Application of the new law to unilateral promises made before the reform of February 16, 2016

Cass, Com, March 15, 2023, n°21-20.399

In its decision of March 15, 2023, the Court of Cassation applies to a unilateral promise of sale contracted before 2016 the law resulting from the entry into force of the reform of February 10, 2016, affirming then that the revocation of the promise before the expiry of the time left to the beneficiary to opt does not prevent the formation of the promised contract.

1. The legal framework

The reform of February 10, 2016, which came into force on October 1^st, 2016, modifies the penalty for withdrawing the unilateral promise during the time allotted to the beneficiary to exercise the option.

Before the reform, the withdrawal of the promisor during this period was presumed to have prevented any meeting of the minds, so that the beneficiary could not seek the forced completion of the sale, and could only claim damages.

Following the reform, Article 1124 provides that withdrawal during this period does not prevent the formation of the promised contract.

2. The facts

In this case, two companies entered into a memorandum of understanding on June 21, 2012 under the terms of which one of them granted the other a unilateral promise to transfer shares. The beneficiary company then had six months from a general meeting to exercise the option.

On March 8, 2016, the promisor notified the retraction of its unilateral promise, and on the following June 28, the beneficiary company notified its intention to exercise the option.

The promisor is then summoned to enforce the promise and to pay damages for the late completion of the sale.

The Court of Appeal rejected his claims on the grounds that the contract – and therefore the promise – was concluded before the entry into force of the Ordinance of February 10, 2016, and that it is therefore the old law, whereby the exercise of the option by the beneficiary after the retraction of the promisor cannot result in the forced realization of the sale, that is intended to apply.

3. The opinion of the Court of Cassation

The Court of Cassation overturned the appeal decision by applying the law resulting from the reform, according to which the promisor is definitively obliged to sell, even before the opening of the option period offered to the beneficiary, making any retraction ineffective.

The Court thus confirms the decision of the Third Civil Chamber of June 23, 2021, which also applies the new law to a contract concluded before the reform of February 10, 2016.