The capacity or power to dispose of
the undivided property is required for an agreement designed
to maintain undivided ownership.
The agreement may,
however, be concluded on behalf of a minor, by his statutory
representative alone; but in that case, the minor, become of age,
may put an end to it, whatever its duration may be, within the
year following his majority.
[repealed]
Art. 1873-5
The undivided co-owners may appoint
one or several managers, chosen from among themselves or not. The
methods of appointing and dismissing a manager may be determined
by a unanimous decision of the undivided owners.
Failing such an
agreement, a manager taken from among the undivided owners may be
dismissed from his duties only by a unanimous decision of the
other undivided owners.
A manager who is
not an undivided owner may be dismissed in the way agreed upon
among his principals or, failing which, by a decision taken by a
majority of the undivided owners as to number and shares.
In all cases,
dismissal may be ordered by the court on application of one
undivided owner where the manager, through his mismanagement,
imperils the interests of the undivided
ownership.
Where a dismissed
manager is an undivided owner, the agreement shall be deemed
concluded for an indeterminate duration from his dismissal.
Art. 1873-6
A manager represents the undivided
owners within his authority, either for transactions of civil
life, or in court as plaintiff or defendant. He shall give, in a
merely declaratory way, the names of all the undivided owners in
the first procedural document.
A manager shall
administer the undivided ownership and exercises for this purpose
the powers “conferred on each spouse” (Act n° 85-1372 of 23
Dec. 1985) on community property. He may, however, dispose of
tangible movables only for the needs of a normal use of the
undivided ownership, or also where things difficult to preserve or
subject to decay are concerned. Any clause extending the authority
of a manager shall be deemed not written.
Art. 1873-7
A manager shall exercise the authority
given by the preceding Article even where there is a person under
a disability among the undivided owners.
Nevertheless,
Article 456, paragraph 3, shall apply to leases granted in the
course of an undivided ownership.
Art. 1873-8
Decisions which exceed the
authority of a manager shall be passed unanimously, except for the
manager, where he is himself an undivided owner, to avail himself
of the remedies provided for by Articles 815-4, 815-5 and
815-6.
Where there are
minors or adults under a disability among the undivided owners,
the decisions referred to in the preceding paragraph give rise to
the application of the rules of protection provided for in their
favour.
It may be agreed
between the undivided owners that in the absence of persons under
a disability certain categories of decisions will be passed
otherwise than unanimously. However, no undivided immovable may be
transferred without the agreement of all the undivided owners
unless it is under Articles 815-4 and 815-5 above.
Art. 1873-9
An agreement of undivided ownership
may regulate the methods of administration in case of a plurality
of managers. Failing special stipulations, the latter hold
separately the authgority provided for by Article 1873-6, subject
to the right of each to object to any transaction before it is
concluded.
Art. 1873-10
Unless otherwise agreed, a manager is
entitled to remuneration for his work. The terms of it shall be
fixed by the undivided owners, to the exclusion of the party
concerned, or, failing which, by the president of the tribunal
de grande instance who shall give a provisional
ruling.
A manager is liable
as an agent for the faults he commits in his management.
Art. 1873-11
Each undivided owner may require
notice of all documents relating to the management. A manager
must, once a year, account for his management to the undivided
owners. On that occasion, he shows in writing the profits made and
the losses incurred or foreseeable.
Each undivided
owner is obliged to participate in the expenses for preservation
of the undivided property. Failing a special agreement, Articles
815-9, 815-10 and 815-11 of this Code shall apply to the exercise
of the right of use and enjoyment, as well as to the sharing of
profits and losses.
Art. 1873-12
In case of transfer of all or part of
the rights of an undivided owner in the undivided property, or in
one or several items of that property, the undivided co-owners
enjoy the rights of pre-emption and substitution provided for by
Articles 815-14 to 815-16 and 815-18 of this Code.
The agreement shall
be deemed concluded for an indeterminate duration where, for any
reason whatever, an undivided share devolves upon a person not
belonging to the undivided ownership.
Art. 1873-13
The undivided owners may agree that
upon the death of one of them, each survivor may acquire the share
of the deceased or that the surviving spouse, or any other
designated heir may have it allotted to him “on condition that he
accounts for it to the succession according to its value at the
time of the acquisition or of the allotment” (Act n° 78-627 of
10 June 1978).
Where several
undivided owners or several heirs simultaneously exercise their
faculty of acquisition or allotment, they shall be deemed, unless
otherwise agreed, to acquire together the share of the deceased in
proportion to their respective rights in the undivided ownership
or the succession.
The provisions of
this Article may not prejudice the application of the provisions
of Articles 832 to 832-3.
Art. 1873-14
A faculty of acquisition or allotment
lapses where its beneficiary has not exercised it through notice
served on the surviving undivided owners or on the heirs of the
predeceaser within the period of one month after the day when he
has been given notice to come to a decision. That notice may not
itself take place before the expiry of the period provided for in
the Title Of Successions for making an inventory and
deliberating.
Where no faculty of
acquisition or allotment has been provided for, or where it has
lapsed, the share of the deceased falls to his heirs or legatees.
In such case, the agreement of undivided ownership shall be deemed
concluded for an indeterminate duration from the day of the
opening of the succession.
Art. 1873-15
Art. 815-17 shall apply to creditors
of an undivided ownership, as well as to personal creditors of the
undivided owners.
However, the latter
may instigate partition only in the cases where their debtor could
himself instigate it. In the other cases, they may sue for seizure
and sale of the share of their debtor in the undivided ownership
by complying with the formalities provided for by the Code of
Civil Procedure. The provisions of Article 1873-12 shall then
apply.
CHAPTER II – OF
AGREEMENTS RELATING TO THE EXERCISE OF UNDIVIDED RIGHTS IN THE
PRESENCE OF A USUFRUCTUARY
Art. 1873-16
Where undivided property is
burdened with a usufruct, agreements, subject as a rule to the
provisions of the preceding Chapter, may be concluded, either
between the bare owners, or between the usufructuaries, or between
the ones and the others. There may also be an agreement between
those who are in undivided ownership as to enjoyment and the one
who is bare owner of the whole property, as well as between a
universal usufructuary and the bare owners.
Art. 1873-17
Where the usufructuaries were not
parties to the agreement, third parties who have dealt with the
manager of an undivided ownership may not avail themselves of the
powers which would have been granted to him by the bare owners to
the prejudice of the rights of usufruct.
Art. 1873-18.-Where an agreement concluded
between usufructuaries and bare owners provides that decisions
will be passed by a majority in number and in shares, the rights
to vote attaching to shares is divided by halves between the
usufruct and the bare ownership, unless the parties agreed
otherwise.
Any expense
exceeding the obligations of a usufructuary, such as defined in
Articles 582 and following, binds him only with his consent given
in the agreement itself or through a later instrument.
The transfer of
full ownership of the undivided property may not be made without
the consent of the usufructuary, except for the case where it is
induced by the creditors entitled to sue for sale.
TITLE X
OF LOANS
Art. 1874
There are two kinds of
loans:
That of things
which can be used without being destroyed,
And that of things
which are consumed by the use which is made of
them.
The first kind is
called loan for use or
commodate;
The second is
called loan for consumption , or simply
loan.
CHAPTER I - OF LOANS FOR USE OR
COMMODATES
Section I
– Of the Nature of a Loan for Use
Art. 1875
A loan for use or commodate is a contract by which one of the
parties delivers to the other a thing to be used, on condition
that the borrower returns it after making use of it.
Art. 1876
Such loan is essentially
gratuitous.
Art. 1877
The lender remains the owner of the
thing loaned.
Art. 1878
Everything which may be the subject of
legal transactions between private individuals, and which is not
consumed by use may be the object of such an agreement.
Art. 1879
Undertakings which are formed by a
commodate pass to the heirs of the person who lends, and to the
heirs of the person who borrows;
But where a loan
was made only on account of the borrower, and to him personally,
then his heirs may not continue to enjoy the thing
loaned.
Section II
– Of the Undertakings of the Borrower
Art. 1880
The borrower is bound to take care of
the keeping and preservation of the thing loaned like a prudent
owner. He may use it only for the use determined by its nature or
by the agreement; all of which, on pain of damages, if there is
occasion.
Art. 1881
Where the borrower employs the thing
for another use, or for a longer time than he ought, he is liable
for the loss occurred, even through a fortuitous event.
Art. 1882
Where the thing loaned perishes through a fortuitous event of
which the borrower could have preserved it by making use of his
own, or where, being able to save only one of them, he preferred
his own, he is liable for the loss of the other.
Art. 1883
Where the thing has been appraised
when loaned, the loss which happens, even through a fortuitous
event, falls on the borrower, unless otherwise agreed.
Art. 1884
Where the thing deteriorates through
the sole effect of the use for which it was borrowed, and without
any fault on the part of the borrower, he is not liable for the
deterioration.
Art. 1885
The borrower may not retain the thing
to offset what the lender owes him.
Art. 1886
Where the borrower has made some
expense in order to use the thing, he may not reclaim
it.
Art. 1887
Where several persons have jointly
borrowed the same thing, they are jointly and severally liable
towards the lender.
Section III –
Of the Undertakings of One who Lends for
Use
Art. 1888
The lender may take back the thing
loaned only after the term agreed upon or, failing an agreement,
after it has served the use for which it was borrowed.
Art. 1889
Nevertheless, where, during that
period, or before the need of the borrower has ceased, the lender
happens to be in a pressing and unforeseen need of the thing, the
judge may, according to the circumstances, compel the borrower to
return it to him.
Art. 1890
Where, during the term of the
loan, the borrower has been compelled, for the preservation of the
thing, to some extraordinary expense, necessary and so urgent that
he was no able to inform the lender thereof, the latter is liable
to reimburse him.
Art. 1891
Where the thing loaned has such
defects that it may cause harm to the person who uses it, the
lender is liable, where he knew of the defects and did not warn
the borrower.
CHAPTER II – OF LOANS FOR CONSUMPTION OR SIMPLE
LOANS
Section
I – Of the Nature of the Loan for
Consumption
Art. 1892
A loan for consumption is a contract
by which one of the parties delivers to the other a certain
quantity of things which are consumed by use, on condition that
the latter shall return as much to him in the same kind and
quality.
Art. 1893
Through such a loan, the borrower
becomes the owner of the thing loaned; and the loss falls upon
him, in whatever manner it occurs.
Art. 1894
Things which, although of the same kind, differ individually, such
as animals, may not be given by way of loan of consumption:
it is then a loan for use.
Art. 1895
The obligation which results from a loan of money is always for
the numerical sum stated in the contract.
Where there is a
rise or a fall in currency before the time of payment, the debtor
must return the numerical sum loaned, and must do so only in the
currency having legal tender at the time of the
payment.
Art. 1896
The rule laid down in the preceding
Article shall not apply, where the loan was made in
bullions.
Art. 1897
Where bullions or commodities have
been loaned, whatever the rise or fall in their price may be, the
debtor shall always return the same quantity and quality, and
return only that.
Section II –
Of the Obligations of the Lender
Art. 1898
In a loan for consumption, the lender
is held to the liability established by Article 1891 for a loan
for use.
Art. 1899
The lender may not claim the things
loaned back before the agreed time.
Art. 1900
Where no time has been fixed for
restitution, the judge may allow the borrower a period according
to the circumstances.
Art. 1901
Where it has only been agreed that the
borrower would pay when he could, or he had the means, the judge
shall fix a time for the payment, according to the circumstances.
Section III – Of
the Undertakings of the Borrower
Art. 1902
The borrower is bound to return the
things loaned, in the same quantity and quality and at the time
agreed.
Art. 1903
Where he is unable to do so, he is
bound to pay their value taking into account the time and the
place where the thing was to be returned according to the
agreement.
Where those time
and place have not been regulated, payment shall be made at the
price of the time and the place where the loan was
made.
Art. 1904
(Act of 7 April 1900)
Where the borrower does not return the
things loaned or their value at the agreed time, he owes
interest thereon from the day of the notice or of the judicial
claim.
CHAPTER
III – OF LOANS AT INTEREST
Art. 1905
It is lawful to stipulate interest for
a simple loan, either of money, or of commodities, or of other
movable things.
Art. 1906
The borrower who has paid interest
which was not stipulated may neither reclaim it, nor appropriate
it to the capital.
Art. 1907
Interest is
statutory or conventional. Statutory interest is fixed by
statute1.
Conventional interest may exceed statutory interest whenever
a statute does not so prohibit2.
The rate of
conventional interest must be fixed in writing.
1
Monetary and
Financial Code Art. L. 313-2
2
Consumer Code
Art. L. 313-1 to L. 313-3
Art. 1908
A receipt for capital given without
reservations as to the interest gives rise to a presumption of
payment of the latter and operates discharge of
it.
Art. 1909
Interest may be stipulated upon a
capital which the lender undertakes not to reclaim.
In that case, the
loan takes the name of settlement of an annuity.
Art. 1910
That annuity may be settled in two ways, perpetually or for
life.
Art. 1911
A perpetual annuity is essentially
redeemable.
The parties may
agree only that the redemption will not take place before a time
which may not exceed ten years, or without notification has
been given to the creditor at the period of notice which they have
determined.
Art. 1912
The debtor of an annuity settled as
perpetual may be compelled to redeem it:
1° Where he ceases
to perform his obligations during two years;
2° Where he fails
to furnish the lender with the security promised by the
contract.
Art. 1913
The capital of an annuity settled as
perpetual becomes also due in case of [judicial arrangement] or
insolvency of the debtor.
Art. 1914
The rules relating to life annuities
are laid down in the Title Of Aleatory
Contracts.
TITLE XI
OF DEPOSITS AND OF SEQUESTRATIONS
CHAPTER I -
OF DEPOSIT IN GENERAL AND OF ITS DIFFERENT
KINDS
Art. 1915
As a rule, a deposit is a transaction
by which one receives the thing of another, on condition of
keeping it and returning it in kind.
Art. 1916
There are two kinds of deposits:
actual deposit and sequestration.
CHAPTER II - OF ACTUAL DEPOSITS
Section
I - Of the Nature and Essence of the Contract of
Deposit
Art. 1917
An actual deposit is a contract
essentially gratuitous.
Art. 1918
It may have as its object only movable things.
Art. 1919
It is complete only by the actual or
symbolic handing over of the thing deposited.
A symbolic handing
over is sufficient where the depositary is already in possession,
in some other capacity, of the thing which one agrees to leave
with him as a deposit.
Art. 1920
Deposit is voluntary or
necessary.
Section II
- Of Voluntary Deposits
Art. 1921
A voluntary deposit is concluded
by the reciprocal consent of the person who makes the deposit and
of the one who receives it.
Art. 1922
A voluntary deposit may only be made
by the owner of the thing deposited or with his express or tacit
consent.
Art. 1923 [repealed]
Art. 1924
“Where a deposit which exceeds the
figure provided for in Article 1341 is not proved in writing”
(Act n° 80-525 of 12 July 1980), the one who is sued as
depositary is believed on his declaration, either as to the fact
itself of the deposit, or as to the thing which was its object, or
as to the fact of its restitution.
Art. 1925
A voluntary deposit may take place
only between persons capable of contracting.
Nevertheless, where
a person capable of contracting accepts a deposit made by a person
under a disability, he is liable for all the obligations of a true
depositary; he may be sued by the guardian or administrator of the
person who made the deposit.
Art. 1926
Where a deposit was made by a person
who is capable to a person who is not, the person who made the
deposit has only a claim for the recovery of the thing deposited,
so long as it exists in the hands of the depositary, or a claim in
restitution up to the amount of the benefit derived by the
latter.
Section
III - Of the Obligations of a Depositary
Art. 1927
A depositary must take, in the keeping
of the thing deposited, the same care as he does in the
keeping of the things which belong to him.
