Le Droit et Vous

The cooling-off period in the sale mandate

Real Estate Law
Source: Supreme Court, 1st Civil Ch., July 1st 2015, n° 14-15.753

In accordance with the article L.121-26 of the Consumer Code, as valid before the entry into force of the Law n°2014-344 of March 17th 2014, the first chamber of the Supreme Court criticized the judgement rendered by the Court of Appeal.

As a reminder, this text indicated that before the expiry date of the seven-day cooling-off period provided in the article L.121-25, no one can demand or obtain from the client, directly or indirectly, under any circumstance or in any manner, neither a counterbalance nor a commitment, nor provide a service of any nature; that the lack of knowledge of those public order provisions results from the nullity of the mandate.

In the present case, a SCI (Société Civile Immobilière) gave a mandate to a company having to do with real estate transactions, which, by contract, is subject to the provisions of the Consumer Code related to doorstep selling, for the purpose of the sale of an apartment for the price of €2,350,000.00, including a remuneration of €80,000.00, and a penal clause, in the hypothesis where the principal would refuse to sign the sale agreement at the price agreed with any buyer introduced by the agent.

However, the society in question received an offer to purchase from a couple, at the expected price, before the end of the delay of the cooling-off period, and the SCI decided to withdraw the property from the sale, because of the amount of the appreciation tax, which it would have had to pay. The real estate transactions society notified it a writ for the payment of the penal clause.

The Court of Appeal granted the society's request and condemned the SCI to pay it the sum of €80,000.00 under the penal clause. For the Court of Appeal, by receiving the offer of purchase from the couple, within the cooling-off period, the real estate agent did not breach to the provisions of the article L.121-26 of the Consumer Code, which only forbids for the agent to obtain from his client a counterbalance or a commitment or to provide a service of any nature.

The Supreme Court criticized the judgment, indicating that it resulted, from the statements of the Court of Appeal that the society had started to complete the mandate before the expiry date of the legal delay of cooling-off, by searching buyers.

Employment contract and applicable law

Source: Supreme Court, Social Ch., 9th July 2015, n° 14-13.497
Labour Law / International Law

An employee had been hired for a part-time work, as a program director, by a Spanish foundation; she signed another employment contract with another employer in order to obtain the status of private secretary in charge of the expositions. Both contracts mentioned that they were under, for the first one, the Spanish Law, and for the second one, the Belgian Law.

The employee was afterwards dismissed by the foundation resulting from the impossibility to maintain her work position in Paris, as well as by the other employer.

She seized the Labour Court in order to obtain the payment of various sums under the breach of both employment contracts, under the extra hours, under the compensation for undeclared work and compensation for her pension loss, in accordance with the provisions of French Law;

The Court of Appeal has not granted her request and has dismissed the application of French Law.

The Supreme Court, in accordance with the articles 3 and 6 of the Rome Convention dated June 19th 1980 concerning the applicable law to the contractual obligations, disagrees with the analysis of the Court of Appeal and decides that:

The article 3 of the Convention states that "the contract is governed by the law chosen by the parties, that they can designate the applicable law to the whole or only part of their contract" and the article 6 adds that "the choice of the applicable law by the parties to an employment contract cannot have the incidence to deprive the employee of the protection insured by the imperative provisions of the law, which would be applicable to him, and failing a choice, in accordance with the provisions of the second paragraph of this said text; that according to this paragraph, the contract is governed, failing a choice by the parties: a) by the law of the country where the employee usually works, or b) if the employee does not usually work in the same country, by the law of the country where is established the company that hired the employee, unless it results from all the circumstances, that the employment contract is more related to another country, in which case the law of this other country is applicable."

The Court of Appeal, in order to dismiss the application of the French Law to the requests submitted by the employee against two of her employers, held that the contract, written in Spanish, concluded with the Foundation, states that will be applied to this contract the status of Spanish workers and the Spanish collective convention of the office workers and that the contract signed with the other employer provides that it will end in the form provided by the Belgian Law.

It adds that "The employee, who claims a fraud from her employers and the exercise of a constraint resulting from her pregnancy state and her economic dependence at the time of the signature of the contracts, does not produce any element supporting her arguments, only based on the chronology of the signatures of the litigious contracts; that perfectly mastering the Spanish language, she could not mistake about the incidence of the contract signed on December 12th 2002; that regarding the delay to appeal against the dismissal, provided by the Spanish Law, she does not prove in what its brevity would deprive her from the access to a judge in order to justify the application of the public order rules of the French Law; that the fact that she is domiciled and works most of the time in France, is not sufficient to establish the fraud claimed, being said that her functions necessarily made her travel abroad."

The Supreme Court criticized the judgement, saying that the Court of Appeal, which noted that the place where the employee usually worked was in France, and did not research, as she was asked, whether the provisions of the Belgian and Spanish Laws, chosen by the parties and related to the different requests of the employee, protected her more than the imperative provisions of the French Law, which would have had to be applied, if no such choices were made.

PASSIVE SMOKING IN COMPANIES: The employer is responsible

Labour Law

Source: Supreme Court. Social Ch. 3rd June 2015, n°14-11324

In this case, an employee, hired as a designer by a society, was on sick leave. Following the notice of inability to work without any second visit, with immediate danger noted by the occupational doctor and given the impossibility to reclassify her, she was subject to a dismissal procedure for inability to work. However, the employee seized the Labour Court for various requests related to the execution and the breach of the employment contract.

She particularly requested a specific compensation, resulting from the passive smoking, which she was a victim of.

In order to dismiss the employee from her requests, the Court of Appeal had noted that in the hand-written document particularly detailed and spontaneous, made for an assessment interview in March 2010, the employee was really satisfied of her work conditions, which she described as a great team atmosphere et good relations with the employer, and did not complain in any case of passive smoking or about the cold, though she had few comments about the noise.

The court had taken the employer's argument into consideration, adding that the employee accompanied her colleagues when going for a cigarette in the garage, although she was not forced to do so, and that her presence in the office was extremely low, being counted in days from October 2010, and from the medical certificate produced, the reason for her sick leaves was a calcifying tendinitis, disease which is not related at all to passive smoking.

The Supreme Court disagrees with the analysis adopted by the Court of Appeal as according to the article L.4121-1 of the Labour Code, the Supreme Court reminds the obligation of safety that remains to the employer.

The Supreme Court added that the motives pleaded by the employer were not sufficient to exonerate his responsibility on the subject of exposition to passive smoking.

One more time, this decision shows the serious obligation from the employer in the matter of hygiene and safety within his company.