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   Legal : The suspensives clauses
The Files The suspensive clauses, in a preliminary contract, cause to suspend the sale with the realization of a future and dubious event. Thus, if the event is carried out, the sale could be done; if it is not carried out, the promise or the compromise of sale will be cancelled - and its recipient will recover the sums which it paid.
The rule concerning these conditions is contractual freedom, knowing that most current, in particular because it is obligatory, is the condition relating to obtaining a credit. Under the terms of this principle of contractual freedom, since the salesman and the purchaser agree, a great diversity of condition precedents can appear in the preliminary contract (for example, preliminary resale by the recipient of a promise of its preceding housing).

The condition precedent relating to obtaining a credit

It concerns the purchaser wanting to finance, by means of one or more loans, the purchase of a residential building or mixed use (professional and of dwelling). It will be said whereas the promise or the compromise of sale is concluded under the condition precedent from obtaining from one or more loans.
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This condition precedent is obligatory.
It applies since the purchaser resorts to a loan , except if this one expressly indicates in the preliminary contract that he gives up for the benefit of this clause (in this case, the preliminary contract will have to specify that the price will be paid without the assistance of one or more loans, or will have to comprise the handwritten mention of the hand of the purchaser indicating that he gives up for the benefit of the law even if, ultimately, it resorts to a loan).

The condition precedent of obtaining a loan must have one period of one month validity minimum as from the signature of the promise or the compromise of sale or, if it is about an informal agreement subjected to the formality of recording as from the date of this enregistrement.
 
However, taking into account the time of instruction by the organizations of credit, it is envisaged one period of validity of the condition from 2 to 3 months in the majorities of the cases. If the purchaser does not manage to obtain a financing within the time envisaged, it will not be engaged by the act which it signed (and will be able consequently to recover the sums that it poured).
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Certain litigations can occur as for the interpretation of the concept of "obtaining the loan".
Here the various cases of figure which could be considered by the courts :

If the purchaser could not obtain the financing sought for reasons independent of his will: the condition precedent plays. It is however desirable that the purchaser can justify that it made his possible to obtain the financing within the time envisaged.

If the purchaser does not want financing proposed: if the financing does not correspond to its financial capacities, it has the right to refuse the proposals of the organizations of credit. On the other hand, the refusal of offers of credit in connection with the resources of the borrower cannot be opposed to the realization of the condition precedent.

If the purchaser indicated in the promise or the compromise of sale the conditions of debt which it wishes to respect (that can relate to for example the interest rate or a maximum monthly payment): the condition precedent will be able to play if the offers of credit do not correspond to its requirements.


 

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