Apple Inc. v. Samsung Electronics Co. Ltd. et al
NOTICE by Apple Inc.(a California corporation) Translations of Foreign Authority (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3, #4 Exhibit 4, #5 Exhibit 5, #6 Exhibit 6, #7 Exhibit 7, #8 Exhibit 8, #9 Exhibit 9, #10 Exhibit 10, #11 Exhibit 11, #12 Exhibit 12, #13 Exhibit 13, #14 Exhibit 14, #15 Exhibit 15, #16 Exhibit 16, #17 Exhibit 17, #18 Exhibit 18, #19 Exhibit 19, #20 Exhibit 20, #21 Exhibit 21, #22 Exhibit 22, #23 Exhibit 23, #24 Exhibit 24, #25 Exhibit 25, #26 Exhibit 26, #27 Exhibit 27, #28 Exhibit 28, #29 Exhibit 29, #30 Exhibit 30, #31 Exhibit 31, #32 Exhibit 32, #33 Exhibit 33, #34 Exhibit 34, #35 Exhibit 35, #36 Exhibit 36, #37 Exhibit 37, #38 Exhibit 38, #39 Exhibit 39, #40 Exhibit 40, #41 Exhibit 41, #42 Exhibit 42, #43 Exhibit 43, #44 Exhibit 44, #45 Exhibit 45, #46 Exhibit 46, #47 Exhibit 47, #48 Exhibit 48, #49 Exhibit 49, #50 Exhibit 50, #51 Exhibit 51, #52 Exhibit 52, #53 Exhibit 53, #54 Exhibit 54, #55 Exhibit 55, #56 Exhibit 56, #57 Exhibit 57, #58 Exhibit 58, #59 Exhibit 59, #60 Exhibit 60, #61 Exhibit 61, #62 Exhibit 62, #63 Exhibit 63)(Selwyn, Mark) (Filed on 5/7/2012)
III. Special Contracts
By M. Gérard Cornu
Professor at the Faculty of Law and Economic Sciences
of the University of Poitiers
1. Determining the price
In order to have a sale, if the price must be determined and designated by the parties (art. 1591 Civil
Code), it is not required that the amount be worked out, upon exchanging consents. At that time, the
price can still be uncertain, in its quantum (amount), provided that it can be determined, as it appears
from the general provision of article 1129, paragraph 2 of the civil code. However, according to a
constant interpretation, the price is determinable, in the sense of this text, since its subsequent
determination must take place “on the basis of the clauses of the contract, through a relation with
elements which no longer depend on the wish or desire of one of the parties” (Wording taken by the
Chamber of Requests of Aubry and Rau, January 7. 1925, D.H. 25. 57 and renewal, since, except for a
few variants: Req. March 11, 1935, D.P. 36.I. 48, S. 35. I.133; Req. 22 of December 22, 1936, S. 37,
I. 101; Aubry andt Rau, 6th ed. By Esmein, § 349, text and note (34-2); adde: Baudry-Lacantinerie and
Saignat, I. XIX, numbers 132 et al; Planiol, Ripert and Hamel, t. X, No. 36). All at once, the manner
for calculating the price must be determined, from the beginning among the contracting parties and in
this equation, the unknown must be independent from their later wish or desire. Once chosen, the
process for evaluation must play out like an objective mechanism (except for the valid recourse to
arbitration by a third party: art. 1592, Civil Code).
Such conditions are met – and the sale is complete – when for instance, the price of a promise to sell
must be determined according to the official index of the cost of living on the day that it is
implemented (Poitiers, Nov. 17, 1943, D. A. 44, 28; see in the same sense, Req. of Dec. 22, 1936,
prec.; Lyon, October 6, 1958, D. 58.758, note J.C.), or when the amount to be paid must be obtained
from a simple arithmetic calculation (that of the area in the sale per m2 of a lot designated in its
adjacent plots of land, Req. July 4, 1848, D. P. 48. 5. 364; see Req. of March 11, 1935, préc.)
