( les clauses suspensives)
suspensive clauses, in a preliminary contract, cause to
suspend the sale with the realization of a future and
dubious event. Thus, if the event is carried out, the
sale could be done; if it is not carried out, the promise
or the compromise of sale will be cancelled - and its
recipient will recover the sums which it paid.
rule concerning these conditions is contractual freedom,
knowing that most current, in particular because it is
obligatory, is the condition relating to obtaining a credit.
Under the terms of this principle of contractual freedom,
since the salesman and the purchaser agree, a great diversity
of condition precedents can appear in the preliminary
contract (for example, preliminary resale by the recipient
of a promise of its preceding housing).
condition precedent relating to obtaining a credit
concerns the purchaser wanting to finance, by means of
one or more loans, the purchase of a residential building
or mixed use (professional and of dwelling). It will be
said whereas the promise or the compromise of sale is
concluded under the condition precedent from obtaining
from one or more loans.
condition precedent is obligatory. It applies since
the purchaser resorts to a loan , except if this one
expressly indicates in the preliminary contract that
he gives up for the benefit of this clause (in this
case, the preliminary contract will have to specify
that the price will be paid without the assistance
of one or more loans, or will have to comprise the
handwritten mention of the hand of the purchaser indicating
that he gives up for the benefit of the law even if,
ultimately, it resorts to a loan).
The condition precedent of obtaining a loan must have
one period of one month validity minimum as from the
signature of the promise or the compromise of sale
or, if it is about an informal agreement subjected
to the formality of recording as from the date of
taking into account the time of instruction by the organizations
of credit, it is envisaged one period of validity of the
condition from 2 to 3 months in the majorities of the
cases. If the purchaser does not manage to obtain a financing
within the time envisaged, it will not be engaged by the
act which it signed (and will be able consequently to
recover the sums that it poured).
litigations can occur as for the interpretation of the
concept of "obtaining the loan".
Here the various cases of figure which could be considered
by the courts:
the purchaser could not obtain the financing sought
for reasons independent of his will: the condition precedent
plays. It is however desirable that the purchaser can
justify that it made his possible to obtain the financing
within the time envisaged.
the purchaser does not want financing proposed: if the
financing does not correspond to its financial capacities,
it has the right to refuse the proposals of the organizations
of credit. On the other hand, the refusal of offers
of credit in connection with the resources of the borrower
cannot be opposed to the realization of the condition
the purchaser indicated in the promise or the compromise
of sale the conditions of debt which it wishes to respect
(that can relate to for example the interest rate or
a maximum monthly payment): the condition precedent
will be able to play if the offers of credit do not
correspond to its requirements.