Reminder of the rules governing the burden of proof regarding the payment of a compensatory payment (soulte).

Published on June 3, 2019

Business Law

It sometimes happens (today less and less) that a notarial deed mentions that a sum of money (sale price, or part of the sale price, equalization payment) was paid "outside" the notary's accounting (this means that the sum in question was not paid to the notary's office and that the funds were transferred directly between the parties).

We will reiterate that such a practice is imprudent and that it is infinitely preferable for all sums to pass through the accounting of the drafter of the deed.

Is it possible to contest the mention appearing in the deed?

Often, the price or the compensatory payment mentioned as settled outside the notary's accounts will never be paid. Can we therefore imagine a remedy?

First of all, the statement in the deed (known as the "quittancement") is considered valid until proven otherwise: it is therefore up to the person claiming not to have been paid to provide proof to the contrary (which, moreover, constitutes proof of a negative fact since one must prove not having received a sum of money…).

The temptation to reverse the burden of proof is strong. This is what two siblings had done: they were to receive a cash payment under a deed of partition-gift. In this case, the cash payment had never been made by the sister (although the deed stated it had been paid), who had acknowledged this following a formal notice served by a bailiff.

The appeal judges considered that the evidence contrary to the statement appearing in the deed of gift-partition was validly provided.

However, in its judgment of May 9, 2019, the Court of Cassation overturned the decision of the Saint-Denis de la Réunion Court of Appeal, recalling that the verbal acknowledgment of non-payment (made by the sister debtor of the equalization payment) was not admissible because, in this matter, proof by simple testimony was not admissible.

It follows that the sister should have acknowledged in writing that she had not paid the sums to her brother and sister.

The procedural strategy must therefore be defined from the outset of the case, in consultation with the lawyer, who will then determine the means to prove against a mention in a notarized deed.