On the other hand, the price is not adequately determined, when it cannot be calculated without a new
appreciation by the parties. This explains why the Court of Cassation has censured the decree that had
been issued for an agreement on price, which determination of the latter remained conditional in the
future, “by the acceptance by the buyer of the preferential rate which would be granted by the seller
and which would be established in good faith between them according to clearly specified
conditions”. Under such conditions, the price could not be determined objectively but remained up in
the air by a later understanding between the parties (Com. March 24, 1965, Gaz. Pal. 65. 2. 22, D. 65.
Anyway, when things appear very simple, some discording decisions bring out the necessary nuances.
Reasoning first of all in connection with this case, when setting the price is given up to the unilateral
wish or desire of one of the parties, cancellation of the sale goes into full effect on the grounds that
the pleasure of a single party cannot make the law of the contract (from where one finds the nullity of
the obligation under the potestative condition, art. 1174 civil code). There is no sale if the price is at
the seller’s discretion (Pau, July 9, 1888, D. P. 89. 2. 62; Com. February 11, 1957, Bull. Cass. 1957,
III, No. 49, p. 42; Com. October 23, 1962, Bull. Cass. 1962, III, No. 420, p. 364). Conversely, the
combination is leonine, if the buyer is the sole decision-maker of the price (Com. May 5, 1959, D. 59.
575; Trib. Corr. St.-Sever, March 23, 1900, D.P. 1903, 5. 779).
Here or there however, opposing decisions meet: a validated promise to sell, even though its price
depends to a large extent, of the wish or desire of the beneficiary: Com. November 4, 1952, Gaz. Pal.
53. I. 84, Rev. 53. 341, Carbonnier observation); a sale considered complete and perfect, even though
the amount was left up to the Seller’s decision (Douai, March 15, 1886, D.88. 2. 37). One will say,
undoubtedly at least for the first decree, that setting the price was not discretionary on the part of the
buyer (the purchase price of the goodwill depended on the prices that it was using for its own
products). It is mainly notable that in both cases, the judges had estimated as normal the prices used
by the buyer and the one asked by the seller, as if the courts assumed a type of moderating power,
based on a control of the price and the respective good faith of the parties (such a power is only
designed for an isolated operation or a closed operation, not on a staggering of projected operations).
Coming back to our assumption, if one assumes now that setting the price depends no longer on a
single contracting party but as in this case, on implementing a new agreement between them, nullity is
also firm in its principle. In the absence of an agreement for the price, (art. 1583 civil code), the
complete and perfect sale is missing a component which the judge cannot provide, especially when
the time arrives, he would have to reduce a divergence of appreciation between the parties (Com.
February 28, 1962, Bull. Cass. 1962, III, No. 136, p. 110: see Civ. January 28, 63, Bull. Cass. 1963, I,
p. 54). A price to be discussed is not a pretium certum.
Here again, however, a decision gives a supporting note, by keeping as determinable a negotiated
price within an agreed maximum (Req. February 14, 1927, D. 28. I. 80). However, the existence of a
legal or conventional ceiling does not suffice in general, to save the operation (See Com February 11,
57 and Octob 23 62, préc.). But in 1927, it involved appreciating the responsibility of a power
supplier who alleging the uncertainty of the price, had cut power to the consumer (a plant). Here
again, there is a nuance: it is within the contentious matter of the abusive break that courts can
exercise a certain moderating power as stated above, because there may be fault in breaking up
advanced negotiations under certain circumstances, (for instance, an engagement would be an
example !). On the other hand, the judge is powerless for an action being implemented, if he cannot
complete an incomplete agreement with by an element of his own. In this case, the buyer was asking
for damages for breaking an agreement which in reality was an exclusive sales agreement, but the
details are missing to know whether in the field, circumstances would have justified damages (see J.