Art. 1928
The provision of the preceding Article
shall be applied more strictly:
1° Where the
depositary has volunteered for receiving the
deposit;
2° Where he has
stipulated a salary for the keeping of the
deposit;
3° Where the
deposit has been made solely in the interest of the
depositary;
4° Where it has
been expressly agreed that the depositary would be liable for any
kind of fault.
Art. 1929
A depositary is not, in any case,
liable for the accidents of force majeure, unless he was
given notice to return the thing deposited.
Art. 1930
He may not make use of the thing
deposited, without the express or implied permission of the
depositor.
Art. 1931
He may not attempt to know what the
things are which have been deposited with him, when they have been
entrusted to him in a closed chest or under a sealed cover.
Art. 1932
A depositary must return the exact
same thing which he has received.
Thus, a deposit of
sums of money must be returned in the same coins in which it was
made, either in the case of increase or in the case of decrease of
their value.
Art. 1933
A depositary is only bound to return the thing deposited in
the condition in which it is at the time of restitution.
Deteriorations which did not occur through his act shall be borne
by the depositor.
Art. 1934
A depositary from whom the thing was
taken away through a force majeure , and who has received a
price or something in its place, must restore what he has receive
in exchange.
Art. 1935
An heir of the depositary, who has
sold in good faith the thing of whose deposit he was not aware, is
only bound to return the price which he has received, or to assign
his action against the buyer, where he has not received the price.
Art. 1936
Where a thing deposited has produced
fruits which were collected by the depositary, he is obliged to
return them. He owes no interest on money deposited, except from
the day when he has been given notice to make the restitution.
Art. 1937
A depositary must return the thing deposited only to the one
who has entrusted it to him, or to the one in whose name the
deposit was made, or to the one who has been designated to receive
it.
Art. 1938
He may not require the one who made
the deposit to prove that he was the owner of the thing deposited.
Nevertheless, where
he discovers that the thing has been stolen, and who the true
owner is, he must give the latter notice of the deposit which was
made to him, with demand to claim it within a determined and
sufficient period. Where the one to whom notice has been given
fails to claim the deposit, the depositary is lawfully discharged
by the handing over of it to the one from whom he received
it.
Art. 1939
In case of [...] death of the person
who made the deposit, the thing deposited may be returned only to
his heir.
Where there are
several heirs, it must be returned to each of them for their share
and portion.
Where the thing
deposited is indivisible, the heirs must agree between them to
receive it.
Art. 1940
(Act n° 85-1372 of 23 Dec.
1985)
Where the person who has made the
deposit has been deprived of his powers of administration, the
deposit may be returned only to the one who has the administration
of the property of the depositor.
Art. 1941
(Act n° 85-1372 of 23 Dec.
1985)
Where a deposit has been made by a guardian or an administrator,
in one of these capacities, it may be returned only to the person
whom the guardian or administrator represented, if their
management or administration has come to an end.
Art. 1942
Where the contract of deposit
specifies the place where the restitution must be made, the
depositary is bound to bring the thing deposited to that place.
Where there are transport costs, they shall be charged to the
depositor.
Art. 1943
Where the contract does not
specify the place of restitution, it must be done in the very
place of the deposit.
Art. 1944
A deposit must be returned to
the depositor as soon as he claims it, even where the contract has
fixed a determined period for the restitution; unless there is in
the hands of the depositary an attachment or a forbidding to
return and remove the thing deposited.
Art. 1945 [repealed by
implication]
Art. 1946
All the obligations of a depositary
come to an end where he happens to discover and prove that he is
himself the owner of the thing deposited.
Section IV -
Of the Obligations of the Person by Whom a Deposit was
Made
Art. 1947
The person who made a deposit is
bound to reimburse the depositary for expenses incurred for the
preservation of the thing deposited, and to indemnify him for all
the losses which the deposit may have occasioned him.
Art. 1948
A depositary may retain the
deposit until full payment of what is owed him by reason of the
deposit.
Section V –
Of Necessary Deposits
Art. 1949
A necessary deposit is one which was
forced by some accident, such as a fire, ruin, pillage, shipwreck
or other unforeseen event.
Art. 1950
(Act n° 80-525 of 12 July
1980)
Proof by witnesses may be admitted as
to a necessary deposit, although the amount concerned exceeds the
figure provided for by Article 1341.
Art. 1951
As to other issues, a necessary
deposit shall be governed by all the rules previously laid
down.
Art. 1952
(Act n° 73-1141 of 24 Dec.
1973)
Innkeepers or hotel-keepers are
liable, as depositaries, for clothes, luggage and various effects
brought into their business premises by a traveller lodging with
them; the deposit of effects of that kind shall be considered as a
necessary deposit.
Art. 1953
(Act n° 73-1141 of 24 Dec.
1973)
They are liable for theft or for damage to those effects, whether
the theft was committed or the damage caused by their servants or
employees, or by strangers going to and fro in the hotel.
That liability is
unlimited, notwithstanding any clause to the contrary, in case of
theft or deterioration of all kinds of effects deposited within
their hands or which they refused to receive without rightful
reason.
In all other cases,
damages due to a traveller are, to the exclusion of any agreed
lower limitation, limited to the equivalent of one-hundred times
the price of rental of lodging per day, except when the traveller
proves that the damage he has suffered results from a fault of the
person who shelters him or of the persons for whom the latter is
responsible.
Art. 1954
(Act n° 73-1141 of 24 Dec.
1973)
Innkeepers or hotel-keepers are not liable for thefts or damage
which happen through force majeure, nor for the loss which
results from the nature or from a defect of the thing, on
condition that they prove the fact which they
allege.
In derogation to
the provisions of Article 1953, innkeepers or hotel-keepers are
responsible for the objects left in vehicles parked on a place of
which they have private enjoyment up to the amount of fifty times
the price of rental of lodging per day.
Articles 1952 and
1953 shall not apply to living animals.
CHAPTER III – OF SEQUESTRATIONS
Section
I – Of the Various Kinds of
Sequestration
Art. 1955
Sequestration is either conventional
or judicial.
Section II – Of
Conventional Sequestration
Art. 1956
Conventional sequestration is a
deposit made by one or several persons, of a thing in contest,
into the hands of a third party who binds himself to return it,
after the controversy is over, to the person who will be judged
entitled to obtain it.
Art. 1957
Sequestration need not be
gratuitous.
Art. 1958
Where it is gratuitous, it is governed
by the rules of an actual deposit, subject to the differences
hereinafter stated.
Art. 1959
Sequestration may have as its object
not only movable effects, but also immovables.
Art. 1960
A depositary in charge of a
sequestration may be discharged, before the end of the
controversy, only by consent of all the interested parties, or for
a reason judged rightful.
Section
III – Of Judicial Sequestration or
Deposit
Art. 1961
A court may order
sequestration:
1° Of movables
seized on a debtor;
2° Of an immovable
or of a movable thing whose ownership or possession is in contest
between two or several persons;
3° Of things which
a debtor tenders in order to be discharged.
Art. 1962
The appointment of a judicial
custodian produces reciprocal obligations between the attaching
party and the custodian. A custodian must give the care of a
prudent owner for the preservation of the things
seized.
He must present
them, either to the attaching party for being discharged in case
of sale, or to the party against whose property execution has been
levied, in case of cancellation of the seizure.
The obligation of
an attaching party consists in paying the custodian the salary
fixed by law.
Art. 1963
Judicial sequestration shall be
given, either to a person agreed upon by the parties concerned, or
to a person appointed by the judge of his own motion.
In either case, the
one to whom a thing is entrusted is subject to all the obligations
which a conventional sequestration involves.
TITLE XII
OF ALEATORY CONTRACTS
Art. 1964
An aleatory contract is a reciprocal
agreement whose effects, as to advantages and to losses, either
for all the parties, or for one or several of them, depend upon an
uncertain event.
Such are:
Insurance
contracts;
Bottomry
contracts;
Gaming and
betting;
Contracts for life
annuity.
The first two are
governed by maritime law.
CHAPTER I - OF
GAMING AND BETTING
Art. 1965
Legislation does not grant any action
for a gaming debt or for the payment of a bet.
Art. 1966
Games proper to train in the use of
arms, foot or horse races, chariot races, tennis and other games
of the same kind which involve skill and bodily exercise, are
excepted from the precedent provision.
Nevertheless, the
court may dismiss the complaint where the sum seems
excessive.
Art. 1967
In no case may the loser recover what
he has voluntarily paid, unless there was, on the part of the
winner, deception, fraud or swindling.
CHAPTER II - OF CONTRACT FOR LIFE
ANNUITY
Section I - Of
the Requisites for the Validity of the
Contract
Art. 1968
A life annuity may be settled for
value, for a sum of money or for a valuable movable thing, or for
an immovable.
Art. 1969
It may also be settled, purely
gratuitously, by gift inter vivos or by will. It must then bear
the forms required by legislation.
Art. 1970
In the case of the preceding Article,
a life annuity may be abated, where it exceeds what one is allowed
to dispose of; it is void, where it is for the benefit of a person
incapable of receiving it.
Art. 1971
A life annuity may be settled either
on the head of the one who furnishes the price of it, or on the
head of a third person, who has no right to enjoy
it.
Art. 1972
It may be settled on one or several
heads.
Art. 1973
It may settled for the benefit of a
third person, although the price is paid by another
person.
In the latter case,
although it has the character of a gratuitous transfer, it is not
subject to the forms required for gifts; except for the cases of
abatement and avoidance stated in Article 1970.
(Act n° 63-1092
of 6 Nov. 1963) Where, settled by spouses or one of them, an
annuity is stipulated to be revertible in favour of the surviving
spouse, the clause which imports that property is to revert to him
or her may have the character of a gratuitous transfer or that of
a transaction for value. In that latter case, the reimbursement or
the indemnity owed by the beneficiary of the reversion to the
community or to the succession of the predeceaser is equal
to the value of the reversion of the annuity. Except for contrary
intention of the spouses, an annuity is deemed to have been
granted gratuitously.
Art. 1974
A contract for life annuity created on
the head of a person who was dead at the day of the contract does
not produce any effect.
Art. 1975
It shall be the same for a contract by
which an annuity was created on the head of a person suffering
from an illness of which he died within twenty days after the date
of the contract.
Art. 1976
A life annuity may be settled at the
rate which it please the parties to fix.
Section II - Of
the Effects of the Contract between the Contracting
Parties
Art. 1977
The one in whose favour a life
annuity was settled for a price may apply for the termination of
the contract where the grantor does not give the guarantees
stipulated for its performance.
Art. 1978
The mere failure to pay the income of
the annuity does not entitle the one in whose favour it is settled
to apply for the reimbursement of the capital or to re-enter into
the tenement transferred by him: he only has the right to seize
and have the property of his debtor sold and to have ordered or
agreed that, out of the proceeds of the sale, a sufficient sum be
invested for the payment of the income.
Art. 1979
A grantor may not exonerate himself
from paying the annuity, by offering to reimburse the capital, and
waiving recovery of the income paid; he is bound to pay the
annuity during the whole life of the person or persons on whose
heads the annuity was settled, whatever the duration of the life
of those persons may be and however onerous the payment of the
annuity may have become.
Art. 1980
A life annuity is acquired by the
annuitant only in proportion to the number of days he has lived.
Nevertheless, where
it was agreed that it would be paid in advance, the instalment
which ought to be paid is acquired from the day when its payment
ought to be made.
Art. 1981
A life annuity may be stipulated to be
exempt from execution only where it was settled gratuitously.
Art. 1982 [repealed by
implication]
Art. 1983
The annuitant of an annuity may
claim income only by proving his existence, or that of the person
on whose head it was settled.
TITLE XIII
OF AGENCY
CHAPTER I OF THE
NATURE AND FORM OF AGENCY
Art. 1984
An agency or power of attorney is a
transaction by which a person gives to another the authority to do
something for the principal and in his name.
An agency is
formed only through acceptance of the agent.
Art. 1985
“An agency may be given by an
authentic instrument or by an instrument under private signature,
even by letter. It may also be given verbally, but proof of it by
witness is received only in accordance with the Title Of
Contracts or of Conventional Obligations in General "(Act
n° 80-525 of 12 July 1980).
Acceptance of an
agency may be only tacit and result from the performance of it
effected by the agent.
Art. 1986
An agency is gratuitous, unless there
is an agreement to the contrary.
Art. 1987
It is either special and for one or several deals only, or general
and for all the affairs of the principal.
Art. 1988
An agency worded in general terms
includes only acts of administration.
Where it is
intended to transfer or mortgage, or do some other transaction
relating to ownership, the agency must be
express.
Art. 1989
An agent may do nothing beyond what is
expressed in his agency: the authority to compromise does not
include that to enter into an arbitration
agreement.
Art. 1990
(Act n° 65-570 of 13 July
1965)
A non-emancipated minor may be chosen
as an agent; but the principal has an action against him only in
accordance with the general rules relating to the obligations of
minors.
CHAPTER II -
OF THE OBLIGATIONS OF THE AGENT
Art. 1991
An agent is bound to perform the agency so long as he responsible
for it, and is liable for the damages which may result from his
non-performance.
He is also bound at
the death of the principal to complete a matter initiated, where
there is danger in delay.
Art. 1992
An agent is liable not only for
intentional breach, but also for faults committed in his
management.
Nevertheless, the
liability for faults is implemented less rigorously against the
one whose agency is gratuitous than against the one receiving a
salary.
Art. 1993
Every agent is bound to account for
his management, and to return to the principal all that he
received by virtue of his power of attorney, even where what he
received was not owed to the principal.
Art. 1994
An agent answers for the one whom he
has substituted for himself in his management: 1° where he did not
receive the authority to substitute someone; 2° where that
authority was granted to him without designation of a person and
the one whom he has chosen was notoriously incompetent or
insolvent.
In all cases, a
principal may directly sue the person whom the agent has
substituted for himself.
Art. 1995
Where there are several proxies or
agents appointed by the same instrument, there is no joint and
several liability between them, unless it is expressed.
Art. 1996
An agent owes interest on sums
employed for his own use, from that use; and on those of which he
is debtor for the balance, from the day when he is given notice.
Art. 1997
An agent who has given the party with
whom he contracts, in that capacity, a sufficient knowledge of his
authority is not held to any warranty for what has been made
outside the scope of that authority, unless he has personally
taken charge of it.
CHAPTER
III - OF THE OBLIGATIONS OF THE PRINCIPAL
Art. 1998
A principal is bound to perform the
undertakings contracted by the agent, in accordance with the
authority granted to him.
He is bound for
what may have been done outside its scope, only where he has
expressly or tacitly ratified it.
Art. 1999
A principal must reimburse the agent
for the advances and expenses which the latter made for the
performance of the agency, and pay him his salary where it has
been promised.
Where no fault may
be ascribed to the agent, the principal may not dispense with
making those reimbursements and payments, even if the matter did
not succeed, and he may not have the amount of the expenses and
advances reduced on the pretext that they could have cost less.
Art. 2000
A principal must also compensate the
agent for the losses which the latter has incurred on the occasion
of his management, without an imprudent act being ascribable to
him.
Art. 2001
Interest on the advances made by the
agent is owed to him by the principal, from the day of the
advances which are proved.
Art. 2002
Where an agent has been appointed by
several persons, for a common affair, each of them is jointly and
severally liable towards him for all the effects of the agency.
CHAPTER IV
- OF THE DIFFERENT WAYS IN WHICH AN AGENCY COMES TO AN
END
Art. 2003
An agency comes to an
end:
By the revocation
of the agent;
By the renunciation
of the agency by the latter;
By the [..] death,
guardianship of adults or insolvency, either of the principal, or
of the agent.
Art. 2004
A principal may revoke his power of
attorney when he pleases and compel, if there is occasion, the
agent to return to him, either the instrument under private
signature which contains it, or the original of the power of
attorney, where it has been delivered without being recorded, or
the office copy, where the original has been kept.
Art. 2005
A revocation of which only the
agent has been given notice is not effective against third parties
who have dealt without knowing of that revocation, except for the
remedy of the principal against the agent.
