Three months late for the delivery of a new building, This is nothing rare. More than six months, it starts to do a lot … This is what Mr. and Mrs. G., buyers of an apartment on sale in the future state of completion (VEFA) are said in a building which was to be delivered on March 30, 2019. But delivery only occurred on October 7, 2019.
At the origin of this delay: bad weather, justifies the promoter. And the latter to remind them that the reservation contract of the apartment contains a clause according to which the delivery time of March 30, 2019 “Was agreed subject to the occurrence of a case of force majeure or a legitimate cause of suspension of delay, such as the bad weather, and that, for the appreciation of these events, the parties declare relating to a certificate established by the architect with the management of the works”.
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An abusive clause?
Already very annoyed by the delay in delivery, Mr. and Mrs. G. wonder about the Partiality of the promoter’s architect. To the point of assigning the latter to court in order to obtain compensation for damages resulting from the delay in delivery of the building. Not easy, in fact, to have to find a new rental pending delivery of the apartment, since the keys to the previous one had to be rendered for March 30 …
Mr. and Mrs. G. invoke the abusive character of the clause relating to the delay in delivery. “In consumer law, an abusive clause is a provision that creates a significant imbalance between the rights and obligations of the professional and those of the consumer. This clause can be declared zero if it excessively disadvates the buyer ”explains the law firm Adonis.
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The architect, neither judge nor party
But the judges prove wrong to the couple, who appeal, in vain. Although paid by the promoter, the architect in charge of the site is nonetheless “A qualified professional, who produced certificates based on public meteorological data, verifiable and questionable by Mr. and Mrs. G.”retorts the Cayenne Court of Appeal. Not discouraged, the G. are forced in cassation. Without more success: in a decision rendered on April 30, the Court of Cassation proves them wrong, considering, as the Court of Appeal, that the architect in charge of the construction program is a qualified professional.
For the Court, the late delivery clause, “Who has neither as an object nor effect, to create a significant imbalance between the rights and obligations of the parties to the contract, is (therefore) not abusive”. “The architect is not judge and party, but a technician which provides evidence. And, as long as the delay justifications are based on objective elements and the buyer can challenge them, the clause is legal ”decrypts Adonis. Adding that if the couple G. persists in judging the delay in delivery unjustified, he can still “Ask for the communication of certificates produced by the architect, check the weather data used and request counter-expertise”.