Guyenot, Etudes juridique et économique des conventions d’exclusivité de vente / Legal and
economic studies of exclusive sales agreements, Dr. soc. 1965, p. 78 et al, see on the other hand, the
topic example which in terms of a promise to sell gives a degree of the First Civil Section, May 11,
1965, D. 65. 629).
b) Lease Agreement
2. Grounds and conditions for a tacit renewal
The First Civil Section points out that “it is based on a presumption of wish or desire of the parties”
(March 31, 1965, Gaz. Pal. August 28-31, D. 65. 472). This voluntary basis is almost a redundancy,
for a renewal which by definition, is a new leasing contract. Historically, it was for the owners above
all a reassuring postulate always active by its consequences in their favor (since then, they have
witnessed other disillusions).
At the base – and as if the individual wish had eclipsed the law – a specification is missing though: it
is that the Civil Code establishes the presumption of tacit renewal according to given facts: the
continuation, by the tenant, of its enjoyment after the expiration of the written lease agreement, and on
the part of the lessor, the absence of opposition (art. 1738, 1739, 1759, Civil Code). There would
certainly not be any motive to keep this legal presumption – fully interpretive – as undeniable (it is
juris tantum; see already Pothier, Louage / Renting, No. 343). But one could have believed that to
prevent the tacit renewal from taking place, the text forced the lessor to send to the lessee, not a
formal notice with a customary deadline, but at least a reminder (arg. Art. 1739 Civil Code).
One knows that the requirement of a formal protest has not been retained: since the 19th century, it had
been allowed that in the absence of a notice-reminder of art.. 1739, it was up to the judges to
appreciate sovereignly which, in the conduct of the lessor, contradicted a presumed consent to renew
the lease (Baudry-Lacantinerie and Wahl, Louage / Renting, I, No. 1416; Planiol, Ripert, Givord and
Tune, t.X, No. 627l Req. February 9, 1875, D.P. 76, I, 27; in this case however, there would have
been a formal refusal of renewal on the part of the lessor; Civil Court of Grenoble, Nov. 5, 1952,
J.C.P. 1953, 7352, Givord note). Another shift – which was in fact the reversal of presumption – took
place when a decree seemed to allow that the tacit renewal assumed for the lessor, more than an
abstention, more than a passive attitude: a positive manifestation of wish or will, an active adherence
to renewal ( Com. February 1, 49, Rev. 50. 72, Carbonnier obs.).
One hesitates to situate this decree or decision in this last line. To object to the renewal, it sufficed
that the lessee leave without response and without reaction a request to increase the rent, coming from
the lessor. By law, must one understand, with the Court of Appeals that the “tacit renewal assumes the
establishment of an agreement between the parties about the terms and conditions of the lease” (which
is evident, in the case of an original lease) or, according to the rather ambiguous wording of the
supreme Court “that in the absence of the lessor’s wish or will, the tacit renewal could not take
place”? In any event, there must be a certain benevolence to appreciate, in fact, either a disagreement
in price, or a wish or desire of non-renewal, a request for a rent increase made three years before the
expiration of the lease, and never reiterated (the lease had been granted for 9 years in 1940: see for a
patent disagreement: Paris, April 11, 1946, D. 46. 228).
However, this case teemed with virtual developments. One could not seriously reproach a lessor for
having continued to collect the rents after its vain complaint, and even until 1953 (4 years after the
expiration of the written lease). Collection of the rents, at least after written notice does not imply in
itself, consent to a new lease (Soc. January 6, 1949, J.C.P. 49. 5041; Aubry and Ray, by Esmein, op.
cit. § 369, note 22-2). On the other hand, something had to be derived from the fact that from 1953 to
1959, the rent had not be paid nor demanded. Assuming that the first renewal had been accomplished,
how could the second one have taken place in 1958 while such disinterest seemed exclusive, on both
sides, of any wish or will to renew: for one, an act of simple tolerance, for the other, de facto
occupancy, without any legal claim (something like an intervention in title, but in the sense of an
abandonment, see art. 2258 Civil code, the theory of possession is not far away) ?