Art. 2006
The appointment of a new agent for the
same affair involves revocation of the first one, from the day
when notice of it has been given to the latter.
Art. 2007
An agent may renounce the agency
by giving notice of his renunciation to the
principal.
Nevertheless, where
that renunciation prejudices the principal, he must be compensated
by the agent, unless the latter is unable to continue the agency
without himself suffering a considerable loss.
Art. 2008
Where an agent has no knowledge of the
death of the principal or of one of the other causes which make an
agency come to an end, what he has done in that ignorance is
valid.
Art. 2009
In the above cases, the undertakings
of the agent shall be performed with regard to third parties who
are in good faith.
Art. 2010
In case of death of an agent, his
heirs must give notice of it to the principal, and, in the
meantime, attend to what the circumstances may require in the
interest of the latter.
TITLE XIV
OF SURETYSHIP
CHAPTER
I - OF THE NATURE AND EXTENT OF SURETYSHIP
Art. 2011
A person who makes himself surety for
an obligation binds himself towards the creditor to perform that
obligation, if the debtor does not perform it
himself.
Art. 2012
A suretyship may exist only on a valid
obligation.
One may
nevertheless stand surety for an obligation, although it may be
avoided by a defence purely personal to the obligor; for instance,
in case of minority.
Art. 2013
A suretyship may not exceed what
is owed by the debtor, nor be contracted under more onerous
conditions.
It may be
contracted for a part of the debt only, and under less onerous
conditions.
A suretyship which
exceeds the debt, or which is contracted under more onerous
conditions, is not void: it is only reducible to the extent of the
principal obligation.
Art. 2014
One may become surety without an order
of the person for whom one becomes bound, and even without his
knowledge.
One may also become
surety, not only of the principal debtor, but also of the person
who has given security for him.
Art. 2015
Suretyship is not presumed; it must be
express, and one may not extend it beyond the limits within which
it was contracted.
Art. 2016
Indefinite suretyship of a principal
obligation extends to the accessories of the debt, even to the
costs of the first claim , and to all those subsequent to the
notice given of it to the surety.
(Act n° 98-657
of 29 July 1998) Where that suretyship is contracted by
a natural person, the latter shall be informed by the creditor of
the evolution of the amount of the claim guaranteed and of those
accessories at least once a year at the date agreed between the
parties or, failing which, at the anniversary date of the
contract, on pain of forfeiture of all the accessories of the
debts, costs and penalties.
Art. 2017
The undertakings of the sureties pass
to their heirs [..].
Art. 2018
A debtor compelled to give a surety
must present one who has capacity to contract, sufficient property
to answer for the object of the obligation, and whose domicile is
in the territory of the cour d’appel where it must be
given.
Art. 2019
The solvency of a surety is
appreciated only with regard to his landed property except in
matters of commerce and where the debt is
moderate.
Regard shall not be
had to immovables in dispute or whose seizure and forced sale
would be too difficult because of remoteness of their
location.
Art. 2020
Where a surety received by the
creditor, voluntarily or in court, becomes afterwards insolvent, a
new one must be given.
The sole exception
to that rule takes place where the surety was given only under an
agreement by which the creditor has required such a person as
surety.
CHAPTER II - OF THE EFFECTS OF
SURETYSHIP
Section I - Of the
Effect of Suretyship between the Creditor and the
Surety
Art. 2021
A surety is bound towards the creditor
to pay him only upon the debtor’s failure, whose property must be
previously exhausted, unless the surety has renounced the benefit
of seizure and sale, or unless he is bound jointly and severally
with the debtor, in which case the effect of his undertaking is
governed by the principles established for joint and several
debts.
Art. 2022
A creditor is bound to exhaust the
main debtor’s property only where the surety requires him to do
so, on the institution of proceedings against the latter.
Art. 2023
A surety who requires seizure and sale
must point out to the creditor the property of the principal
debtor and furnish a sufficient sum to have the proceedings
carried out.
He may not point
out property of the principal debtor situated out of the
arrondissement of the cour d’appel of the place
where payment must be made, nor property which is in litigation,
nor that which is mortgaged for the debt and no longer in the
possession of the debtor.
Art. 2024
Whenever the surety has pointed
out the property authorized by the preceding Article and has
furnished a sufficient sum to have the seizure and sale carried
out, the creditor is, to the extent of the property pointed out,
liable towards the surety for the insolvency of the principal
debtor which has occurred in consequence of his failure to
institute proceedings. “In any case, the amount of the debts
resulting from a suretyship may not have the effect of depriving a
natural person who stood as surety of a minimum income fixed by
Article L. 331-2 of the Consumer Code” (Act n° 98-657 of 29
July 1998).
Art. 2025
Where several persons have become
surety of the same debtor for a same debt, each one is liable for
the whole debt.
Art. 2026
Nevertheless, each one, unless he has
renounced the benefit of division, may demand that the creditor
previously divide his action and reduce it to the part and portion
owed by each surety.
Where, at the time
when one of the sureties had the division effected, some of them
were insolvent, that surety is proportionately liable for those
insolvencies; but he may no longer be sued for insolvencies
happening after the division.
Art. 2027
Where a creditor has himself and
voluntarily divided his action, he may not go back on that
division, although there were insolvent sureties even before the
time when he consented thereto.
Section II
- Of the Effect of Suretyship between the Debtor and the
Surety
Art. 2028
A surety who has paid has his remedy
against the principal debtor, whether the suretyship has been
given with or without the knowledge of the
debtor.
That remedy takes
place both for the principal and for the interest and costs;
nevertheless, the surety has a remedy only for the costs he has
incurred since he has given notice to the principal debtor of the
proceedings instituted against him.
He also has a
remedy for damages, if there is occasion.
Art. 2029
A surety who has paid the debt
is subrogated to all the rights which the creditor had against the
debtor.
Art. 2030
Where there were several principal
debtors, jointly and severally liable for a same debt, he who
stood as surety for them all has, against each of them, a remedy
for the recovery of the whole debt.
Art. 2031
A surety who has paid a first time has
no remedy against a principal debtor who has paid a second time,
where he has not informed him of his paying; except for his remedy
for recovery against the creditor.
Where a surety has
paid without being sued and without informing the principal
debtor, he has no remedy against him in the case where, at the
time of payment, that debtor would have had arguments to have the
debt declared extinct; except for his remedy for recovery against
the creditor.
Art. 2032
Even before paying, a surety may bring
suit against the debtor to be indemnified by
him:
1° Where he is sued
in court for payment;
2° Where the debtor
is [under a judicial arrangement] or insolvent;
3° Where the debtor
was bound to discharge him within a certain
time;
4° Where the debt
has become due by the expiry of the term for which it was
contracted;
5° At the end of
ten years, where the principal obligation has no fixed term of
maturity, unless the principal obligation, such as a guardianship,
is not extinguishable before a determinate time.
Section
III - Of Effect of Suretyship between
Co-Sureties
Art. 2033
Where several persons have been
sureties for the same debtor in regard to the same debt, a surety
who has satisfied the debt has a remedy against the other
sureties, for the share and portion of each of
them.
But this remedy
only takes place where the surety has paid in one of the cases
mentioned in the preceding Article.
CHAPTER III - OF THE
EXTINGUISHMENT OF SURETYSHIP
Art. 2034
The obligation which results from a
suretyship is extinguished by the same causes as other
obligations.
Art. 2035
A merger which takes place in the
persons of a principal debtor and his surety, where they become
heirs one to the other, does not extinguish the action of the
creditor against the person who has stood as surety for the
surety.
Art. 2036
A surety may set up against the
creditor all the defences which belong to the principal debtor,
and which are inherent to the debt.
But he may not set
up the defences which are purely personal to the debtor.
Art. 2037
A surety is discharged where the
subrogation to the rights, mortgages and prior claims of the
creditor, may no longer take place in favour of the surety, by the
act of that creditor. “Any clause to the contrary shall be deemed
not written” (Act n° 84-148 of 1 March 1984).
Art. 2038
The voluntary acceptance on the part
of a creditor of an immovable or of any property in payment of the
principal debt, discharges the surety, even where the creditor is
afterwards evicted therefrom.
Art. 2039
A mere extension granted by the
creditor to the principal debtor does not discharge the surety,
who may in that case sue the debtor to compel him to pay.
CHAPTER IV
- OF STATUTORY AND JUDICIAL SURETIES
Art. 2040
Whenever a person is bound, by law or
by a judgment, to give a surety, the surety tendered must fulfil
the conditions required in Articles 2018 and
2019.
[repealed by
implication]
Art. 2041
A person who cannot find a surety is
admitted to give instead a pawn as sufficient
pledge.
Art. 2042
A judicial surety may not demand the
seizure and sale of the principal debtor’s property.
Art. 2043
A person who has merely become the
surety of a judicial surety may not demand the seizure and sale of
the property of the principal debtor and of the surety.
TITLE XV
OF COMPROMISES
Art. 2044
A compromise is a contract by which
the parties settle an arisen controversy, or prevent a controversy
from arising.
That contract must
be made in writing.
Art. 2045
In order to compromise, one must have
the capacity to dispose of the things included in the compromise.
A guardian may
compromise on behalf of a minor or of an adult in guardianship
only in accordance with Article 467, in the Title Of Minors, of
Guardianship and of Emancipation; and he may compromise with a
minor come of age with respect to the account of guardianship only
in accordance with Article 472 of the same
Title.
Communes
and public institutions may compromise
only with the express authorization of the President of the
Republic.
Art. 2046
A compromise may take place as
to civil interests resulting from an offence.
The compromise does
not prevent prosecution by the Government procurator’s office.
Art. 2047
One may add to a compromise the stipulation of a penalty against
the party who fails to perform it.
Art. 2048
Compromises are confined to their
purpose: a renunciation made therein of all rights, actions and
claims extends only to what relates to the controversy about which
the compromise has arisen.
Art. 2049
Compromises regulate only the
controversies which are comprised therein, whether the parties
have expressed their intention in special or general terms, or
that intention comes out as a necessary consequence of what is
expressed.
Art. 2050
Where a person who has made a
compromise as to a right which he had in his own name acquires
afterwards a similar right in the name of another person, he is
not bound by the compromise previously made with respect to the
right newly acquired.
Art. 2051
A compromise made by one of the
interested parties does not bind the others and may not be invoked
by them.
Art. 2052
Compromises have, between the parties,
the authority of res judicata of a final judgment.
They may not be
attacked on account of an error of law, nor on account of
loss.
Art. 2053
Nevertheless, a compromise may be
rescinded, where there is an error as to the person or as to the
subject-matter of the controversy.
It may also be
rescinded where there is deception or duress.
Art. 2054
An action for rescission of a
compromise also lies where it has been made in execution of an
instrument which is void, unless the parties have expressly dealt
about the nullity.
Art. 2055
A compromise made on documents which
have since then been found false is entirely void.
Art. 2056
A compromise made as to a suit come to
an end owing to a judgment having force of res judicata, of which
the parties or one of them were not aware, is void.
Where the judgment
unknown to the parties was subject to appeal, the compromise is
valid.
Art. 2057
Where the parties have compromised
generally on all the matters which they might have with one
another, the instruments which were then unknown to them and which
may have been afterwards discovered, are not a ground for
rescission, unless they have been kept through the act of one of
the parties.
But the compromise
is void where it relates to one matter only to which it is proved,
by the newly discovered instruments, that one of the parties had
no right.
Art. 2058
An error of calculation in a
compromise must be corrected.
TITLE XVI
OF ARBITRATION AGREEMENTS
(Act n° 72-626 of 5 July 1972)
Art. 2059
All persons may make arbitration
agreements relating to rights of which they have the free
disposal.
Art. 2060
One may not enter into arbitration
agreements in matters of status and capacity of the persons, in
those relating to divorce and judicial separation or on
controversies concerning public bodies and institutions and more
generally in all matters in which public policy is concerned.
(Act n° 75-596
of 9 July 1975) However, categories of public institutions of
an industrial or commercial character may be authorized by decree
to enter into arbitration agreements.
Art. 2061
(Act n° 2001-420 of 15 May
2001)
Except where there are particular
statutory provisions, an arbitration clause is valid in the
contracts concluded by reason of a professional
activity.
Art. 2062 to 2070
[repealed]
TITLE
XVII
OF PLEDGES
Art. 2071
A pledge is a contract by which a
debtor hands over a thing to his creditor as security for a
debt.
Art. 2072
A pledge of a movable thing is called
pawn.
That of an
immovable thing is called antichresis.
CHAPTER I - OF
PAWNS
Art. 2073
A pawn confers to the creditor the
right of causing his debt to be satisfied out of the thing which
is its subject-matter, by priority and in preference to the other
creditors.
Art. 2074
(Act n° 80-525 of 12 July
1980)
That prior charge exists
against third persons only where there exists an instrument,
authentic or under private signature, duly registered, containing
a declaration of the sum due, as well as of the species and the
nature of the property pawned, or an annexed statement of their
quality, weight and measures.
Art. 2075
(Act n° 80-525 of 12 July
1980)
Where a pawn attaches to intangible movables, such as movable
claims, the instrument, authentic or under private signature, duly
registered, must be served on the debtor of the claim pawned or
accepted by him in an authentic instrument.
Art. 2075-1
(Act n° 72-626 of 5 July 1972)
The deposit of sums, effects or
securities, judicially ordered for guarantee or as a provisional
measure, involves the special lien and the prior charge of Article
2073.
Art. 2076
In all cases, the prior charge only
subsists on the pawn where that pawn has been put and has remained
in the possession of the creditor, or of a third person agreed
upon between the parties.
Art. 2077
A pawn may be given by a third person
for the debtor.
Art. 2078
A creditor may not dispose of the pawn
in case of failure to pay; but he may have ordered in court that
the pawn will remain with him in payment and up to the amount due,
according to an appraisal made by experts, or that it will be sold
by auction.
Any clause which
authorizes a creditor to appropriate the pawn or to dispose of it
without the above formalities is void.
Art. 2079
Until the debtor is dispossessed, if
there is occasion, he remains the owner of the pawn which, in the
hand of the creditor, is only a deposit which secures the prior
charge of the latter.
Art. 2080
A creditor is liable, according to the rules laid down in the
Title Of Contracts or of Conventional Obligations in
General , for the loss or deterioration of the pawn
resulting from his negligent conduct.
On his side, the
debtor is accountable to the creditor for useful and necessary
expenses which the latter has incurred for the preservation of the
thing.
Art. 2081
Where a claim pawned is concerned, and
that claim bears interest, the creditor may appropriate that
interest to that which may be owed to him.
Where the debt for
whose guarantee a claim was pawned does not itself bear interest,
appropriation shall be made to the capital of the debt.
Art. 2082
Unless the holder of a pawn misuses
it, a debtor may claim restitution thereof only after paying in
full both the capital and the interest and costs of the debt for
whose guarantee the pawn has been given.
Where there existed
on the part of the same debtor, towards the same creditor, another
debt contracted after the giving of the pawn, and become due
before payment of the first debt, the creditor shall not be held
to dispossess himself of the pawn before being paid in full for
both debts, even if no stipulation was made for applying the pawn
to the payment of the second one.
Art. 2083
A pawn is indivisible notwithstanding
the divisibility of the debt between the heirs of the debtor or
those of the creditor.
An heir of the
debtor, who has paid his portion of the debt, may not claim
restitution of his portion in the pawn, so long as the debt is not
wholly discharged.
Reciprocally, an
heir of the creditor, who has received his portion of the debt,
may not return the pawn to the detriment of those of his co-heirs
who are not paid.
Art. 2084
The above provisions shall not apply
to commercial matters, nor to authorized pawnbroker's
establishments, and as to which the statutes and regulations
relating to them shall be followed.
CHAPTER
II - OF PLEDGES OF IMMOVABLES
Art. 2085
A pledge of immovables may be
established only in writing.
A creditor acquires
by that contract only the faculty to collect the revenue of the
immovable, on the condition that he appropriate it annually to the
interest, if any is due to him, and then to the capital of his
claim.
