⚖️ The Facts
Promise to sell, option exercised, then the final deed. After the sale, the sellers paid an additional municipal tax they hadn’t been clearly informed about at the promise stage. They argued that, had they known earlier, they could have negotiated its allocation to the buyer. The Toulouse Court of Appeal dismissed their claim, holding that a general warning about possible taxes was sufficient.
📜 What the Court Said
French Supreme Court (Cass. 1re civ., May 28, 2025, No. 23-18.737): reversal. When the additional tax is determinable in principle and amount (because it stems from an existing municipal resolution), the notary must give that advice proactively before the parties are definitively bound. A generic warning isn’t enough: specific, quantifiable information is required at the pre-contract stage.
💡 Analysis
👉 The ruling frames the notary’s duty to advise around a key concept: determinability. If a local legal text makes the tax predictable, failing to provide precise information at the promise stage is a breach. The duty goes beyond “flagging a risk”: it requires determined, actionable information that enables negotiation.
👉 If a tax can be identified through a municipal resolution, the notary must disclose it before the parties are locked in, so they can anticipate and contractually allocate the cost.
📈 Practical Implications
- Timing: secure the tax information at the promise stage (attach a “local taxes” checklist).
- Traceability: prove the information was given (written notes, summary tables, explicit mention in the promise).
- Method: monitor municipal resolutions in force (French CGI, Art. 1584 et seq.); in case of uncertainty, provide min/max estimates or conditional allocation clauses.
- Litigation risk: a breach can ground liability (French Civil Code Art. 1240) and reimbursement of the tax if it could have been shifted through negotiation.
🔭 Outlook
Beyond the additional municipal tax at issue, the “determinability → prior advice” approach extends to other charges defined by law (development tax, special contributions, participation fees). The more objectively calculable the amount, the stronger the need for specific, negotiable information upfront.