Leaving aside searches of intention – appeasing but deceiving – one could have found support in other
arguments. Because the tacit renewal does not have a voluntary foundation. It is also based on
customs, that of terms and conditions among other and on the difficulty of finding a farm or a house,
after Saint Martin or Saint John (it is the loss of an opportunity in the game of supply and demand; see
Aubry and Ray, by Esmein, op. cit., § 369, note 19-5; Carbonnier, obs. préc.). But, if it had been a
bare lot, and for this type of opportunity, there is no customary term.
c) Ordinary Lease
3. Application of the express termination clause due to non-payment of the rent, when its amount
In the leases submitted to its authority, the law of September 1, 1948 has tempered the rigor of the
express termination clause, by instituting a grace period which the interim relief judge can grant under
the conditions of art. 1244 of the Civil Code (art. 80, paragraph 3, I. September 1, 1948, comp. for the
common law; Civ. July 2, 1860, D. 1860, I. 284; Req. of June 7, 1926, January 30, 1928, D.P. 28. I.
63). It is also required that the tenant request such measure within one month from its notification by
the lessor (eod. loc.). Deferred, not defused, the mechanism of the termination conditions keeps its
bite with a delay. Once the one- month period has passed, without complaint or settlement by the
tenant, the termination is implemented outright and irrevocably. Whether approached by any of the
parties, the judge no longer has the faculty of appreciation nor the power to grant a delay. Once the
accomplishment of the condition (art. 1183 civil code) is observed, he must declare the produced
effect (termination is a fact) and draw the consequence (order expulsion, subject to considering the
urgency, if he renders a summary judgment).
The opposite practice of grace periods, following a late objection, had already been condemned (Civ,.
July 29, 1952, D.52, 744, S. 53, I. 100). La Chambre Sociale (March 25, 1965, Gaz. Pal. 65. 2. 43)
approves today the Court of Aix for having following the hard line which is indeed within the logic of
commissoria lex, as designed at present, in terms of lease or sale (V. Givrod and Tune, No. 595 and
Hamel, No. 165, t. X, Planiol and Ripert; see Com. February 22, 1965, Gaz. Pal. October 2-5, 65).
It is true that the Supreme Court itself shows benevolence when the rent amount is the object of a
serious objection, to excuse a tenant, and in his lateness of paying in full and when overlooking a
deadline request. For this type of dispute, a decree had to grant that the application of the termination
clauses remains subordinate to the good faith requirements, in accordance with art. 1134 of the Civil
Code (Com. January 7, 1963, Bull. Cass. 1963, III, page 14; adde Soc. January 16, 1953, D. 53,
Somm. Page 63; see Soc. February 13, 1964, Bull. Cass. 1964, IV. 107). Upon expiration of the term,
it appears that the courts assume, by exception, in this case, the last resource of a “relief” from
termination, in favor of the tenant who is not responsible for the delay.
At first sight, the tenant in this case would appear to have merited such an indulgence. He had
maintained that the rent was unlawful, according to the words even of the expert designated by the
judge. When looking closer though, the relaxatio legis introduced by the cited decisions, is based on a
deeper analysis of the respective conduct of the parties: the courts only refuse effect for the
termination clause when they notice in the objection to the rent amount, exonerating elements for the
tenant, such as: an error on the part of the lessor (for instance, demand a higher amount from the
tenant without giving the opportunity to check it; see in this case the judicial termination: Civ. 1st,
October 21, 64, Gaz. Pal. 64, 2, 456) and for the tenant, the certain wish or desire to comply with its
obligation (a wish or desire, translated through a record, by offers, or even better, by a partial
settlement; V. Com. January 7, 63 and Soc. January 16, 53, préc.). However, in this case, the tenant
had committed the serious error of not paying twelve rent periods.
Instead of insisting on this decisive fact, the decree states more generally that an agreed rent must be
considered as being lawful and remains due as long as a final court decision did not declare it
unlawful. In itself, the formula is beyond reproach. In practice, it can mean that the sole issue of a
claim is not sufficient to block the termination clause. But the play of the latter must not be
unrelenting by the sole reason that the judge of the main issue has not yet decided on the objection
regarding the rent amount, as long as in this objection, as we have seen, the lessor can have its
responsibility and the tenant its good intention and desire (especially since the interim relief judge
cannot settle this serious objection himself nor take it as a reason to suspend the termination
condition: Paris, December 16, 1961, Gaz. Pal. 62. 2 . 66).