Art. 2086
Unless otherwise agreed, a creditor is
bound to pay the taxes and annual charges of the immovable which
he holds as pledge.
He must also, on
pain of damages, provide for the maintenance and the proper and
necessary repairs of the immovable, but he may deduct from the
fruits all the expenses relating to those various purposes.
Art. 2087
A debtor may not claim the enjoyment
of the immovable which he has delivered as pledge before entire
discharge of the debt.
But a creditor who
wishes to discharge himself from the obligations expressed in the
preceding Article may always, unless he has renounced that right,
compel the debtor to retake the enjoyment of his
immovable.
Art. 2088
A creditor does not become the
owner of the immovable by the mere failure to pay at the time
agreed upon; any clause to the contrary is void; in that case he
may enforce dispossession of his debtor by legal remedies.
Art. 2089
Where the parties have stipulated that
the fruits will be set off against the interest, either totally,
or up to a certain amount, that agreement shall be carried out,
like any other which is not prohibited by law.
Art. 2090
The provisions of Articles 2077 and
2083 shall apply to the pledge of an immovable as well as to
pawn.
Art. 2091
All that is said in this Chapter does
not prejudice the rights which third parties may have on the
tenement of the immovable delivered as pledge.
Where the creditor,
holding by virtue of that title has furthermore, on the tenement,
prior charges or mortgages, duly established and retained, he
shall exercise them according to his rank and as any other
creditor.
TITLE XVIII
OF PRIOR CHARGES AND MORTGAGES
CHAPTER I -
GENERAL PROVISIONS
Art. 2092
Whoever has personally made himself
liable is bound to fulfil his undertaking out of all his movable
or immovable property, existing and to come.
Art. 2092-1 and 2092-2
[repealed]
Art. 2092-3 [repealed]
(Act n° 72-625
of 5 July 1972) Leases granted by a debtor under a seizure or
attachment, whatever their duration may be, are not enforceable
against the creditors who levy execution.
Art. 2093
The property of a debtor is the common
pledge of his creditors; and the proceeds of it shall be
distributed among them pro rata, unless there are lawful causes of
priority between the creditors.
Art. 2094
The lawful causes of priority are
prior charges and mortgages.
CHAPTER II - OF
PRIOR CHARGES
Art. 2095
A prior charge is a right which the
character of a claim gives to a creditor to have priority over the
other creditors, even mortgagees.
Art. 2096
Among creditors who have prior
charges, the priority is settled by the different characters of
the prior charges.
Art. 2097
The creditors having prior charges who
are in the same rank shall be paid pro rata.
Art. 2098
The prior charge by reason of the
rights of the Public Treasury and the order in which it comes are
regulated by the statutes which relate to them.
The Public Treasury
may not, however, obtain a prior charge to the detriment of rights
previously vested in third parties.
Art. 2099
Prior charges may be over movables or
over immovables.
Section I - Of Prior Charges over
Movables
Art. 2100
Prior charges are either general, or
special over certain movables.
§ 1 - Of
General Prior Charges over Movables
Art. 2101
Claims having precedence over the
generality of movables are those hereinafter expressed, and are
enforced in the following order:
1° Court
costs;
2° Funeral
expenses;
3° (Act of 30
Nov. 1892) Any expenses relating to the latest illness,
whatever its outcome may have been, concurrently among those to
whom they are owed;
4° (Act n° 79-11
of 3 Jan. 1979) Without prejudice to the possible application
of the provisions of Articles L. 143-10, L. 143-11, L. 742-6
and L. 751-15 of the Labour Code:
The wages of
domestic staff for the year elapsed and the current
year;
The deferred salary
resulting from the contract of employment established by Article
63 of the Decree of 29 July 1939 relating to French family and
birth rate [Articles L. 321-13 to L. 321-21 of the Rural Code],
for the year elapsed and the current year;
(Act n° 89-1008
of 31 Dec. 1989) The claim of the surviving spouse established
by Article 14 of Act n° 89-1008 of 31 December 1989 relating to
the development of commercial and craft concerns and to the
improvement of their economic, legal and social environment, “and
the claim of the surviving spouse established by Article L.
321-21-1 of the Rural Code” (Act n° 99-574 of 9 July
1999);
(Act n° 89-488
of 10 July 1989) The pay for the last six months of
employees, apprentices, and the allowance owed by the employer to
young people in training scheme of initiation to professional
life, such as provided for in Article L. 980-11-1 of the Labour
Code;
(Ord. N° 82-130
of 5 Feb. 1982) The allowance for the end of the contract
provided for by Article “L. 122-3-4” (Act n° 90-9 of 2 Jan.
1990) of the Labour Code and the allowance to compensate
for lack of job security provided for in Article L. 124-4-4 of the
same Code;
The allowance owed
by reason of failure to comply with the term of notice provided
for in Article L. 122-8 of the Labour Code and the compensatory
allowance provided for in Article L. 122-32-6 of the same Code;
The allowances owed
for paid holidays;
The allowances for
dismissal owed in compliance with collective labour agreements,
collective agreements of branches, labour regulations, usages, and
the provisions of Articles L. 122-9, “L. 122-32-6” (Act n° 81-3
of 7 Jan. 1981), L. 761-5 and L. 761-7 “as well as the
allowance provided for in Article L. 321-6 of the Labour Code for
the whole of the portion lower than or equal to the ceiling
provided for in Article L. 143-10 of the Labour Code and for
one-fourth of the portion higher than the said ceiling” (Act n°
90-9 of 2 Jan. 1990);
(Ord. n° 82-130
of 5 Feb. 1982) The allowances owed, if there is
occasion, to employees under Articles L. 122-3-8, paragraph 2, L.
122-14-4, L. 122-14-5, paragraph 2, L. 122-32-7 and L. 122-32-9 of
the Labour Code;
5° (Act n°
64-678 of 6 July 1964) The furnishing of supplies to a
debtor and his family during the last year and, within the same
period, the products delivered by an agricultural producer in the
context of an approved long-term inter-professional agreement, “as
well as the sums owed by any contracting party of a farmer in
compliance with an approved standard contract” (Act n° 80-502
of 4 July 1980);
6°
[repealed by implication]
7° (Act of 11
March 1932) The grants owed to workmen and employees by
equalization funds and other approved bodies for servicing family
allowances or by employers dispensed from joining such an
institution under Article 74 f [repealed]of Book I of the
Labour Code.
8° The claims of
equalization funds or other approved bodies for servicing family
allowances towards their adherents for the contributions which the
latter have undertaken to pay them for purpose of payment of
family allowances and equalization of the burdens resulting from
the payment of said benefits.
§ 2 - Of
Prior Charges over Particular Movables
Art. 2102
Claims having precedence over
particular movables are:
1° Rents and
farm-rents of immovables on the fruit of the year's crop, and on
the price of everything which garnishes the house rented or the
farm, and of everything which is used for the working of the farm:
namely, for everything which is due, and for everything which
shall become due, where the leases are authentic, or, where being
under private signature, they have an undisputable date; and, in
both cases, the other creditors have the right to relet the house
or the farm for the remainder of the lease, and to profit by the
leases or rents, on condition, however, that they pay the owner
everything which may still be owed to him.
And, failing
authentic leases, or where, being under private signature, they do
not have an undisputable date, for one year after the expiry of
the current year.
(Act of 25 Aug.
1948) The same prior charge exists for the repairs
incumbent upon the tenant and for everything relating to the
execution of the lease. It also exists for all claims resulting,
for the benefit of the owner or tenant, from the occupation of the
premises, regardless of the basis thereof.
(Act of 24 March
1936) Nevertheless, the sums owed for seeds, for manure and
ameliorators, for anti-cryptogamic and insect products, for
products designed for the destroying of animal or plant parasites
harmful to farming, or for the expenses of the year’s crop, shall
be paid out of the proceeds of the crop, and those owed for
implements out of the proceeds of those implements, in priority to
the owner in either case.
The owner may seize
the movables which furnish his house or his farm, where they have
been removed without his consent, and he retains his prior charge
over them, provided he has made his claim; namely: where the
furniture which garnished a farm is concerned, within forty day;
and within fifteen days , where the furniture garnishing a house
is concerned;
2° A claim on the
pawn which is in the possession of the creditor;
3° Expenses
incurred for the preservation of a thing;
4° The price of
movable effects not paid, where they are still in the possession
of the debtor, whether he has bought on credit or
not;
Where the sale was
not made on credit, the seller may even claim back those effects
as long as they are in the possession of the buyer, and prevent a
re-sale, provided the claim is made within eight days after the
delivery, and the effects are in the same condition in which the
delivery was made;
However, the
seller’s prior charge may only be enforced after that of the owner
of the house or of the farm, unless it is proved that the owner
knew that the furniture and other articles garnishing his house or
his farm did not belong to the tenant;
No change is made
in the statutes and customs of commerce relating to claims for
recovery;
5° The supplies of
an innkeeper , on the effects of a traveller which have been
carried to his inn;
6°
[repealed]
7° Claims resulting
from abuses and unfaithful conducts of public officials in the
fulfilment of their duties, on the funds of their pawn, and on the
interest which may be owed thereon;
8° (Act of 28
May 1913) Claims arising from an accident for the benefit of
the third persons injured in that accident or their assigns, on
the indemnity of which the insurer, under a contract of liability
insurance, admits that he is or has been judicially held debtor by
reason of the contract of insurance.
No payment made to
the insured person may be in full discharge as long as creditors
with prior charges have not been paid off;
9° (Act of 1
Aug. 1941; Act of 28 June 1943) Claims arising from a contract
of employment of the auxiliary employee of a home worker
corresponding to the definition of Article 33 of Book I [Article
L. 721-1] of the Labour Code, on the sums owed to that worker by
the hirers of services.
Section
II - Of Special Prior Charges over
Immovables
(Ord. N° 59-71 of 7 Jan.
1959)
Art. 2103
Creditors having precedence over
immovables are:
1° A seller, on the
immovable sold, for payment of the price;
Where there are
several successive sales whose price is owed in whole or in part,
the first seller has priority over the second, the second over the
third, and so on;
1° bis
(Act n° 94-624 of 21 July 1994) Jointly with a seller
and, if there is occasion, with a lender of funds mentioned in 2°,
a syndicate of co-owners, on the fraction of co-ownership sold,
for payment of the expenses and works mentioned in Articles 10 and
30 of Act n° 65-557 of 10 July 1965 establishing the status of
co-ownership of built immovables, which relate to the current year
and to the last four years elapsed.
However, the
syndicate has priority over a seller and a lender of funds as to
claims relating to the expenses and works of the current year and
of the last two years elapsed.
2° (Act n°
71-579 of 16 July 1971) Even in the absence of subrogation,
those who have procured the funds for the purchase of an
immovable, provided it was authentically established, by the
instrument of loan, that the sum was intended for that use, and by
the receipt of the seller, that the payment was made out of the
funds borrowed;
3° Co-heirs, on the
immovables of the succession, for the warranty of the partitions
made between them, and of balances or reversions on lots;
[repealed by implication];
4° Architects,
contractors, masons and other workers employed to erect, rebuild
or repair buildings, canals and other works whatsoever, provided
nevertheless that a memorandum has been previously drawn up by an
expert appointed of its own motion by the tribunal de grande
instance in whose territory the buildings are situated, for
the purpose of establishing an inventory of the premises with
respect to the works which the owner claims he intends to perform,
and that the works, within six months at the most after their
completion, have been accepted by an expert also appointed ex
officio;
But the amount of
the prior charge may not exceed the values established by the
second memorandum, and it is reduced to the increase in value
which exists at the time of the transfer of the immovable and
resulting from the works which have been done
thereon;
5° Those who have
loaned the funds to pay or reimburse the workers, enjoy the same
prior charge, provided that use is authentically established by
the instrument of loan, and by the receipt of the workers, as was
above laid down for those who have loaned funds for the
acquisition of an immovable;
6° (D. n° 55-52
of 4 Jan. 1955) Creditors and legatees of a deceased
person on the immovables of the succession, for the warranty of
the rights which they hold under Article 878;
7° (Act n°
84-595 of 12 July 1984) Prospective owners by virtue of a
contract of lease with option to sell regulated by Act n° 84-595
of 12 July 1984 defining lease with option to sell immovables on
the immovable which is the subject matter of the contract, for the
warranty of the rights which they hold under that contract.
Section III - Of
General Prior Charges over Immovables
(Ord. N° 59-71 of 7 Jan. 1971)
Art. 2104
Claims having precedence over the
generality of immovables are:
1° Court
costs;
2° (Act n° 79-11
of 3 Jan. 1979) Without prejudice to the possible application
of the provisions of Articles L. 143-10, L. 143-11, L. 742-6
and L. 751-15 of the Labour Code:
The wages of
domestic staff for the year elapsed and the current
year;
The deferred salary
resulting from the contract of employment established by Article
63 of the Decree of 29 July 1939 relating to French family and
birth rate [Articles L. 321-13 to L. 321-21 of the Rural Code],
for the year elapsed and the current year;
(Act n° 89-1008
of 31 Dec. 1989) The claim of the surviving spouse established
by Article 14 of Act n° 89-1008 of 31 December 1989 relating to
the development of commercial and craft concerns and to the
improvement of their economic, legal and social environment, “and
the claim of the surviving spouse established by Article L.
321-21-1 of the Rural Code” (Act n° 99-574 of 9 July
1999);
(Act n° 89-488
of 10 July 1989) The pay for the last six months of
employees, apprentices, and the allowance owed by the employer to
young people in training scheme of initiation to professional
life, such as provided for in Article L. 980-11-1 of the Labour
Code;
(Ord. N° 82-130
of 5 Feb. 1982) The allowance for the end of the contract
provided for by Article “L. 122-3-4” (Act n° 90-9 of 2 Jan.
1990) of the Labour Code and the allowance to compensate
for lack of job security provided for in Article L. 124-4-4 of the
same Code;
The allowance owed
by reason of failure to comply with the term of notice provided
for in Article L. 122-8 of the Labour Code and the compensatory
allowance provided for in Article L. 122-32-6 of the same Code;
The allowances owed
for paid holidays;
The allowances for
dismissal owed in compliance with collective labour agreements, or
collective agreements of branches, labour regulations, usages, and
the provisions of Articles L. 122-9, “L. 122-32-6” (Act n° 81-3
of 7 Jan. 1981), L. 761-5 and L. 761-7 “as well as the
allowance provided for in Article L. 321-6 of the Labour Code for
the whole of the portion lower than or equal to the ceiling
provided for in Article L; 143-10 of the Labour Code and for
one-fourth of the portion higherer than the said ceiling” (Act
n° 90-9 of 2 Jan. 1990);
(Ord. n° 82-130
of 5 Feb. 1982) The allowances owed, if there is
occasion, to employees under Articles L. 122-3-8, paragraph 2, L.
122-14-4, L. 122-14-5, paragraph 2, L. 122-32-7 and L. 122-32-9 of
the Labour Code.
Art. 2105
(D. n° 55-22 of 4 Jan. 1955)
Where, failing movables, the
creditors having a prior charge enumerated in the preceding
Article present themselves to be paid out of the proceeds of an
immovable competing with other creditors having prior charges over
the immovable, they have priority over the latter and enforce
their rights in the order indicated in the said
Article.
Section IV -
How Prior Charges are Preserved
Art. 2106
(D. n° 55-22 of 4 Jan. 1955)
Between creditors, prior charges
produce effect with regard to immovables only where they are
given public notice by being registered at the land
registry, in the manner determined by the following Articles and
by Articles 2146 and 2148.
Art. 2107
(D. n° 55-22 of 4 Jan. 1955)
The claims enumerated in Article 2104
“and the claims of the syndicate of co-owners enumerated in
Article 2103” (Act n° 94-624 of 21 July 1994) are exempt
from the formality of registration.
Art. 2108
(D. n° 55-22 of 4 Jan.
