The notary shall draw the attention of the parties on the disproportion between the amount of the mortgage and the value of the encumbered property
By a decree of May 28, 2009, the First Civil Chamber of the Court of Cassation stated that the notary must draw the attention of the parties The disproportion between the mortgage amount and value of the building grevé.À after a complex transfer operation of the business, taking the form of a management lease and a loan secured by Mortgage Bonds crossed the transferee company and its associates were expelled from local and put into liquidation. The parties then sought the particular responsibility of the notary for breach of its obligation to conseil.La Court of Appeals (CA Aix-en-Provence, Feb. 1. 2007) accepted the responsibility of the notary drawing noting in particular that the clear indication of the value of the mortgaged property does not relieve the notary to draw attention to its disproportionate to the amount of the guaranteed loan that added risk of the overall operation, and had therefore breached its duty to provide advice and implementation garde.La Court Cassation rejected an appeal by the lawyer against this decision, and states that if it is not required to give legal advice and warning about the economic desirability of an operation in the absence of elements of assessment that will not look, it is, however, view such an obligation to ensure that rights and obligations legally incurred by the parties meet the objectives proved their commitment, are responsive to their respective faculties and capacities or are accompanied by provisions to give them their own effectiveness, even though their commitment is an agreement earlier if at the time of authentication that agreement did not produce any effect or not is not immutable.
This decision by the Court of Cassation, which implicitly confirms the analysis made by the Court of Appeal of Aix en Provence to the obligations of notaries as regards the duties of the board, just add a field already rich in decisions an additional element: it is now claimed that the lawyer in charge of receiving the form in an authentic act of mortgage lending Trust must ensure the internal structure of the transaction, even if it has already been concluded by a preliminary contract private agreement or separate agreements, such as the availability of credit.
In this regard, notaries will not fail to note that their task now is likely to be highly dangerous and likely to generate conflicts of liability, where one might expect, this is no longer possible to our days, the role of a notary is that confer genuine force to contracts whose terms are defined and the economy and concluded between the contracting parties themselves prior to his intervention.
However, the duty of the board of a notary must be understood today as an obligation imposed upon it to examine not only the shape but also the substance of the agreements it authenticates to highlight the need is so financial imbalances or the risk to one or other of the parties it is the common agent.
So just like a divorce agreement which would simply found by declaration before a mayor - fortunately reform proposal rejected - the contract, when is the authentic form, assumes that apparent its editor, the undersigned, as all the possible consequences of a particular provision relating to the heritage status of the parties and especially that which is most prone to risk.
It will also apply in respect of private deeds executed before a lawyer, who does not have the power to authenticate but nevertheless is subject to a duty to advise permettrela likely to implement a search responsibility in case of apparent risk of certain provisions of the act for one or UATRE co-contractors.
This decision of the Supreme Court has thus reinforce a principle which, increasingly, will be present to the minds of professionals who provide services to non-legal professionals who rely on their skills or the opportunity to check, but at least the balance of contracts .
Lawyers, which should soon be granted the right (and therefore the duties relating thereto) to give the acts they are probative specific, separate from the deed, but far superior to the private deed traditional, should be particularly vigilant when, inter alia, they établisent agreements or commitments that could manage obligations to devote part impractical or subject to imbalance.
The autonomy of the will, the consensual, the Contart by law between the parties, all these old concepts of our Civil Code are dead now, since it involves a professional, and that's good thing, because even in law, the law of the jungle still exists.
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