Even if confined like this, will one object that a relaxation of the severity takes place in the general
policy of rigidness which the express termination clause traditionally requires ? On the other hand,
isn’t it excessive that by generalizing these clauses, the courts are in the process of losing all powers
which articles 1184 and 1244 of the Civil Code grant them and this at the very moment when the
progressive liberation of rents might make them desirable ? Without abandoning in principle the
Roman automatism of the express termination condition, for the menacing design of the old
jurisprudence (Pothier, Du contrat de vente, No. 459; Jur. Gén. V° Louage, No. 335), it is
undoubtedly salutary to acknowledge a certain power of appreciation to the judge within the limits
d) Employment Contract
4. Notwithstanding the collective agreement, application to the employee of more favorable
provisions of the individual agreement.
Under the condition of preserving social benefits which he enjoyed as a member of the guild, a
foreman had accepted in the same company, a lower job. The Chambre sociale annuls the decree
which had decided after his dismissal, compensations due to the employee had to be calculated, taking
into account his actual functions, by reference to the jobs nomenclature defined by the collective labor
agreement applicable to the business (January 25, 1965, Gaz. Pal. 1965, I. 388).
Indeed, it is a principle that the individual agreement has the upper hand over the collective
agreement, to the extent that it is more beneficial to the employee. Technically speaking, the
divisibility of the clauses of the collective agreement enables the employee to accumulate advantages
from both sources (provided that they do not deal with the same right). Politically, it is the vocation of
the collective agreement of being an instrument of social progress rather than of leveling, a floor or
base, not a ceiling: when it guarantees the employee a minimum of protection, it does not prohibit the
employer to grant additional benefits. Formally sanctioned by the Labor Code (art. 31 e, in fine, book
1), this principle has already been the object of some applications (Soc. November 29, 1945, D. 46 .
188; see March 23, 1953, Dr. soc. 1953, page 408; and Soc. November 15, 1957, Bull. 57, IV, No.
1060, page 757; V. Brun and Galland, III, 74 and update 1962, page 128; Rivero and J. Savatier, page
245). If they appear rare, it is undoubtedly because in terms of social promotion, collective
agreements are taking the lead and individual contracts are rather lagging behind.
Would it be necessary to bring into doubt (with the workers of the first hour) the right of the employer
of reserving the benefit of these more favorable provisions to this or that employee of the company ?
It appears that the pressure of dissatisfaction reduces, in fact the problem of tolerance of some
individual situations and that in any event, the right to complain would only belong to disadvantaged
employees without freedom, for the master to come back on his word.
What remains is to ask oneself is why the wording turned to by the Supreme Court is not art. 31 e of
the Labor Code but rather art. 1134 of the Civil Code. There was indeed a violation of the given word
and the promise of the employer appeared from its correspondence, rather than from a labor contract
stipulation. This might be a reason to find the ground for a common law decision. Unless the special
provision of the Labor Code has been treated by preterition as a pure and simple application of the
principle of autonomy stated in article 1134 of the Civil code ?
For the time being, no one will exaggerate here the preeminence of individual wish or desire, because
it is above all the preeminence of the most favorable provision which is established by the Labor
Code, at each degree of hierarchy of the standards between the law and the collective agreement (art.
31 a, paragraph 2, book 1); between the national agreement and the regional or local agreements (art.
31, paragraph 2); between all the prior ones and the establishment agreements (art. 31, paragraph 3).