1955)
A seller who has precedence or a
lender who has procured funds for acquiring an immovable, preserve
his prior charge by a registration which must be made, at his
suit, in the form provided for in Articles 2146 and 2148, and
within a period of two months after the instrument of sale; the
prior charge ranks from the time of the said
instrument.
The action for
avoidance established by Article 1654 may not be brought after
lapse of the seller’s prior charge, or failing registration of it
within the period above fixed, to the detriment of third parties
who have acquired rights on the immovable in the purchaser’s right
and have registered them.
Art. 2108-1
(Act n° 67-547 of 7 July 1967)
In the case of a sale of a building to
be erected agreed for future delivery in accordance with
Article 1601-2, the prior charge of the seller or that of the
lender of funds ranks from the time of the instrument of sale
where registration is made before the expiry of a period of two
months from the acknowledgement of the completion of the immovable
by an authentic instrument.
Art. 2109
(D. n° 55-22 of 4 Jan. 1955)
A coheir or coparcener preserves his
prior charge over the property of each share or over the
property auctioned for the balances and reversions or for the
proceeds of the auction, by a registration made at his suit on
each one of the immovables, in the form provided for in Articles
2146 and 2148, and within a period of two months after the act of
partition or the auction [repealed by implication]; the
prior charge ranks from the time of the said act or of the
auction.
Art. 2110
Architects, contractors, masons and
other workers employed to erect, rebuild or repair buildings,
canals or other works, and those who, in order to pay and
reimburse them, have loaned the funds whose use has been
established, preserve their prior charge by the double
registration made:
1° Of the
memorandum which establishes the condition of the
premises;
2° Of the memorandum of acceptance,
from the time of
registration of the first memorandum.
Art. 2111
(D. n° 55-22 of 4 Jan. 1955)
Creditors and legatees of a deceased
person preserve their prior charge by a registration made
respecting each immovable of the succession, in the form provided
for in Articles 2146 and 2148, and within four months of the
opening of the succession; the prior charge ranks from the time of
the said opening.
Art. 2111-1(Act n° 84-595 of 12 July
1984)
Prospective owners preserve their
prior charge by a registration made at their suit respecting the
immovable which is the subject matter of the contract of lease
with option to sell, in the form provided for in Articles 2146 and
2148 and within a period of two months after the signature of that
contract; the prior charge ranks from the time of the said
contract.
Art. 2112
The assignees of these various
preferential claims all exercise the same rights as the assignors,
in their stead and place.
Art. 2113
(D. n° 55-22 of 4 Jan. 1955)
Mortgages registered on the immovables
allocated to the warranty of claims which have precedence, within
the period allowed by Articles 2108, 2109 and 2111 for requiring
the registration of a prior claim, may not prejudice creditors who
have a prior claim.
All preferential
claims subject to the formality of registration, with respect to
which the requisites above laid down in order to preserve the
prior charge have not been fulfilled, do not nevertheless cease to
be mortgages, but the mortgage ranks, with regard to third
parties, only from the time of the registration.
CHAPTER III - OF
MORTGAGES
Art. 2114
A mortgage is a right in rem on
immovables allocated to the discharge of an
obligation.
It is, by its
nature, indivisible and subsists in entirety on all the immovables
allocated, on each one and on each portion of those immovables.
It follows them, in
whatever hands they may pass.
Art. 2115
A mortgage exists only in the
instances and according to the forms authorized by law.
Art. 2116
It is either statutory, or judicial,
or conventional.
Art. 2117
(D. n° 55-22 of 4 Jan. 1955)
A statutory mortgage is one which
results from a statute.
A judicial mortgage
is one which results from judgments.
A conventional
mortgage is one which results from agreements.
Art. 2118
May alone be
mortgaged:
1° Immovable
property which may be the subject matter of legal transactions
between private individuals, and its accessories deemed
immovable;
2° The usufruct of
the same property and accessories for the time of its
duration.
Art. 2119
Movables may not be followed [in
the hands of another] in consequence of a
mortgage.
Art. 2120
No innovation is made by this Code to
the provisions of maritime laws concerning ships and
vessels.
Section I
- Of Statutory Mortgages
Art. 2121
(Act n° 65-570 of 13 July
1965)
Independently of statutory
mortgages resulting from other Codes or from particular statutes,
the rights and claims to which a statutory mortgage is granted
are:
1° Those of one
spouse, on the property of the other;
2° Those of minors
or adults in guardianship, on the property of a guardian or
statutory administrator;
3° Those of the
State, of departments, of communes and of public
institutions, on the property of collectors and accounting
administrators;
4° Those of a
legatee, on the property of the succession, under Article
1017;
5° Those stated in
Article 2101, 2°, 3°, 5°, 6°, 7° and 8°.
Art. 2122
(Act n° 65-570 of 13 July
1965)
With reservation both of the
exceptions resulting from this Code, from other Codes or from
particulars statutes and of the right of the debtor to avail
himself of the provisions of Articles 2161 and following, a
creditor benefiting from a statutory mortgage may register his
right on all the immovables which currently belong to his debtor,
subject to his complying with the provisions of Article 2146.
Under the same reservations, he may have complementary
registrations made respecting the immovables subsequently entered
into the patrimony of his debtor.
Section II
- Of Judicial Mortgages
Art. 2123
(D. n° 55-22 of 4 Jan. 1955)
A judicial mortgage results from
adversary or default judgments, final or provisional, in favour of
the one who has obtained them.
It results also
from arbitral awards provided with an enforcement order, as well
as from judicial decisions handed down in a foreign country and
whose execution has been authorized by a French
court.
With reservation of
the right of the debtor to avail himself, either pending suit, or
at any other time, of the provisions of Articles 2161 and
following, a creditor who benefits by a judicial mortgage may
register his right respecting all the immovables currently
belonging to his debtor, subject to his complying with the
provisions of Article 2146. He may, under the same reservations,
have complementary registrations made respecting the immovables
subsequently entered into the patrimony of his
debtor.
Section III - Of
Conventional Mortgages
Art. 2124
Conventional mortgages may be
granted only by those who have the capacity of conveying the
immovables which they burden with them.
Art. 2125
(Act of 31 Dec. 1910)
Those who have on an immovable only a
right suspended by a condition, or avoidable in certain cases, or
subject to rescission, may only grant a mortgage subject to the
same conditions or to the same rescission, except for what relates
to a mortgage granted by all the co-owners of an undivided
immovable, which by way of exception retains its effect, whatever
the subsequent result of the sale by auction or of the partition
may be.
Art. 2126
The property of minors, of adults in
guardianship and those of absentees, so long as its possession is
conferred only temporarily, may be mortgaged only for the causes
and in the forms established by law or by virtue of a judgment.
Art. 2127
A conventional mortgage may only be
granted by an instrument drawn up in authentic form […repealed
by implication].
Art. 2128
Contracts entered into in foreign
countries may not establish a mortgage on immovables in France,
unless there are provisions contrary to this principle in
political statutes or in treaties.
Art. 2129
(D. n° 55-22 of 4 Jan. 1955)
The granting of a conventional
mortgage is valid only where the authentic constitutive title of
the claim or a subsequent authentic instrument declares in
specific terms the nature and the location of each one of the
immovables on which the mortgage is granted, as stated in Article
2146 below.
Art. 2130
(D. n° 55-22 of 4 Jan. 1955)
Property to come may not be
mortgaged.
Nevertheless, where
existing and unencumbered property is insufficient to secure the
claim, a debtor may, in admitting that insufficiency, agree that
each property which he may subsequently acquire be specially
allocated thereto as the acquisitions proceed.
Art. 2131
Likewise, in case the existing
immovable or immovables, burdened with the mortgage, have perished
or suffered deteriorations, so that they have become insufficient
for the security of the creditor, the latter may either enforce at
once his reimbursement, or obtain an additional mortgage.
Art. 2132
A conventional mortgage is valid only
where the sum for which it is granted is certain and determined by
the instrument: where the claim resulting from the obligation is
conditional as to its existence or undetermined as to its value,
the creditor may require thr registration hereafter dealt with
only up to the amount of an estimated value expressly declared by
him, and which the debtor has the right to have reduced, if there
is occasion.
Art. 2133
(D. n° 55-22 of 4 Jan. 1955)
A mortgage once granted extends to all
the improvements happening to the mortgaged
immovable.
Where a person
possesses an existing right which permits him to build for his
benefit on another’s tenement, he may grant a mortgage on the
buildings whose erection is begun or merely planned; in case of
destruction of the buildings, the mortgage burdens by operation of
law new buildings erected on the same place.
Section IV - Of the
Rank of Mortgages with Respect to Each
Other
Art. 2134
(D. n° 55-22 of 4 Jan. 1955)
Between creditors, a mortgage, either
statutory, or judicial, or conventional, ranks only from the day
of the registration made by the creditor at the land registry, in
the form and manner prescribed by law.
Where several
registrations are required on the same day as to the same
immovable, that which is required by virtue of the instrument of
title bearing the remotest date shall be deemed of prior rank,
whatever the order resulting from the register provided for in
Article 2200 may be.
(Act n° 98-261
of 6 April 1998) However, the registrations of separations of
patrimony provided for by Article 2111, in the case referred to in
Article 2113, paragraph 2, as well as those of the statutory
mortgages provided for in Article 2121, 1°, 2° and 3°, shall be
deemed of a rank prior to the one of any registration of judicial
or conventional mortgages made on the same day.
(Act n° 98-261
of 6 April 1998) Where several registrations are made on the
same day as to the same immovable, either by virtue of instruments
of title provided for in the second paragraph but bearing the same
date, or for the benefit of requiring parties vested with the
prior charge or the mortgages referred to in the third paragraph,
the registrations rank equally whatever the order of the above
mentioned register may be.
The order of
priority between creditors having a prior charge or mortgage and
holders of warrants, insofar as the latter are secured on property
deemed immovable, is determined by the dates on which the
respective instruments have been given public notice, the
recording of warrants remaining subject to the special statutes
which regulate them.
Section V -
Of Particular Rules for the Statutory Mortgage of
Spouses
Art. 2135
[repealed]
Art. 2136
(Act n° 65-570 of 13 July
1965)
Where spouses have stipulated
participation in acquisitions, the clause, except for agreement to
the contrary, vests both by operation of law with the faculty to
register a statutory mortgage to secure the claim in
participation.
Registration may be
made before dissolution of the matrimonial regime; but it has
effect only from that dissolution and provided that the immovables
burdened exist at this date in the patrimony of the debtor spouse.
In case of
anticipated liquidation, a registration prior to the request has
effect from the day of the latter, a subsequent registration
having effect only from its date as stated in Article
2134.
A registration may
also be made within the year which follows the dissolution of the
matrimonial regime; it then takes effect from its date.
Art. 2137
(Act n° 85-1372 of 23 Dec.
1985)
Outside the case of participation in
acquisitions, a statutory mortgage may be registered only by
intervention of the court, as is explained in this Article and the
following one.
Where one of the
spouses institutes a claim for the purpose of having a debt
against his or her spouse or the heirs of the latter established,
he or she may, from the lodging of the claim, require a
provisional registration of his or her statutory mortgage,
by showing the original of the summons served, as well as a
certificate from the clerk which attests that the matter has been
referred to the court. The same right exists in case of
counter-claim, upon showing of a copy of the
pleadings.
(Act n° 65-570
of 13 July 1965) A registration is valid for three years and
renewable. It is subject to the rules of Chapters IV and following
of this Title.
Where the claim is
entertained, the judgment shall be mentioned, at the suit of the
plaintiff spouse, in the margin of the provisional registration,
on pain of nullity of that registration, within a month after the
day when it has become final. It constitutes the instrument of
title for a final registration which takes the place of the
provisional registration and which ranks at the date of the
latter. Where the amount of the capital of the debt allowed and of
its accessories exceeds the sum which the provisional registration
secures, the excess may be maintained only by a registration made
in accordance with the provisions of Article 2148 and taking
effect from its date, as stated in Article 2134.
Where the claim is
dismissed in full, the court, on request of the defendant spouse,
shall order the striking off of the provisional registration.
Art. 2138
(Act n° 65-570 of 13 July
1965)
Likewise, where, during the marriage,
there is occasion to transfer from one spouse to the other the
administration of certain property, in accordance with Article
1426 or Article 1429, the court, either in the judgment itself
which orders the transfer, or in a subsequent judgment, may decide
that a registration of the statutory mortgage will be made
respecting the immovables of the spouse who will have the
responsibility of administering it. If so, it shall fix the sum
for which registration will be made and designate the immovables
which will be burdened with it. If not, it may nevertheless decide
that the registration of a mortgage will be replaced by
establishing a pawn, of which it itself shall determine the terms.
Where, later on,
new circumstances seem to require it, the court may always decide,
by judgment, that either a first registration or complementary
registrations will be made or that a pawn will be
established.
The registrations
provided for by this Article shall be made and renewed at the
request of the Government procurator’s office.
Art. 2139
(Act n° 65-570 of 13 July
1965)
Where a statutory mortgage has been
registered under Articles 2136 or 2137, and unless an express
clause of the ante-nuptial agreement prohibits it, the spouse who
profits by the registration may agree, to the benefit of the other
spouse’s creditors or of his or her own creditors, to an
assignment of his or her rank or to a subrogation to the rights
resulting from his or her registration.
It shall be the
same as to a statutory mortgage or, possibly, a judicial mortgage
securing periodical payments ordered, or liable to be ordered “to
a spouse, for himself or herself” (Act n° 85-1372 of 23 Dec.
1985) or for the children.
Where the spouse
who profits by the registration, by refusing to agree to an
assignment of rank or to a subrogation, prevents the other spouse
from creating a mortgage which the interest of the family would
require or where he or she is unable to express his or her
intention, the judges may authorize that assignment of rank or
that subrogation subject to the conditions which they deem
necessary for the protection of the rights of the spouse
concerned. They have the same powers where the ante-nuptial
agreement contains the clause referred to in the first paragraph.
Art. 2140
(Act n° 65-570 of 13 July
1965)
Where a mortgage has been registered
under Article 2138, an assignment of rank or a subrogation may,
for the duration of the transfer of administration, result only
from a judgment of the court which has ordered that
transfer.
As soon as the
transfer of administration comes to an end, an assignment of rank
or a subrogation may be made in the way provided for in Article
2139.
Art. 2141
(Act n° 65-570 of 13 July
1965)
Judgments given under the two
preceding Articles shall be handed down in the forms regulated by
the Code of Civil Procedure.
Subject to the
provisions of Article 2137, a statutory mortgage of spouses is
subject, as to renewal of registrations, to the rules of Article
2154.
Art. 2142
(Act n° 65-570 of 13 July
1965)
The provisions of Articles 2136 to
2141 shall be made known to spouses or future spouses in the way
provided for by a decree.
Section
VI - Of Particular Rules for the Statutory Mortgage
of Persons in
Guardianship
(D. n° 55-22 of 4 Jan. 1955)
Art. 2143
(Act n° 64-1230 of 14 Dec.
1964)
At the opening of any guardianship,
the family council, after hearing the guardian, shall decide
whether a registration must be demanded on the immovables of the
guardian. If so, it shall fix the sum for which the registration
will be made and designate the immovables which will be burdened
with it. If not, it may nevertheless decide that the registration
of a mortgage will be replaced by the establishing of a pawn, of
which it itself shall determine the terms.
In the course of
the guardianship, the family council may always order, where the
interests of the minor or of the adult in guardianship seem to
require it, that either a first registration or complementary
registrations will be made or that a pawn will be
established.
In the cases where
statutory administration takes place under Article 389, the judge
of guardianships, who gives judgment either of his own motion or
on the request of a relative by blood or by marriage or of the
Government procurator’s office, may likewise decide that a
registration will be made on the immovables of the statutory
administrator, or that the latter must establish a pawn.
The registrations
provided for by this Article shall be made at the request of the
clerk of the judge of guardianships, and the costs shall be
charged to the account of the guardianship.
