Legal responsibilities of drafting lawyers

The drafting lawyer is required to ensure the validity and full effectiveness of legal acts, according to the Internal Regulations of the Legal Profession. This includes verifying all elements that could compromise the operation, such as the powers of signatories, the status of commercial leases, and necessary contracts.

Duty of advice remains even with clear documents

The Court of Cassation has emphasized that the drafter must inform the parties on the scope and consequences of their commitments. A clear contractual stipulation does not necessarily mean the concerned party was properly informed of its legal or economic consequences.

Sole drafter may be liable to non-client parties

The Court of Cassation has ruled that when a lawyer is the sole drafter of a private deed, he must advise all parties involved, regardless of whether his mission was initially entrusted to only one of them. This can result in liability for the drafter if a non-client party suffers a loss.

Liability release clauses are not absolute

A liability release clause does not eliminate the lawyer’s duty of advice. However, it can help show that the parties were aware of specific risks. The Court of Appeal of Douai ruled in 2018 that a drafter was not held liable because the buyers were informed of the risks involved.

Deferred payment mechanisms are critical

The lawyer must consider mechanisms to secure the payment of the price, such as seller’s privilege, mortgage, guarantees, or rescission clauses. A guarantee in the act but not recorded may be completely useless. The lawyer is not responsible for the economic success of the sale.

Ongoing contracts must be individually assessed

The sale of a commercial business does not automatically transfer all the contracts used for its operation. The lawyer must determine whether each contract is transferred by right, requires the counterparty’s agreement, or remains the seller’s responsibility. Failing to address this can lead to liability.

Commercial lease requires careful attention

Article L145-16 of the Commercial Code prohibits conventions that prevent the tenant from transferring the lease to the buyer. The lawyer must ensure the lease is thoroughly reviewed and that the stipulations are respected. Failure to do so may make the transfer inopposable to the lessor.

Lawyer is not an auditor of business accounts

The disappearance of certain mandatory mentions in the Commercial Code has not removed all questions about the economic information provided to the buyer. However, the lawyer is not expected to act as an accountant. The lawyer's duty is to advise the buyer to carry out additional checks or consult a financial expert.

Price seizure involves distinct obligations

The lawyer may also act as the price seizure in a sale. They must ensure the respect of formalities and deadlines before releasing funds. However, they cannot keep the price indefinitely without justification. This role is a separate source of liability.

Liability requires proof of fault and damage

Identifying an error by the lawyer is not enough to obtain compensation. The victim must prove fault, damage, and a causal link between them. In the context of the duty of advice, the damage is often a lost opportunity, and the compensation depends on the likelihood of avoiding it.

Statute of limitations must be considered

The statute of limitations for acting against a lawyer must be examined carefully. In common civil liability, the time limit is five years from when the right holder became aware of the facts. For inaccuracies in the Commercial Code, the time limit is one year from taking possession.

Lawyer is a legal guarantor, not an economic insurer

The lawyer is the legal guarantor of the operation, not its economic success. Their liability is based on whether the risk was identified, explained, and addressed in the legal act. Prevention of liability depends on the quality of legal analysis and the traceability of the advice given.