From a lower standard, improvements can arise freely, as being foreign to the imperative nature of
the higher standard. Then, one remembers that on the other hand, the transient social law, tempering
the immediate effect of the new collective agreements for the contracts in effect, watches over
maintaining the advantages acquired, with success, once and for all (V. Camerlynck, La clause de
maintien des avantages acquis dans les conventions collectives /The clause of maintaining benefits
acquired in collective agreements, Dr. Soc. 1959. I. 406; see about the difficulties following the
denunciation or non-renewal of a collective agreement: M. Despax, Dr. Soc. 1965, page 387)). And
one must admire, under the arrangement of these two mechanisms, this right certain of its path, which
can always move forward but is hard to turn back, for which anything that is possible is good, and one
sees immediately where the symbol is – open progress – and where is the security, irreversible
5. Non-Invocability against the company, a corporation, of a decision taken unanimously by its
After having put in place a company governed by the law of June 28, 1938, for the creation of a real
estate entity, the founders agree to amend, to their benefit, the articles of association. They eliminate
the clause which ensures equal rights to all shares, in particular with respect to the attribution of lots,
and they adopt a mode of distribution which favors their own group of stock at the expense of another
group distributed among the public.
To cancel such a decision, it would have sufficed to refer to the bylaws which subordinated their
amendments to a proposal by the manager and to the agreement by all partners. However, the
founders had excluded from their deliberation not only the manager but also new partners, holders of
stock acquired before such moment. The Court of Paris has retained this ground of nullity (February
1, 1965, Gaz. Pal. 1965, I, 206, D. 65, 564, A. Dalsace note) and it was right to consider overall as
partners, beneficiaries of reciprocal promises to sell (see Paris, March 11, 1964, J.C.P. 65, 14169,
However, other reasons confer to its decree a more general scope: the amending act (under private
deed) is declared incontestable for the sellers of stocks as well as for the company itself (at least until
the day – considerably later – when a certain date had been reached, by its filing among the original
documents of a notary).
Consequently, article 1328 of the Civil Code forms the king pin of the argumentation and the latter
finds in it, without contradiction, a legal ground. Indeed, since civil companies, at least those that do
not take on a commercial form, are not subjected to any legal publicity (not for their creation, nor for
the subsequent decisions by the partners), common law fills in by vocation the gaps of special law.
Opposability to third parties only is for the records which have reached a certain date under the terms
of article 1328 of the Civil Code (without forgetting, on their part, the rules of property
announcements). To introduce art. 1328, the Court has even taken the detour of art. 1834 of the Civil
Code – duplicate of art. 1341 of the Civil Code in terms of companies – which requires written
evidence “about whatever might have been alleged before, at that time of and since ” the corporate
deed(see confirmed judgment: T.G.I. Seine, January 16, 1963, Gaz. Pal. 63. 2. 79).
The principle being admitted, application of art. 1328 assumed however that the company would be
treated as a third party, regarding the litigious act. For that purpose, the Court of Paris has first
reaffirmed the corporate entity of the civil company, a reminder never unnoticed for a principle more
than fifty years in existence (Req. February 23, 1891, D. 91, I. 337; March 2, 1892, D. 93. I 169; Civ.
November 22, 1911, D. 1913. I. 83). Nor was it sufficient to recognize the company as an entity
distinct from its members. It had to be shown that it had remained foreign to the act, that it had not
been represented in it. Absence of some partners from the meeting of the founders could be an
argument in this sense. It is remarkable that other facts have been decisive: the absence of the
manager who by himself, represents the company and the lack of mentioning the deliberation in the
register containing the minutes of the meeting, which prevented that “it was brought to the attention of
the company”. Beyond that, these elements of an organic and formal nature, adopt a general value it
seems, as principles of order in civil companies, and this is not a negligible point of view for a type of
company which neither the law, nor the agreement often, consider as a complete organization.