Art. 2144
A ward, after his or her coming of age
or emancipation, or an adult in guardianship, after withdrawing of
the guardianship of adults, may require the registration of his or
her statutory mortgage or a complementary registration, within a
period of one year.
This right may,
furthermore, be exercised by the heirs of the ward or of the adult
in guardianship within the same period, and in case of death of
the person under a disability before the ending of the
guardianship or the withdrawing of the guardianship of adults,
within the year of the death.
Art. 2145
During the minority and the
guardianship of adults, a registration made by virtue of Article
2143 must be renewed by the clerk of the tribunal d’instance,
in accordance with Article 2154 of the Civil Code.
CHAPTER IV - OF
THE MODE OF REGISTRATION OF PRIOR CHARGES AND
MORTGAGES
(D n° 55-22 of 4 Jan. 1955)
Art. 2146
Shall be registered at the land
registry of the location of the property:
1° Prior charges
over immovables, subject to the sole exceptions referred to in
Article 2107;
2° Statutory,
judicial or conventional mortgages.
A registration
which may never be made by the registrar of his own motion may
take place only for a sum and for immovables which are determined,
subject to the conditions laid down in Article
2148.
In any case, the
immovables respecting to which a registration is required must be
individually designated, with indication of the commune
where they are situated, exclusive of any general designation,
even limited to a given territorial area.
Art. 2147
Creditors who have a prior charge or
mortgage may not profitably make registration respecting to the
preceding owner, from the recording of the transfer made for the
benefit of a third party. Notwithstanding that recording, a
seller, lender of funds for acquisition and a coparcener may
profitably register, within the periods provided for in Articles
2108 and 2109, the prior charges which Article 2103 confers upon
them.
A registration
produces no effect between the creditors of a succession where it
has been made by one of them only after the death, in case the
succession is accepted only under benefit of inventory or is
declared vacant. However, the prior charges granted to a seller, a
lender of funds for an acquisition, a coparcener, as well as to
the creditors and legatees of the deceased, may be registered
within the periods provided for in Articles 2108, 2109 and 2111,
notwithstanding an acceptance under benefit or the vacancy of the
succession.
(Ord. N° 59-71
of 7 Jan. 1959) In case of seizure of immovables, of [judicial
liquidation] or of judicial arrangement, the registration of prior
charges and mortgages produces the effects regulated by the
provisions of the Code of Civil Procedure and by those on
[judicial liquidation] and judicial arrangement.
Art. 2148
(D. n° 55-52 of 4 Jan. 1955; Act n° 56-780 of 4Aug.
1956; D. n° 59-89 of 7 Jan. 1959; Ord. N° 67-839 of 28 Sept. 1967;
Act n° 98-261 of 6 April 1998)
The registration of prior charges and
mortgages shall be made by the land registrar following the filing
of two schedules dated, signed and certified to be corresponding
to each other by the signatory of the certificate of identity
provided for in paragraph 13 of this Article; a decree in Conseil
d’État shall determine the requirements as to form which the
schedule designed to be kept in the land registry must comply
with. In the case where the registrant did not use a prescribed
form, the registrar shall nevertheless accept the deposit, subject
to the provisions of the penultimate paragraph of this Article.
However, in order
to have judicial mortgages or securities registered, a creditor
shall present, either himself or through a third party, to the
land registrar:
1° The original, an
authentic office copy or a literal extract from the judicial
decision giving rise to the mortgage, where the latter results
from the provisions of Article 2123;
2° The
authorization of the judge, the judicial decision or the
instrument of title in matters of judicial provisional
securities.
Each of the
schedules shall contain exclusively, on pain of rejection of the
formality:
1° The designation
of the creditor, of the debtor or of the owner, where the debtor
is not the owner of the burdened immovable, in accordance with
paragraph 1 of Articles 5 and 6 of the Decree of 4 January
1955;
2° The election of
domicile, by the creditor, in any place situated in France, in
overseas departments or in the territorial authorities
of Saint-Pierre -et-Miquelon;
3° The indication
of the date and nature of the instrument of title giving rise to
the security or of the instrument of title creating the claim as
well as the origin of the obligation secured by the prior charge.
Where a notarial instrument is concerned, the name and residence
of the draftsman shall be specified. As to the registrations
required in compliance with the provisions referred to in Articles
2111 and 2121, 1°, 2° and 3°, the schedules shall set out the
origin and nature of the claim;
4° The indication
of the capital of the claim, of its accessories and of the normal
date of maturity; in any case, the applicant must appraise the
annuities, performances and rights undetermined, contingent and
conditional, without prejudice to the application of Articles 2161
and following for the benefit of the debtor; and where the rights
are contingent or conditional, he must summarily indicate the
event or the condition upon which the existence of the claim
depends. In the cases where the claim is backed with an
index-linking clause, the registration must mention the original
amount of the claim as well as the index-linking clause. Where the
amount of the claim is not denominated in French currency, it must
be immediately followed by its exchange value in French francs
(euros) determined according to the latest rate of exchange
known at the date of the title creating the
claim;
5° The designation,
in accordance with paragraphs 1 and 3 of Article 7 of the Decree
of 4 January 1955, of each immovable respecting to which a
registration is required;
6° The indication
of the date, volume and number under which was registered the
title of ownership of the debtor (or of the owner, where the
debtor is not the owner of the immovables burdened), when that
title is subsequent to 1 January 1956;
7° The
certification that the amount of the capital of the secured claim
mentioned in the schedule is not greater than that shown in the
title creating the security or the claim.
The schedule
designed to be kept in the land registry must contain, in
addition, a mention of certification of the identity of the
parties, prescribed by Articles 5 and 6 of the Decree of 4 January
1955.
A filing shall be
refused:
1° Failing the
presentation of the title creating the security or the claim as to
mortgages and judicial securities;
2° Failing the
mention referred to in paragraph 13, or where the immovables are
not individually designated, with indication of the commune
where they are situated.
Where the
registrar, after having accepted the filing, notices the omission
of one of the mentions prescribed by this Article, or a
discrepancy between, on the one hand, the statements relating to
the identity of the parties or to the designation of the
immovables contained in the schedule, and, on the other hand,
those same statements contained in schedules or titles already
recorded since 1 January 1956, the formality shall be rejected,
unless the applicant regularizes the schedule or produces the
proof which establishes its accuracy, in which cases, the
formality ranks on the date of the filing of the schedule noted in
the register of filings.
A formality shall
also be rejected where the schedules include an amount of secured
claim greater than that which appears in the title as regards
mortgaged and judicial securities, as well as in the case referred
to in the first paragraph of this Article, where the applicant
does not substitute a new schedule on a prescribed form to the
schedule irregular as to form.
The decree above
provided for shall determine the details of a refusal of a filing
or of a rejection of a formality.
Art. 2148-1
(Act n° 79-2 of 2 Jan. 1979)
For the sake of their registration,
prior charges and mortgages bearing on shares depending on a
building subject to the status of co-ownership shall be deemed not
to burden the portions of the common parts included in those
shares.
Nevertheless, the
registered creditors shall enforce their rights on the said
portion taken in its consistence at the time of the transfer whose
proceeds are the subject matter of the division; that portion
shall be deemed burdened with the same securities as the
individual shares and with those securities
only.
Art. 2149
(D. n° 55-22 of 4 Jan. 1955)
Shall be recorded by the registrar,
under the form of mentions in the margin of the existing
registrations, the subrogations to prior charges and mortgages,
withdrawals, reductions, assignments of priority and transfers
which have been granted, extensions of time, changes of domicile
and, as a general rule, any modifications, in particular as to the
person of the creditor who benefits by the registration, which do
not have the effect of worsening the condition of the debtor.
It shall be the
same as to gratuitous transfers by inter vivos or testamentary
instrument, on condition of restitution, bearing on claims secured
by prior claims or mortgages.
(D. n° 59-89 of
7 Jan. 1959) The instruments and judicial decisions recording
those different agreements or transfers and the copies, extracts,
or office copies filed at the land registry for the purpose of the
execution of the mentions shall contain the designation of the
parties in accordance with the first paragraph of Articles 5 and 6
of the Decree of 4 January 1955. That designation need not be
certified.
Furthermore, in
case a modification mentioned bears only on part of the immovables
burdened, the said immovables shall be individually designated, on
pain of refusal of the filing.
Art. 2150
(Act of 1 March 1918)
The registrar shall mention the filing
of the schedules on the register prescribed by Article 2200
hereinafter, and shall return to the applicant both the instrument
of title or the office copy of the same, and one of the schedules
at the bottom of which he shall mention the date of the filing,
the volume and the number under which the schedule intended for
the archives has been filed.
The date of the
registration is determined by the mention entered into the
register of filings.
The schedules
intended for the archives shall be bound without being removed
thanks to and at the expense of the registrars.
Art. 2151
(D. n° 59-89 of 7 Jan. 1959)
A creditor with a prior charge whose
title has been registered , or a mortgage creditor registered for
a capital producing interest and arrears, has the right to be
marshalled, for three years only, on the same rank as for his
principal, without prejudice to the special registrations to be
made, importing mortgage from their date, for the interest and
arrears other than those preserved by the original registration.
Art. 2152
(Act of 1 March 1918)
A person who has required a
registration, as well as his representatives or assigns under an
authentic instrument, are entitled to change at the land registry
the domicile elected by him in that registration, provided they
choose and designate a new one “situated in metropolitan France,
in overseas départments or in the territorial authority
of Saint-Pierre-et-Miquelon" (Act n° 98-261 of 6
April 1998).
Art. 2153 [repealed]
Art. 2154 (Ord . n° 67-839 of 28 Sept.
1967)
Registration preserves a prior charge
or a mortgage up to the date which the creditor shall fix
complying with the following provisions:
Where the principal
of a secured obligation must be paid at one or several due dates,
the extreme effective date of a registration made before the due
date or the last due date provided for is, at most, two years
after that due date without allowing however the duration of the
registration to exceed thirty-five years.
Where the due date
or the last due date is undetermined or where it is prior to or
concomitant with the registration, the extreme effective date of
that registration may not be more than ten years after the day of
the formality.
Where an obligation
is such that neither of the preceding paragraphs can be applied,
the creditor may require either a single registration to secure
the whole of the obligation up to the remotest date, or a distinct
registration to secure each of the objects of that obligation up
to a date determined in accordance with the provisions of the said
paragraphs. It shall be the same where, the first of those
paragraphs alone being applicable, the different objects of the
obligation do not involve the same due dates or last due
dates.
Art. 2154-1 (Ord . n° 67-839 of 28 Sept.
1967)
A registration ceases to produce
effect where it has not been renewed at the latest at the date
referred to in the first paragraph of Article 2154.
Each renewal must
be required up to a determined date. That date shall be fixed as
stated in Article 2154 by distinguishing according as to whether
the due date or the last due date, even where it results from an
extension of time, is determined or not and whether it is
subsequent or not to the day of the renewal.
Renewal is
compulsory, in case the registration has produced its statutory
effect, in particular, in case of sale of the immovable burdened,
until payment or deposit of the proceeds.
Art. 2154-2 (Ord . n° 67-839 of 28 Sept.
1967)
Where one of the periods of two years, ten years and thirty-five
years referred to in Articles 2154 and 2154-1 has not been
complied with, a registration does not have any effect beyond the
date of the expiry of that period.
Art. 2154-3 (Ord . n° 67-839 of 28
Sept. 1967)
Where a provisional registration of the statutory mortgage of
spouses or of a judicial mortgage has been made, the provisions of
Articles 2154 to 2154-2 shall apply to the final registration and
to its renewal. The date from which the periods shall begin to run
is that of the final registration or of its renewal.
Art. 2155
(D. n° 55-22 of 4 Jan. 1955)
Unless otherwise stipulated, the
expenses of the registrations shall be advanced by the registrant
and charged to the debtor, and the expenses of the recording of
the instrument of sale which a seller may require in view of the
registration of his prior charge within the prescribed time, shall
be charged to the seller.
Art. 2156
(D. n° 59-89 of 7 Jan. 1959)
Actions to which registrations may
give rise against creditors shall be brought before the court
having jurisdiction, by summons served upon their persons, or at
the last of the domiciles elected by them on the schedules of
registration, even in case of death, either of the creditors, or
of those at whose residence they have elected domicile.
CHAPTER V -
OF THE CANCELLATION AND REDUCTION OF
REGISTRATIONS
Section I - General Provisions
Art. 2157
Registrations shall be cancelled by
the consent of the parties concerned and having capacity therefor,
or by virtue of a judgment not subject to appeal or having become
res judicata.
Art. 2158
(D. n° 55-22 of 4 Jan. 1955)
In both cases, those who require the
cancellation shall file at the registrar's office the office copy
of the authentic instrument containing the consent, or that of the
judgment.
(Ord. n° 67-839
of 28 Sept. 1967) No document in proof is required to
support the office copy of the authentic instrument concerning the
statements establishing the status, capacity and qualification of
the parties, where those statements are certified as accurate by
the notaire or the administrative
authority.
Art. 2159
A cancellation without consent
must be applied for before the court in whose territory the
registration has been made, unless that registration was made to
secure a contingent or undetermined judgment, on whose enforcement
or determination the debtor and the alleged creditor are in
litigation or which must be judged in another court; in which case
the action for cancellation shall be brought or remitted there.
However, the
agreement entered into by the creditor and the debtor to bring the
action, in case of controversy, before a court which they have
designated, shall be enforced between them.
Art. 2160
Cancellation must be ordered by the
courts, where a registration was made without being based on
legislation or on a title, or where it was made by virtue of a
title either irregular or extinguished or satisfied, or where the
rights of prior charge or of mortgage are wiped out by legal
remedies.
Art. 2161
(D. n° 55-22 of 4 Jan. 1955)
Where the registrations made
under Articles 2122 and 2123 are excessive, the debtor may apply
for their reduction by complying with the rules of jurisdiction
established by Article 2159.
Are deemed
excessive the registrations which burden several immovables where
the value of a single one or of some of them exceeds a sum equal
to double of the amount of the claims in capital and statutory
accessories, increased by one-third of that
amount.
Art. 2162
(D. n° 55-22 of 4 Jan. 1955)
May also be reduced as excessive the
registrations made according to an appraisal made by the creditor
of conditional, contingent or undetermined claims whose amount was
not fixed by the agreement.
In that case, the
excess shall be appraised by the judges according to the
circumstances, probabilities and presumptions of fact, in such a
manner as to conciliate the rights of the creditor with the
interest of preserving credit to the debtor, without prejudice to
new registrations to be made with a mortgage from the day of their
date, where events have caused the undetermined claims to a larger
sum.
Section II -
Particular Provisions Relating to Mortgages of Spouses and of
Persons in Guardianship
Art. 2163
(Act n° 65-570 of 13 July
1965)
Where a statutory mortgage has been
registered under Articles “2136 or 2137” (Act n° 85-1372 of 23
Dec. 1985), and except for an express clause of the
ante-nuptial agreement which forbids it, the spouse who profits by
the registration may give a total or partial withdrawal of it.
It shall be the
same as to a statutory mortgage, or possibly a judicial mortgage
securing periodical payments ordered, or liable to be ordered “to
a spouse, for himself or herself” (Act n° 85-1372 of 23 Dec.
1985) or for the children
Where the spouse
who profits by the registration, by refusing to reduce the
mortgage or to give a withdrawal of it, prevents the other spouse
from creating a mortgage or making a transfer which the interest
of the family would require or where he or she is unable to
express his or her intention, the judges may authorize that
reduction or withdrawal subject to the conditions which they deem
necessary for the protection of the rights of the spouse
concerned. They have the same powers where the ante-nuptial
agreement contains the clause referred to in the first paragraph.
Where a mortgage
has been registered under Article 2138, the registration may, for
the duration of the transfer of administration, be cancelled or
reduced only by virtue of a judgment of the court which has
ordered that transfer.
As soon as the
transfer of administration comes to an end, a cancellation or
reduction may be made in the way provided for in paragraphs 1 and
3 above.
