The purchaser of real estate who obtains a credit lower than the “maximum amount” provided for by the condition precedent of the promise to sell is no longer required to buy.
The indication of a maximum amount of the loan in the promise does not make it possible to force the purchaser to accept an offer of a lower amount, has just judged the Court of Cassation.
In such cases, when the banker offers an amount lower than that which the purchaser considered necessary and which had been mentioned in the preliminary sales contract, the condition precedent is not fulfilled, according to the judges.
While the condition precedent required a buyer to find a loan for a maximum amount of 414,000 euros repayable in 25 years at 2%, the bank had only offered 407,000 euros under these conditions. The condition could not be fulfilled, concluded the purchaser to abandon the operation and request the return of the sums deposited.
On the contrary, the condition is fulfilled, pleaded the seller to keep the sums. Since the 414,000 euros was a maximum, the offer of 407,000 euros complies with the condition precedent, he concluded.
The Court of Cassation ruled in favor of the buyer. He is not bound to accept this offer and, consequently, the condition precedent is not fulfilled. From then on, he is no longer required to sign the notarial deed, the immobilization indemnity cannot be retained by the seller and the sales commission cannot be claimed by the intermediary agency.
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By ruling in this way, the Court of Cassation is modifying its case law since in January 2021, it had deemed the promise to be in conformity with a loan granted for an amount less than the maximum amount provided.
(Cass. Civ 3, 14.12.2022, H 21-24.539).
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