At the time when the development of civil companies amplifies or takes hold in the most varied of
areas (real estate, agricultural, professional civil companies), the commented decision represents a
sound alarm which points out the need of subjecting civil companies to an adequate publicity. This
wish to the legislator must in any event be accompanied by a salute to the courts. Because it is
precisely in their mission of mobilizing the common law resources and those of reasoning, when
regulations are missing and when one might think that, even after the institution of a legal publicity,
their vigilance will not be superfluous, to unmask fraud and to introduce what is required of a judicial
police force in the fuzziness which civil companies enjoy. Even when they will no longer be, for the
law, the poor parents of commercial companies, the civil companies will remain undoubtedly the
cherished offspring of jurisprudence.
f) Life annuity
6. Burden of the judicial pension increase, in case of a sub-transfer by the payer of an annuity,
for the building acquired as counterpart
In the chase of measures of revalorization and the increase of the cost of living, the law of February
23, 1963 (adding an article 2 bis to that of March 25, 1949) perfects the means for reducing the
discrepancy. For a period, it provides the recipient of an annuity, the faculty of showing in court that
the building transferred or alienated as counterpart for the pension has earned, as a result of new
economic circumstances, a value increase that is higher than the legal valuation and permits the judge
to grant him – up to a certain ceiling – an increase that exceeds the legal lump sum (V.Y. Bechade,
J.C.P. 1963, I. 1800).
Is the payer of the annuity allowance required to bear the full burden, when he has resold the building
? That is a point that the law, being detailed after all, does not decide. Between “successive payers of
an annuity allowance”, it distributes the weight of the increase according to the profit of each in the
increased value of the building (art. 2, paragraph 3 and art. 2 bis, in fine). But in itself, the sub-transfer
or sub-sale of the building does not impact the pension service (it does not bring novation by changing
the payer, nor does it add a payer to the other). The sub-buyer only becomes payer by virtue of a
special stipulation to which the recipient must give his consent. French law does not allow the sale of
debt, without the approval of the creditor / recipient (Planiol, Ripert and Radouant, I, VII, Nos. 1106,
1141 et al; Carbonnier, Théorie des obligations / Theory of obligations No. 210; Civ. March 12, 1946,
D. 46, 268), nor a fortiori against his wish.
In a case where the recipient had given a formal refusal, it is rightly so that the Court of Paris
(February 16, 1965, Gaz. Pal. 1965. I. 386) has proclaimed the right of the latter to object to a
substitution of the payer (a prerogative that is even less contestable than the fact that the person of the
payer has greater importance in a contract with successive implementation). Obviously, from that
resulted that the sub-buyer, foreign to the debt, could not even partially support an increase of the
So then, did the whole increase of the allowance be assigned to the sole payer ? The Court of Paris
thought so, by deciding that the increased value of the building, in the hands of the sub-buyer, should
be taken into account.
After all, there were some reasons for measuring the burden of the payer to its benefit, by only
considering the increased value of the property “in his hands”. The wording appears in article 2 bis of
the law of March 25, 1949 and article 2 keeps at least an analogous value, as application of the saying
Ubi onus, ibi emolumentum (to the point even of leaving the loss, if any, for the recipient).
In any event, it remained to be shown that a payer of a pension allowance must in this quality, assume
the full burden of all subsequent pension increases. One must admit for legal increases that their lump
sum feature makes them indivisible. But a judicial review has more exact measures (comp. R.
Savatier, La loi of March 25, 1949, J.C.P. 40. I. 767, Nos 9 and 10). To give it up, one must have a
stronger reason than that of Ubi onus … Justice. It becomes necessary to assume that the credit of the
pensioner is not only revisable, like a maintenance allowance, but that it includes a right to integral
revalorization, opposable to the payer of the annuity in all its developments and for any event. The
chances for revalorization are in other words assimilated to the guarantees of solvency: the payer of
the annuity must not diminish them in any way by his / its own doing (even without error).
Considering the interests rather than the rights, the Court of Paris remembered that the judge had to
take into account the “social and family interests present” to set the increased rates (art. 2 bis,
paragraph 2, l. March 25, 1949). It pointed out that if the original payer had kept the annuity burden,
the sale price had been established consequently and would have permitted it, as reinvestment, to
acquire another property and the added value would have gone to him / it. One could ask oneself
whether such considerations enter in the cannons of the law and if, the measures of revalorization
were done to redistribute the property added value (which translate beyond the increase of the cost of
living, the price of certain lots). But it would be a somber thought and it is always ungracious to
argue against the recipient of the annuity, by reasoning about a decision which undoubtedly was based