The Act of July 13, 1979, integrated into the Consumer Code (Book III, Chapter 2) is public.
Its purpose:
- improve the information of the borrower (10-day window, 11 in fact, dies a quo was not considered);
- bind the purchase property to obtain the loan (condition subsequent that the act be concluded within 4 months);
- limiting the penalties for early repayment, as for the buyers defaulted, 3%;
Its scope:
- buildings for residential use or mixed use residential and professional.
People involved:
- individuals or legal entities acting outside the framework of a professional activity;
Advertising: if it contains an encrypted (eg become a homeowner for x EUR months), it must specify the duration, total cost and the TEG.
Loan Offer: it a detailed schedule with the addition of the TEG, guarantees, insurance, possibly indexing ...
Offer Period: 30 days minimum, the borrower can not accept that 10 days after receiving The contract is formed upon acceptance of the offer.
The offer is accepted under the condition subsequent of the non-conclusion of the main contract in four months.
If several loans are required, each is made subject to the condition precedent of obtaining other. If the purchaser
buy without said loan, he should write a handwritten note. No mention is required for the representative share of the personal contribution, if the customer requests a loan.
Obligations of the acquirer to diligently to get her ready on time and under the terms of the contract. Otherwise, the condition precedent could be considered as achieved, in accordance with section 1178 of the Civil Code: "The condition is considered to be fulfilled where the debtor obligated under this condition, which prevented the completion."
This includes:
- perform the procedures for submitting application in time
Cass, ch. Civ. 1, 19 June 1990, No. 88-16196, "it is still necessary that the beneficiary has taken steps to obtain loans in a timely manner";
The clause requiring the buyer to file the application within a certain time is valuable, but must respect the legal protection of the buyer-borrower: it can not be less than one month (Court of Appeal, Civil Division 3, 2005-07-06, 04-13381, published in the newsletter) "The provisions of Article L. 312-16 of the Code of consumption is of public order, the appellate court stated it properly could be imposed on the purchaser to file a credit report within fifteen days of signing the promise of sale, this contractual obligation is likely to increase demands of the text. "
The borrower must provide proof of his efforts (Court of Appeal, Civil Division 1, 1999-02-09, 97-10195, published in the newsletter):" It is for the borrower to demonstrate that he solllicité a loan to meet the requirements defined in the agreement of sale. Otherwise, the condition precedent shall be deemed accomplished by application of section 1178 of the Civil Code.
See also: Court of Appeal Civil Division 3
Public Hearing Wednesday, January 30, 2008
No appeal: 06-21117
Moreover, if the customer exceeds this limit application but still get the loan or the refusal in the agreed timeframe, no fault will be charged against him.
- respect the characteristics of the loan application
Cass. Ch Civ. 3, January 11, 2005, No. 03-17898: The credit claimed was in excess to that provided in the undertaking;
- in case of refusal, to prove the characteristics of the loan application
Cass. Civ. 3, May 24, 2005, No. 04-12967;
- file a loan application to all banking institutions under the contract: TGI
Grenoble, 4th Civil Chamber, March 26, 2007, No. 04 / 01976 (CIMM IMMOBILIER / R): "Diego R had an obligation to seek funding from any agency but starting with the three specified in the contract;
careful if no body has mentioned, only one loan refusal of any which agency will suffice to play the condition precedent (the Court of Appeal, Civil Division 3, 2005-04-13, 03-21100, unpublished): "In the absence of contractual provisions to the contrary, the beneficiary of a promise of sale under condition precedent of obtaining a loan performs the necessary due diligence and not impede the fulfillment of the condition when it is within the agreed period at least one loan application meets the specifications set forth in the promise and was unsuccessful " . The result is the same with a vague clause like "all banking institutions."
Condition precedent of obtaining:
- an agreement in principle is not sufficient (Court of Appeal, Civil Division 3, 2007-11-07, 06-17413, published in the newsletter): "the condition precedent of obtaining a loan is deemed completed upon issuance of a firm offer and unreserved characterizing a loan according to the contract, having held that the certificate issued, no date other than April 30, 2002, mentioned on the fax, the header of the Farm Credit Agency of Carcassonne, by Mrs. B. .., assistant, certified to agree in principle with Mr. and Mrs. Z. .. for a loan of 396,000 euros, the appellate court has accurately concluded that this certificate does not constitute an offer to loan "
- can impose more stringent than those provided by law, but their Non-compliance can result in the lapse of the sale (Court of Appeal, Civil Division 3, 2007-11-07, 06-17867, published in the newsletter):
"But having waited, and adopted by its own reasons, found distorted, that the sale was subject to the condition precedent of obtaining the loan or loans that are requested by the buyer under the conditions stipulated in the contract, this binding itself to justify the seller and the editor of the promise of receiving any loan offer within 48 business hours after receipt of the offer, the Court of Appeal, which has rightly held that the failure This disclosure requirement could have the effect of causing the lapse of the sale while the character of public policy in Article L. 312-16 of the Consumer Code prohibits the provision of contractual obligations imposed on the acquirer likely to increase demands of the text and that, under this text, the promise of 26 April 2005 provided that the sale would be considered null and Avenue as a result of the failure to obtain a loan offer within five weeks after signing the pledge, which stated that an agreement for a loan at a zero rate amount of 16,125 euros and a loan in the amount of evolutionary 167,875 euros had been notified to the purchasers by a certificate of Societe Generale, dated May 12, 2005 and that tenders had been issued loan May 25, 2005 , was able to deduce that the condition was made and the sale was complete, "
- the bank can not lend in any conditions (Court of Appeal, Civil Division 1, 2005-07-12, 03-10921, published in the bulletin): "fails in its duty to warn the bank that did not audit the financial capacity of borrowers profane, grants to them a loan excessive in relation to their ability to pay. "
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