Art. 2164
(Act n° 64-1230 of 14 Dec.
1964)
Where the value of the immovables on
which the mortgage of a minor or of an adult in guardianship has
been registered notably exceeds what is necessary to secure the
management of the guardian, the latter may request the family
council to reduce the registration to the immovables which are
sufficient.
He may likewise
request it to reduce the appraisal which has been made of his
obligations towards the ward.
In the same cases,
where a registration has been made on his immovables under Article
2143, a statutory administrator may request the judge of
guardianships to reduce it, either as to the immovables burdened,
or as to the sums secured.
Furthermore, if
there is occasion, a guardian and a statutory administrator may,
subject to the same conditions, request a total withdrawal of the
mortgage.
The total or
partial cancellation of the mortgage shall be made upon
presentation of an instrument of withdrawal signed by a member of
the family council having received delegation to that effect, as
to the immovables of a guardian, and upon presentation of a
judgment of the judge of guardianships, as to the immovables of a
statutory administrator.
Art. 2165
(Act n° 65-670 of 13 July
1965)
Judgments on request of a spouse, a
guardian or a statutory administrator in the cases provided for in
the preceding Articles shall be handed down in the forms regulated
in the Code of Civil Procedure.
(D. n° 55-22 of
4 Jan. 1955) Where the court orders the reduction of a
mortgage to certain immovables, the registrations made on all the
others shall be cancelled.
CHAPTER
VI - OF THE EFFECT OF PRIOR CHARGES AND MORTGAGES AGAINST
THIRD PARTIES IN POSSESSION
Art. 2166
(Ord. n° 59-71 of 7 Jan. 1959)
Creditors who have a prior charge or a
mortgage registered on an immovable, follow it in whatever hands
it may pass, in order to be marshalled and paid following the
order of their claims or registrations.
Art. 2167
Where a third party in possession does
not comply with the formalities hereinafter established to free
his property, he remains, by the sole effect of the registrations,
liable as a possessor for all the mortgage debts and has the
benefit of the time limits and periods granted to the original
debtor.
Art. 2168
A third party in possession is bound,
in the same case, either to pay all the interest and capital due,
to whatever sum they may amount, or to relinquish the mortgaged
immovable, unreservedly.
Art. 2169
Where a third party in possession
fails to comply fully with one of these obligations, each
mortgagee is entitled to have the immovable sold against him,
thirty days after serving an order to pay on the original debtor,
and demanding that the third party in possession pay the debt due
or relinquish the property.
Art. 2170
Nevertheless, a third party in
possession who is not personally liable for the debt, may object
to the sale of the mortgaged property which has been transferred
to him, where other immovables mortgaged for the same debt have
remained in the possession of the principal debtor or debtors, and
require their previous seizure and sale in the manner regulated in
the Title Of Suretyship ; during these proceedings, the
sale of the mortgaged property shall be
postponed.
Art. 2171
The defence of seizure and sale
is not available against a creditor who benefits by a prior charge
or who has a special mortgage on the immovable.
Art. 2172
As to relinquishment by reason
of a mortgage, it may be done by all third parties in possession
who are not personally liable for the debt and who have the
capacity to transfer.
Art. 2173
It may be done even after the third
party in possession has acknowledged the debt or where a judgment
has been given against him in that capacity only: until a sale by
auction, relinquishment does not prevent a third party in
possession from taking back the immovable by paying the whole debt
and the costs.
Art. 2174
Relinquishment by reason of a mortgage
shall be made at the clerk’s office of the court of the situation
of the property; and that court shall record it.
On the petition of
the most diligent party concerned, a curator shall be appointed
for the immovable relinquished, against whom the sale of the
immovable shall be conducted in the forms prescribed for forced
sales.
Art. 2175
Deteriorations resulting from the act
or negligent conduct of a third party in possession, to the
detriment of creditors benefiting by a mortgage or a prior
charge, give rise against him to an action for compensation; but
he recovers his upkeep and improvements only up to the additional
value resulting from the improvement.
Art. 2176
The fruits of the mortgaged immovable
are owed by a third party in possession only from the day of the
demand to pay or relinquish, and, where the proceedings instituted
have been discontinued for three years, from the new demand which
will be made.
Art. 2177
Servitudes and rights in rem which the third party in possession
had on the immovable before his possession, are revived after the
relinquishment or after the sale by auction made against
him.
His personal
creditors, after all those who are registered on the previous
owners, shall enforce their mortgage on the property relinquished
or auctioned, according to their rank.
Art. 2178
A third party in possession who has
paid the mortgage debt, or relinquished the immovable, or suffered
the forced sale of that immovable has a remedy for warranty, as
allowed by law, against the principal debtor.
Art. 2179
A third party in possession who wishes
to redeem his property by paying the price must comply with the
formalities which are established in Chapter VIII of this Title.
CHAPTER VII -
OF THE EXTINGUISHMENT OF PRIOR CHARGES AND
MORTGAGES
Art. 2180
Prior charges and mortgages are
extinguished :
1° By
extinguishment of the principal obligation;
2° By the
creditor’s renunciation of the mortgage;
3° By the
fulfilment of the formalities and conditions prescribed to third
parties in possession to redeem the property which they have
acquired;
4° By
prescription.
Prescription is
acquired to a debtor, as to the property which is in his hands, by
the time prescribed by the statute of limitations in respect of
the actions which give a mortgage or a prior charge.
(Ord. n° 59-71
of 7 Jan. 1959) As to the property which is in the hands of a
third party in possession, it is acquired by him by the time
regulated for prescription of ownership for his benefit: in the
case where prescription depends upon a title, it begins to run
only from the day when that title has been recorded in the land
registry of the situation of the immovables.
Registrations made
by a creditor do not interrupt the running of the prescription
established by law in favour of the debtor or of the third party
in possession.
CHAPTER VIII - OF
THE MODE OF REDEEMING PROPERTY FROM PRIOR CHARGES AND
MORTGAGES
Art. 2181
(Ord. n° 59-71 of 7 Jan. 1959)
Contracts which transfer the ownership
of immovables or immovable rights in rem which third parties in
possession wish to redeem from prior charges and mortgages shall
be recorded in the land registry of the situation of the property,
in accordance with the statutes and regulations relating to land
registration.
Art. 2182
(Ord. n° 59-71 of 7 Jan. 1959)
The mere recording in the land
registry of the conveyances does not redeem an immovable from
mortgages and prior charges which burden it.
A seller conveys to a purchaser only the ownership and the rights
he himself had on the thing sold: he conveys them subject to the
same prior charges and mortgages of which the thing sold was
burdened.
Art. 2183
(Ord. n° 59-71 of 7 Jan. 1959)
Where a new owner wishes to protect
himself against the effect of the proceedings authorized in
Chapter VI of this Title, he is bound, either before the
proceedings, or within one month, at the latest, after the first
demand which is made to him, to serve on the creditors, at the
domiciles they have elected in their registrations, notice
of:
1° An extract of
his title, containing only the date and character of the
instrument, the name and precise designation of the seller, or of
the donor, the nature and situation of the thing sold or donated;
and where a set of items of property is concerned, only the
general designation of the domain and of the arrondissements
in which it is situated, the price and the costs forming part
of the sale price, or the appraisal of the thing where it has been
donated;
2° An extract of
the recording of the instrument of sale;
3° A table in three
columns, of which the first shall contain the dates of the
mortgages and those of the registrations; the second, the names of
the creditors; the third, the amount of the claims registered.
Art. 2184
The purchaser or the donee shall
declare, in the same instrument, that he is ready to pay,
forthwith, the mortgage debts and charges, only up to the amount
of the price, without distinction between debts due or not
due.
Art. 2185
Where the new owner has served that
notice within the fixed period, any creditor whose title has been
registered, may require the sale of the immovable by public
auction, provided:
1° That the request
is served on the new owner within forty days, at the latest, of
the notice served at his request, adding two days per five
myriametres of distance between the elected domicile and the real
domicile of each requiring creditor;
2° That it contains
undertaking of the requesting party to raise the price, or to have
it raised, to one-tenth above the one stipulated in the contract,
or declared by the new owner;
3° That the same
notice is served within the same period on the previous owner,
principal debtor;
4° That the
original and the copies of these notices are signed by the
requiring creditor, or by his agent with express authority, who,
in that case, is obliged to give a copy of his power of
attorney;
5° That he offers
to give security up to the amount of the price and
charges.
All of which, on
pain of annulment.
Art. 2186
Where the creditors have failed to
require a sale by auction within the period and in the manner
prescribed, the value of the immovable remains definitely fixed at
the price stipulated in the contract, or declared by the new
owner, who is in consequence discharged from all prior charge and
mortgage, by paying the said price to the creditors who are
allowed to receive it according to their rank, or by depositing
it.
Art. 2187
In case of a resale by auction, it
shall take place by complying with the forms established for
forced sales, at the suit either of the creditor who has required
it, or of the new owner.
The party seeking
execution shall state in the placards the price stipulated in the
contract, or declared, and the additional sum to which the
creditor has obliged himself to raise it or to have it raised.
Art. 2188 (Ord n° 59-71 of 7 Jan.
1959)
The highest bidder is obliged, beyond
the auction price, to return to the dispossessed purchaser or
donee the expenses and proper costs of his contract, those of the
registration at the land registry, those of the notices and those
incurred by him to have the resale made.
Art. 2189 (Ord n° 59-71 of 7 Jan.
1959)
A purchaser or donee who retains the
immovable put up for auction, by becoming the highest bidder, is
not obliged to have the judgment enforcing the auction
registered.
Art. 2190
The withdrawal of the creditor who has
required a sale by auction may not prevent the public auction,
even where the creditor pays the amount of the bid, unless all the
other mortgagees expressly agree thereto.
Art. 2191
A purchaser who has become the
final bidder has his remedy such as allowed by law against the
seller, for the repayment of what exceeds the price stipulated by
his title, and for the interest of that excess, from the day of
each payment.
Art. 2192
In the case where the title of the new
owner includes immovables and movables, or several immovables,
some mortgaged and some not, situated in the same or in several
arrondissements of registries, transferred for one and the
same price, or for distinct or separate prices, forming part or
not of the same business, the price of each immovable subject to
particular and separate registrations, shall be declared in the
notice of the new owner, by itemizing the total price expressed in
the title, if there is occasion.
A creditor who
outbids may in no case be compelled to extend his bid either over
the movables, or over immovables other than those which are
mortgaged for his claim and situated in the same
arrondissement; but the new owner has a remedy against his
predecessors in title for compensation for the loss which he may
suffer, either from the division of the objects of his purchase,
or from that of the business.
CHAPTER IX - Art. 2193 to 2195 [repealed by
implication]
CHAPTER
X - OF THE PUBLIC INSPECTION OF REGISTERS AND OF THE
RESPONSIBILITY OF REGISTRARS
Art. 2196
(D. n° 55-22 of 4 Jan. 1955)
Land registrars are obliged to
deliver to all those who so require a copy or extract of the
documents, other than the schedules of registration, filed at
their registry within the limit of fifty years preceding that of
the demand, and a copy or extract of the subsisting registrations,
“or a certificate to the effect that there exists no document or
registration coming within the scope of the request” (Ord. n°
67-839 of 28 Sept. 1967).
They are also
obliged to deliver upon demand, within a period of ten days,
copies of or extracts from the land register “or a certificate to
the effect that there exists no entry coming within the scope of
the request” (Ord. n° 67-839 of 28 Sept. 1967).
Art. 2197
(D. n° 59-89 of 7 Jan. 1959)
They are responsible for the loss
resulting:
1° From failure to
record instruments and judicial decisions filed at their
registries, and required registrations, any time that failure to
record does not result from a decision of refusal or of rejection;
2° From the
omission, in the certificates which they deliver, of one or
several of the existing registrations, unless, in this latter
case, the error comes from insufficient or inaccurate
designations which may not be ascribed to them.
Art. 2198
(Ord. n° 67-839 of 28 Sept.
1967)
Where a registrar, delivering a
certificate to the new holder of a right referred to in Article
2181, omits a registration of a prior charge or mortgage, the
right remains in the hands of the new holder free from the
undisclosed prior charge or mortgage, provided the delivery of the
certificate has been required by the party concerned as a
consequence of the recording of his title. Without prejudice to
his possible remedy against the registrar, the creditor who
benefits by the omitted registration does not lose the right to
avail himself of the rank which that registration confers on him
so long as the price has not been paid by the purchaser or as
intervention in the ranking initiated between the other creditors
is permitted.
Art. 2199
(D. n° 59-89 of 7 Jan. 1959)
Except in the cases where they are
entitled to refuse a filing or to reject a formality, in
accordance with the provisions of statutes and regulations
relating to land registration, registrars may not refuse or delay
the fulfilment of a formality or the delivery of documents duly
required, on pain of damages to the parties; for that purpose,
memoranda of refusals or delays shall be, at the suit of the
requiring party, forthwith drawn up, either by a judge of the
tribunal d’instance, or by a court usher of the court, or
by another bailiff or a notaire with the assistance of two
witnesses.
Art. 2200
(D. n° 59-89 of 7 Jan. 1959)
Registrars are obliged to
have a register in which they shall enter, day by day and in
numerical order, the filings made with them of instruments,
judicial decisions, schedules and, generally, of documents filed
for the purpose of the execution of a formality of registration.
They may fulfil the
formalities only at the date and in the order of the filings made
with them.
(D. n° 60-4 of 6
Jan. 1960) Each year a duplicating of the registers closed
during the preceding year shall be deposited without cost at the
clerk’s office of a tribunal de grande instance or of a
tribunal d’instance situated in an arrondissement
different from the one where the registrar
resides.
(D. n° 55-22 of
4 Jan. 1955) The court in whose clerk’s office the duplicating
will be deposited shall be designated by an order of the Minister
of Justice.
A decree shall
determine the details of application of this Article and, in
particular, the technical processes which may be used for the
making of the duplicating to be deposited at the clerk’s office.
Art. 2201
(D. n° 59-89 of 7 Jan. 1959)
A register kept in compliance with the
preceding Article shall be numbered and initialled upon each page,
by first and last, by the juge d’instance in whose
territory the registry is established. It shall be closed every
day.
(Act n° 98-261
of 6 April 1998) Notwithstanding the preceding paragraph, a
written data-processing document may take the place of a register;
in that case, it must be identified, numbered and dated as soon as
it is established by wholly trustworthy forms of
proof.
Art. 2202
(Act n° 46-2154 of 7 Oct.
1946)
In performing their duties, registrars
are obliged to comply with all the provisions of this Chapter, on
pain of a fine “from 200 to 2 000 francs (30 to 300 €)” (Act n°
56-780 of 4 Aug. 1956) for the first infringement, and of
dismissal for the second; without prejudice to damages to the
parties, which shall be paid before the fine.
Art. 2203
(Ord. N° 59-71 of 7 Jan. 1959
)
The mentions of the filings shall be
made on the register whose keeping is prescribed by Article 2200,
following each other, without any blank or interlineations, on
pain, against the registrar, of a fine of 400 to 4 000 francs (60
to 600 €), and of damages to the parties, also payable by priority
over the fine.
Art. 2203-1
(Act n° 98-261 of 6 April
1998)
In the land registries whose register
is kept in accordance with the provisions of Article 2201,
paragraph 2, there shall be delivered a certificate of the
formalities accepted for filing and awaiting recording in the land
register on the immovables individually designated in the request
for information. A decree in Conseil d’État shall specify
the contents of that certificate.
TITLE XIX
OF FORCED SALES AND OF RANKING AMONG
CREDITORS
CHAPTER I - OF
FORCED SALES
Art. 2204
A creditor may sue for a forced sale:
1° of immovable property and of its accessories deemed to be
immovables belonging in ownership to his debtor; 2° of a usufruct
belonging to his debtor on property of the same nature.
