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Property in France

Notaires Must Offer Interpreting Support

Wednesday 02 July 2014

A French court has ruled that notaires are obliged to offer interpreting support to international clients.

In a landmark case that is likely to be of interest to many international buyers and sellers of French property, a notaire has been found guilty of negligence by not ensuring his Dutch client had properly understand what was going on.

The case concerned a Dutch national, who in 2002 consented in to be guarantor to a limited company on a €500,000 mortgage taken out with the Banque Populaire de Sud-Ouest.

In 2005 the company was place in bankruptcy, as a result of which the bank assigned the guarantor to payment of the debt.

In response, the guarantor brought a legal action against the notaire, from whom he sought damages, for not having invited him to be assisted by an interpreter during the signing of the completion formalities.

The court of appeal found in favour of the guarantor to the total level of his liabilities to the bank, on the basis that the notaire had failed in the primary obligation of a duty to advise - 'son devoir de conseil'.

The notaires appealed this decision to the Cour de Cassation, the French Supreme Court.

The notaires argued that they were not obliged to inform the guarantor of something which he knew already and which he could not ignore, ie, that he did not have a good understanding of the French language.

They considered that although there was fault on their part, there was no guarantee that even if they had offered interpreting assistance it would have been accepted.

Concluding, they stated that the negligence committed by the guarantor in not ensuring he had properly understood what he was signing granted them exemption from their mistake of depriving him of the services of an interpreter.

However, despite the eloquence of the notaires, their arguments were not accepted by the judges, who ruled that the notaire had a fundamental duty of advice to their clients, and their failure to offer interpreting support amounted to professional negligence.

Accordingly, the judges declared that the notaires should be required to indemnify the guarantor to the extent of his liabilities to the bank.

Comment

We think it would be unwise for buyers and sellers of French property to believe that such decisions are always going to go this way. As usual in litigation, it will all depend on the circumstances of the case.

Moreover, the case has taken a timescale of 'Jarndyce and Jarndyce' proportions to come to a conclusion, beginning with a sale in 2002 and finally ending in a court case in 2014!

It also remains unclear from this judgement whether the obligation applies to the sale and purchase contract, as well as the deed of sale. Arguably, it is far more important that buyers and sellers understand the terms of the former, but this decision relates only to the deed of sale.

Translation does not necessarily imply understanding, and if you are unclear about aspects of French law, then the translation of terms may still not mean a lot.

Neither will a translator translate what is not in the contract!

If interpreting services are required and used these will be at the charge of the client; the court ruling does not imply that notaires must pay for a translator.

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