An elderly person sells a house en viager (a French life annuity sale), for a lump sum and an annuity, then dies less than three months later. The heirs seek the annulment of the sale for lack of aléa (the element of chance on which such a contract depends, here the uncertainty over how long the seller will live). In a decision of 18 January 2023, the Third Civil Chamber of the Cour de cassation (the French supreme court for civil and commercial matters) recalls that the aléa is assessed at the time the contract is formed; a death shortly afterwards is not enough, on its own, to remove it. For the valuer called on to inform that debate, the valuation date is therefore the date of the deed.
The facts
By notarial deed (acte authentique) of 19 October 2011, a woman sold her home to a buyer in return for a capital sum and a life annuity (rente viagère). She died on 17 January 2012, a little under three months later, following a fall. Her heirs sued the buyer for annulment of the sale for lack of aléa. The Orléans Court of Appeal dismissed their claims on 5 October 2021.
Before the Cour de cassation, the heirs raised two arguments. First, according to the Court of Appeal’s findings, the seller was 78 on the day of the sale and suffered in particular from chronic kidney failure that had become end-stage, requiring dialysis four times a day at home; the buyer, who was close to her, could not have been unaware that a fatal outcome was to be feared shortly. Second, the price, set on the basis of a market value of the house of €270,000, consisted of a lump sum (bouquet) of €50,000 and an annual annuity of €15,960: full payment assumed that the seller would live another thirteen years. In their view the price was therefore illusory, and the Court of Appeal had not answered that argument.
The decision
The Cour de cassation dismissed the appeal (Cass. 3e civ., 18 January 2023, appeal no. 21-24.862, unreported).
It set out the test, drawn from article 1964 of the French Civil Code as then applicable: “the element of chance exists where, at the time the contract is formed, the parties cannot assess the benefit they will derive from it because that benefit depends on an uncertain event” (translated from the French).
It then approved the Court of Appeal, which had found that the seller, “although aged 78 and suffering from serious health difficulties”, had died following a fall, and had held, in its sovereign assessment, “that nothing showed that this death was inevitable in the short term on the day of the sale because of the end-stage kidney failure from which she suffered, a condition that did not amount to the end of life because of the replacement medical techniques she received at home”. The lower court had also held that it was not established that the buyer “had medical knowledge and knew that the seller’s state of health irremediably compromised her life expectancy on the day of the life annuity sale, despite their close ties”. The Court of Appeal “was entitled to infer from this that the sale was not devoid of an element of chance”.
On the price: “The Court of Appeal, having found that an element of chance existed at the time of the sale, was not required to answer an ineffective argument on the time needed to reach full payment of the price of the property.”
The aléa is therefore judged on the day of the deed. The death less than three months after the sale was not enough to deprive the contract of its aléa: neither the inevitability of the death nor the buyer’s knowledge was established. The decision rules only on the aléa: the price argument was raised only in support of it, and the Court did not have to decide whether the price was serious or concealed a gift.
What this changes for valuation
For the aléa, the valuation date is the date of the deed. In a dispute over the aléa of a viager sale, the value is set at the date the contract was formed: here 19 October 2011, not the day of the death or of the trial. Market value (Charte de l’expertise en évaluation immobilière, the French property valuation charter, 6th edition, November 2025, Title III, § 1.1) is established by comparison with sales from the same period (Title III, ch. 2), vacant or occupied according to the deed: where the seller keeps the use of the property, it includes a discount for occupation.
Three figures give a duration. Value, lump sum, annuity: on the figures put forward by the heirs, the €220,000 of value not covered by the lump sum represented almost fourteen years of annuity at €15,960 a year (220,000 / 15,960 ≈ 13.8); the heirs themselves spoke of thirteen years. This raw calculation ignores any indexation of the annuity, the discounting of future payments and the value of occupation where the seller stays in the property. A full report sets out these parameters and compares them with the statistical life expectancy at the seller’s age on the date of the deed.
The calculation does not disprove the aléa. Once the aléa is established, the Court treats the argument based on the time needed to pay the price as ineffective. That duration describes the economics of the contract; the aléa lies in the uncertainty of the death and in what the débirentier (the buyer, who owes the annuity) knew. The valuer gives no opinion on the health of the crédirentier (the seller, who receives it), a question for the medical evidence; the report provides accurate figures, at the right date, which the judge weighs against the rest of the file.
The figure remains useful on other grounds. Where the dispute concerns the seriousness of the price or a disguised gift, questions the decision does not address, the gap between value and the sums promised becomes the very subject of the debate: see Cancelling a property sale in France for a price far too low? and, for a share sale by a mother to her son, Disguised gift through a share sale: proving the impoverishment. Finally, a viager sale is not a prêt viager hypothécaire (French lifetime mortgage), where the Court holds the property valuation decisive for the borrower’s consent: Lifetime mortgage in France: why the valuation is decisive.
What the valuer takes from it
- The aléa of a viager sale is assessed on the day the contract is formed; a death shortly afterwards is not enough, on its own, to remove it.
- To assess the aléa, the relevant market value is that of the property at the date of the deed, vacant or occupied according to its terms.
- Once the aléa is established, calculating how long it would take to pay the full price is not enough to have the sale annulled on that ground.
- The report sets out its assumptions: indexation of the annuity, discount rate, life expectancy retained, value of occupation.
Further reading
The Market value page describes the assignment, its timescale and its fee. The guide Producing a valuation in a French court: which format to choose? and the glossary entries valeur vénale, date de valeur and décote pour occupation complement this article. On the value of a split ownership right, another 2023 decision: Usufruct of SCI shares and French wealth tax: a possible discount. On the same theme: Disguised gift through a share sale: proving the impoverishment and Farmland sold to the tenant son: rapport is measured as let. The decision is available on Légifrance.
What next
A life annuity sale to check or to dispute?
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