Art. 2204-1
(Act n° 72-626 of 5 July 1972)
The proceedings and forced sale
produce towards the parties and third parties the effects
determined by the Code of Civil Procedure.
Art. 2205 [repealed]
Art. 2206
The immovables of a minor, even
emancipated, or of an adult in guardianship may not be put up for
sale before seizure and sale of the movables.
Art. 2207
Seizure and sale of the movables are not required before a forced
sale of the immovables possessed in undivided ownership by an
adult and a minor or an adult in guardianship, where the debt is
common to them, or where proceedings have been initiated against
an adult or before the guardianship of adults.
Art. 2208 [repealed]
Art. 2209
A creditor may enforce the sale of the
immovables which are not mortgaged to him, only in the case of
insufficiency of the property mortgaged to him.
Art. 2210
A forced sale of items of property
situated in different arrondissements may only be
instigated successively, unless they are part of a same
business.
It shall take place
in the court in whose territory the main place of the business is,
or failing a main place, the part of the property which brings in
the greatest income, according to the assessment roll.
Art. 2211
Where the items of property mortgaged
to the creditor and those not mortgaged, or those situated in
different arrondissements, form part of one and the same
business, the sale of the whole shall be enforced at the same
time, if the debtor so requires; and the proceeds of the auction
shall be itemized, if there is occasion.
Art. 2212
Where a debtor proves, by
authentic leases, that the net and free income of his immovables
for a year, is sufficient for payment of the debt in capital,
interest and costs, and where he offers the assignment thereof to
the creditor, the proceedings may be suspended by the judges,
subject to their being resumed if there occurs some attachment or
obstacle to the payment.
Art. 2213
A forced sale of immovables may be
enforced only under a judgment or an authentic instrument, for a
certain and liquid debt. Where the debt is for a ready money, not
liquidated, the proceedings are valid; but the auction may be held
only after the liquidation.
Art. 2214
The assignee of a judgment or of an
authentic instrument may sue for a forced sale only after notice
of the assignment has been served on the debtor.
Art. 2215
The proceedings may take place under a
provisional or final judgment, provisorily enforceable,
notwithstanding an appeal; but an auction may be made only after a
final judgment, without possibility of appeal, or become res
judicata.
The proceedings may
not be instituted under default judgments during the period for
application to set the judgment aside.
Art. 2216
Proceedings may not be annulled on the
pretext that the creditor has instituted them for a larger sum
than what is owed to him.
Art. 2217
Any proceedings for forced sale must
be preceded by an order to pay served, at the suit and request of
the creditor, on the person of the debtor or at his domicile,
through a bailiff.
“For purpose of
their being recorded, the orders to pay bearing on shares
depending on an immovable subject to the status of co-ownership
shall be deemed not to bear on the portion of common parts which
is included in those shares.
“Nevertheless, the
seizing creditors shall enforce their rights on the said portion,
taken in its consistence at the time of the transfer whose
proceeds are the subject matter of the division” (Act n° 79-2
of 2 Jan. 1979).
The forms of the
order to pay and those of the proceedings for a forced sale
are regulated by the laws relating to
procedure.
CHAPTER II - OF
THE RANKING OF CREDITORS AND THE DIVISION OF THE
PROCEEDS BETWEEN THEM
Art. 2218
The ranking of the creditors and the
division of the proceeds of the immovables and the manner of
proceeding thereto are regulated by the laws on procedure.
TITLE XX
OF PRESCRIPTION AND OF POSSESSION
CHAPTER I - GENERAL PROVISIONS
Art. 2219
Prescription is a manner of acquiring
or of discharging oneself at the end of a certain time and subject
to the conditions determined by law.
Art. 2220
Prescription may not be renounced
beforehand: a prescription which has accrued may be renounced.
Art. 2221
A renunciation of prescription is
express or implied: implied renunciation results from an act which
implies waiver of the right acquired.
Art. 2222
A person who has not the power of
alienation does not have the power of renunciation of a
prescription which has accrued. .
Art. 2223
Judges may not supply of their own
motion a plea of prescription.
Art. 2224
Prescription may be set up at all
stages of a case, even before a court of appeal, unless the party
who had not set up the plea of prescription should be presumed, by
reason of the circumstances, to have renounced it.
Art. 2225
Creditors, or any other person having
an interest in the prescription's being accrued, may set it up,
although the debtor or owner renounces it.
Art. 2226
One may not prescribe the ownership of
things which may not be the subject matter of legal transactions
between private individuals.
Art. 2227
The State, public institutions and
communes are subject to the same prescriptions as private
individuals, and may likewise set them up.
CHAPTER II - OF
POSSESSION
Art. 2228
Possession is the detention or
enjoyment of a thing or of a right which we hold or exercise by
ourselves, or by another who holds and exercises it in our name.
Art. 2229
In order to be allowed to prescribe,
one must have a continuous and uninterrupted, peaceful, public and
unequivocal possession, and in the capacity of an owner.
Art. 2230
One is always presumed to possess for
oneself, and in the capacity of an owner, where it is not proved
that one has begun by possessing for another.
Art. 2231
Where one has begun by possessing for
another, one is always presumed to possess in the same capacity,
unless there is proof to the contrary.
Art. 2232
Acts which are merely allowed or
simply tolerated may not give rise to possession or prescription.
Art. 2233
Acts of duress may not give rise to a
possession capable of bringing about prescription
either.
Possession begins to produce effects only from the time the duress
has ceased.
Art. 2234
A present possessor who proves that he
has formerly possessed, is presumed to have possessed during the
intervening time, unless there is proof to the contrary.
Art. 2235
To complete a prescription, one may
join to one's possession that of one's predecessor, in whatever
manner one may have succeeded to him, whether by virtue of a
universal or specific title, or for value or gratuitously.
CHAPTER III
- OF THE CAUSES WHICH PREVENT PRESCRIPTION
Art. 2236
Those who possess for another never
acquire ownership by prescription, whatever the time elapsed may
be.
Thus a farm tenant, a depositary, a usufructuary, and all those
who precariously hold the thing of an owner, may not prescribe it.
Art. 2237
The heirs of those who held the thing
on any of the bases designated in the preceding Article, may not
prescribe either.
Art. 2238
.-Nevertheless, the persons mentioned in
Articles 2236 and 2237 may prescribe where the basis of their
possession is reversed, either owing to a cause arising from a
third party, or by an adverse claim they have raised against the
right of the owner.
Art. 2239
Those to whom farm tenants,
depositaries or usufructuaries and other persons who hold
precariously have transmitted the thing by a conveyance, may
prescribe it.
Art. 2240
One may not prescribe against one's
own title, in the sense that one may not modify as to himself the
cause and principle of his possession.
Art. 2241
One may prescribe against one's title,
in the sense that one prescribes the discharge of an obligation
which one has contracted.
CHAPTER IV - OF THE CAUSES WHICH INTERRUPT OR SUSPEND
THE RUNNING OF PRESCRIPTION
Section I - Of
the Causes which Interrupt Prescription
Art. 2242
Prescription may be interrupted either
naturally or according to law.
Art. 2243
Natural interruption takes place where
a possessor is deprived of the enjoyment of the thing, for more
than one year, either by the previous owner, or even by a third
person.
Art. 2244
(Act n° 85-677 of 5 July 1985)
A service of process, even for interim
relief, an order to pay or a seizure, on the person whom one
wishes to prevent from prescribing, interrupt prescription, as
well as the periods within which an action must be brought.
Art. 2245
An application for conciliation
before the [tribunal d'instance] interrupts prescription
from the day of its date, where it is followed by a service of
process in due time.
Art. 2246
A service of process, even before a
judge without jurisdiction, interrupts prescription.
Art. 2247
Where a summons is void by
infringement of a procedural requirement,
Where the plaintiff discontinues his action,
Where he leaves the suit to lapse,
Or where he is defeated in his claim,
Interruption shall be deemed never to have occurred.
Art. 2248
Prescription is interrupted where the
debtor or possessor acknowledges the right of the person against
whom he was prescribing.
Art. 2249
A service of process made in
accordance with the above Articles upon one of the joint and
several debtors, or his acknowledgement, interrupts prescription
against all the others, and even against their heirs.
A service of process made upon one of the heirs of a joint and
several debtor or an acknowledgement by that heir does not
interrupt prescription against the other coheirs, even if the
claim is secured by a mortgage, where it is not indivisible.
That service of process or that acknowledgement interrupts
prescription, with regard to the other co-debtors, only for the
share for which that heir is liable.
In order to interrupt prescription for the whole, with regard to
the other co-debtors, it is necessary to have a service made on
all the heirs of the deceased debtor, or an acknowledgement of all
the heirs.
Art. 2250
A service made upon a principal
debtor, or his acknowledgement, interrupts prescription against
the surety.
Section
II – Of the Causes which Suspend the Running of
Prescription
Art. 2251
Prescription runs against all persons,
unless they come within some exception established by law.
Art. 2252
(Act n° 64-1230 of 14 Dec.
1964)
Prescription does not run against
non-emancipated minors and adults in guardianship, except for what
is stated in Article 2278 and with the exception of the other
cases determined by law.
Art. 2253
It does not run between
spouses.
Art. 2254
Although there is no separation
resulting from an ante-nuptial agreement or a judgment,
prescription runs against a married woman, with regard to the
property of which the husband has the administration, subject to
her remedy against the husband.
Art. 2255 and 2256
[repealed]
Art. 2257
The statute of limitations does not
run :
With regard to a claim which depends upon a condition, until that
condition occurs;
With regard to an action on a warranty, until dispossession has
taken place;
With regard to a claim on a fixed day, until that day has
occurred.
Art. 2258
The statute of limitations does not
run against a heir under benefit of inventory, with regard to
claims which he has against the succession.
It runs against a succession which is vacant, although not
provided with a curator.
Art. 2259
It still runs during the three months
allowed for making an inventory and the forty days for
deliberating.
CHAPTER V -
OF THE TIME REQUIRED TO PRESCRIBE
Section I - General Provisions
Art. 2260
Prescription is counted by days and
not by hours.
Art. 2261
It accrues when the last day of the
period is over.
Section II - Of
Thirty-Year Prescription
Art. 2262
All actions, in rem as well as
in personam, are prescribed by thirty years, without the
person who alleges that prescription being obliged to adduce a
title, or a plea resulting from bad faith being allowed to be set
up against him.
Art. 2263
After twenty-eight years from the date
of the last instrument of title, the debtor of an annuity may be
compelled to furnish at his expense a new instrument to his
creditor or to his assigns.
Art. 2264
The rules of prescription on matters
other than those mentioned in this Title are explained in the
Titles which relate to them.
Section III
- Of Ten- and Twenty-Year Prescription
Art. 2265
A person who acquires an immovable in
good faith and under a just title prescribes ownership of it by
ten years, where the true owner lives on the territory of the
court of appeal within whose limits the immovable is situated; and
by twenty years, where he is domiciled outside of the said
territory.
Art. 2266
Where the true owner has had his
domicile at different times, within and outside the territory, one
must, in order to complete the prescription, add to what is
lacking to make up ten years of presence, a number of years of
absence twice what is lacking to complete the ten years of
presence.
Art. 2267
An instrument which is void for a
defect as to its form may not serve as the basis for a
prescription by ten and twenty years.
Art. 2268
Good faith is always presumed, and it
is on the person who alleges bad faith to prove it.
Art. 2269
It is sufficient that good faith has
existed at the time of the acquisition.
Art. 2270
(Act n° 78-12 of 4 Jan. 1978)
Any natural or juridical person who
may be liable under Articles 1792 to 1792-4 of this Code is
discharged from the liabilities and warranties by which they are
weighed down in application of Articles 1792 to 1792-2, after ten
years from the approval of the works or, in application of Article
1792-3, on the expiry of the period referred to in this Article.
Art. 2270-1
(Act n° 85-677 of 5 July 1985)
Actions for tort liability are barred
after ten years from the manifestation of the injury or of its
aggravation.
(Act n° 98-468 of 17 June 1998) Where the injury is caused
by torture and acts of cruelty, assault or sexual aggressions
committed against a minor, the action in tort liability is barred
after twenty years.
Section IV -
Of Some Particular Prescriptions
Art. 2271
(Act n° 71-586 of 16 July
1971)
The action of teachers and
schoolmasters of sciences and arts for the lessons which they give
by the month;
That of innkeepers and caterers for reason of board and lodging
which they furnish, are barred after six months.
Art. 2272
(Act n° 71-586 of 16 July
1971)
The action of bailiffs, for the fees of the instruments they serve
and the commissions which they perform;
That of the masters of boarding schools, for the boarding fees of
their pupils, and of the other masters for the price of the
apprenticeship, are barred after one year.
The action of physicians, surgeons, dental surgeons, midwives and
pharmacists, for their visits, operations, and medicines, is
barred after two years.
The action of merchants, for the goods which they sell to private
individuals who are not merchants, is barred after two
years.
Art. 2273
The action of counsels for the payment
of theirs costs and fees, is barred after two years, from the
judgment in the proceedings or from the conciliation of the
parties, or since the revocation of the said counsels. As to cases
not closed, they may not institute judicial proceedings for their
costs and fees which date back more than five
years.
Art. 2274
In the above cases, limitation takes
place although the supplies, deliveries, services and works have
been continued.
The statute of limitation ceases to run where there was an
account stated, acknowledgment in writing or a summons which has
not lapsed.
Art. 2275
Nevertheless, the persons against whom
those limitations are raised may tender the oath to those who
raise them, on the question of knowing whether the thing has
really been paid.
The oath may be tendered to widows and heirs, or to the guardians
or the latter, where they are minors, in order to have them
declare that they were not aware of the thing being owed.
Art. 2276
(Act n° 71-586 of 16 July
1971)
Judges as well as the persons who have
represented or assisted the parties are no longer chargeable for
the papers and documents five years after the judgment or the end
of their duties.
Bailiffs are also no longer chargeable after two years since the
performance of the commission or the service of instruments of
which they had the responsibility.
Art. 2277
(Act n° 71-538 of 7 July 1971)
The actions for
payment:
Of salaries;
Of arrears of
perpetual and life annuities and those of periodical
payments;
Of rents and farm
rents;
Of interest of sums
loaned,
and generally of
everything which is payable annually or at shorter periodical
times, are barred after five tears
Art. 2277-1
(Act n° 89-906 of 19 Dec.
1989)
An action directed against persons
statutorily empowered to represent or assist parties in court by
reason of the liability which they thus incur is barred
after ten year from the end of their duties.
Art. 2278
The limitations in question in the
Articles of this Section, run against minors and adults in
guardianship; subject to their remedy against their guardian.
Art. 2279
In matters of movables, possession is
equivalent to a title.
Nevertheless, the person who has lost or from whom a thing has
been stolen, may claim it during three years, from the day of the
loss or of the theft, against the one in whose hands he finds it,
subject to the remedy of the latter against the one from whom he
holds it.
Art. 2280
Where the present possessor of a thing
lost or stolen has bought it at a fair or market, or at a public
sale, or from a merchant selling similar things, the original
owner may have it returned to him only by reimbursing the
possessor for the price which it has cost him.
(Act of 11 July 1892) A lessor who claims, under Article
2102, the movables displaced without his consent and which have
been bought in the same conditions, must likewise reimburse the
buyer for the price which they have cost him.
Art. 2281
Prescriptions commenced at the time of
the publication of this Title shall be regulated in accordance
with former laws.
Nevertheless, prescriptions then commenced and for which, under
the former laws, would still be necessary more than thirty year
from the same time, shall become complete by that period of thirty
years.
CHAPTER
VI- OF THE MODE OF PROTECTING POSSESSION
(Act n° 75-596 of 9 July 1975)
Art. 2282
Possession is protected, regardless of
the substance of the right, against disturbance which affects or
threatens it.
Protection of possession is also granted to a person who holds a
thing against all other than the one from whom he holds his
rights.
Art. 2283
Actions for
the protection of possession may be brought by those who possess
or hold peacefully in the way provided for by the Code of Civil
Procedure.