Source: Supreme Court, 3rd Civil Chamber, May 6th 2015, n° 13-24.947: JurisData n° 2015-010267
A contract of construction of an individual house with provision of work plans was concluded between spouses and a society.
The specific conditions of this contract provided a clause written as follows: «any occupancy or moving in before the redaction of the minutes of reception, signed by both the contractor and the project manager, has the direct consequence of the unreservedly reception of the house and therefore the full outstanding amount is due, with no possible objection».
After expertise, the spouses summoned the society to get the refund of the sums paid, in respect of the demolition and reconstruction fees as well as the penalties for construction delays, and on a subsidiary basis, to have the exercise of their withdrawal right established, based on the provisions of the article L. 271-1 of the Construction and Housing Code, and the payment of the sums.
For the Court of Appeal, this clause must be deemed to be unwritten and therefore it dismissed the society's request to get the tacit reception of the house by the spouses established.
In support of its appeal to the Supreme Court, the society raised that:
- is valid and licit the clause of a contract of construction of an individual house, in which the parties have agreed that any occupancy or moving in before the contradictory redaction of the minutes of reception is understood as a tacit and unreservedly reception of the house; that by judging the contrary, after having accepted the possibility of a tacit reception, the Court of Appeal has violated the articles 1134 and 1792-6 of the Civil Code;
- the judge cannot misrepresent the clear and precise terms of the clause. The society considers that the contested clause does not impose an extensive definition of the reception, having as an effect to deprive the contractor of the benefice of the eight-day time limit to report the apparent disorders that were not mentioned on the day of the reception.
- even in the case of a tacit reception, the contractor can, by registered letter, within eight days following the reception, denounce the apparent disorders that were not mentioned at the time, in order to get them fixed in respect of the execution of the contract.
The Supreme Court considered, like the Court of Appeal, that «the contested clause considered the occupancy as an «effective» and «unreservedly» reception, though the reception involves the unequivocally willingness of the contractor to receive the house that the only occupancy is not enough to establish».
In these conditions, the Court of Appeal has rightly accepted, that this clause, which, «inserted in a contract concluded between a professional and a non-professional, creates, at the expense of the latter, a significant imbalance between the rights and obligations of the parties, because it imposes to the contractor an extensive definition of the reception, which is against the law, and has the effect of immediately making the outstanding sums due. »
The said clause is therefore deemed to be unwritten.