Nov
27
Absence de pouvoir du mandataire social pour conclure un contrat et nullité

La nullité d'un contrat fondée sur l'absence de pouvoir du mandataire social, qui est relative, ne peut être demandée que par la partie représentée.

Tel est le sens d'un arrêt rendu par la première chambre civile de la Cour de cassation le 12 novembre 2015 (Cass. civ. 1, 12 novembre 2015, n° 14-23.340, F-P+B ; cf. déjà en ce sens, Cass. civ. 1, 2 novembre 2005, n° 02-14.614, FS-P+B). En l'espèce, une SCI (la bailleresse) a consenti un bail commercial à une société (la locataire), à compter du 1er juin 2008 et pour une durée de vingt-trois mois. Après le départ des lieux de la locataire, la bailleresse l'a assignée en paiement d'un arriéré de loyers et taxes. La locataire a opposé la nullité du bail pour défaut de capacité de la SCI bailleresse.

La cour d'appel d'Aix-en-Provence (CA Aix-en-Provence, 3 juin 2014, n° 12/21221) a prononcé la nullité du bail pour défaut de capacité de la bailleresse, retenant que le bail a été signé par la SCI, représentée par M. G. qui était décédé le 29 juin 2006, soit avant la signature de l'acte litigieux. Selon les statuts, celui-ci avait été nommé gérant pour une durée illimitée et, en conséquence, pour la cour d'appel, la SCI, privée de gérant, ne disposait plus de la capacité pour contracter. Mais, énonçant le principe précité, la Cour régulatrice censure l'arrêt d'appel au visa de l'article 1984 du Code civil.

(Source : Actualités du Droit du 25/11/2015)

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