The fulfilment or failure of a condition precedent (CP) must be assessed on the date of termination of the contract, and any fulfilment of the CP after this date is irrelevant.
In the present case, an architect agreement, which failed to comply with the provisions of the Consumer Code protecting real property investors, must be deemed subject to a condition precedent relating to the granting of a loan.
In these circumstances, the Cour de cassation ruled that: “The rule whereby a commitment subject to a condition precedent without any fixed term subsists as long as the condition has not failed and cannot be terminated by the unilateral will of one of the parties does not deprive the parties of the benefit of the provisions of the contract granting an option for unilateral termination. In this case, the fate of the condition is determined at the date of termination“.
The French Supreme Court held that because of the failure of the CP at the time of termination of the agreement, the architect fees must be refunded in accordance with Article 1304-6 of the Civil Code, which states that “when the condition precedent has failed, the obligation is deemed never to have existed“.
Civ. 3e , 14 September 2023, no. 22-18.642
