When a homeowner signs an off-premises sales mandate with an estate agent - i.e. remotely, at home or electronically - they benefit from a 14-day right of withdrawal, in accordance with the Hamon Act of 17 March 2014. This period is designed to protect consumers from making hasty decisions, by giving them the opportunity to withdraw from their commitment without justification or cost.
What is often overlooked is that even if the seller authorises the agency to begin work immediately, by expressly requesting early execution of the mandate, this does not deprive the seller of the right to withdraw. This early execution - which allows the agency to publish the advert, organise viewings or negotiate - does not cancel the withdrawal period until the agency's assignment has been "fully executed".
The question then becomes one of determining at what point this task is legally considered to have been completed. In the case of a sales mandate, this corresponds to the search for a buyer who meets the conditions set out in the mandate. From that point onwards, the right of withdrawal lapses.
To give a precise answer to this problem, two legal systems need to be brought together: the protective rules of the Consumer Code (articles L. 221-25 and L. 221-28), which stipulate that the right of withdrawal ceases as soon as the service has been fully performed with the express agreement of the consumer, and the provisions specific to property transactions.
Article 6 of the Hoguet Act prohibits estate agents from receiving any remuneration or sum of money until the sale has been "effectively concluded and recorded in a single written deed containing the commitment of the parties".
This legal framework creates a particularly tricky grey area if, within this 14-day period, the agency finds a buyer and sends an offer to purchase. What happens if the offer is accepted? Is it still possible to withdraw or not? Right to compensation or not?
The right of withdrawal: principle and exceptions
In accordance with the Hamon Act of 17 March 2014, a sales mandate signed off-premises gives the principal the right to withdraw within 14 days, without charge or justification. This period starts to run from the date on which the mandate is signed.
However, the seller may expressly request early execution of the mandate, i.e. authorise the agency to begin its work immediately (putting the property online, visits, negotiation). This request does not cancel the right of withdrawal.
However, the exercise of this right depends on the contractual situation at the time when the seller wishes to withdraw.
Case 1: the seller has accepted an offer to purchase within 14 days
✅ The sale is legally complete. As soon as the seller accepts the offer to purchase (whether or not at the agent's price), the agreement of wills is formed. The Court of Cassation has already ruled that the exchange of an offer and its acceptance may constitute a sale, even without a compromise, as long as nothing conditions the validity of the agreement on any particular formalism (Cass. 3e civ., 29 Sept. 2016, no. 14-26674).
➡ Consequence: the right of withdrawal can no longer be exercised. The seller is bound by his acceptance and can no longer invoke the withdrawal of the mandate to go back on the sale. Although the sale may not yet have been formalised in writing, it is considered to be legally complete.The agency's mission is therefore fully fulfilled.
Case n°2: the seller refuses the offer, even at the agent's price, within 14 days
❓ Here, the ground is more uncertain. In the absence of acceptance of the offer at the mandate price, there is no perfect sale. Case law remains silent on this precise point in the context of the withdrawal period, and doubt remains as to the effect of withdrawal of the mandate on the seller's obligations.
On the one hand:
- The seller has not accepted, so the sale has not been completed.
- The Hoguet Act prohibits agents from claiming their remuneration before the conclusion of a written deed binding on the parties.
On the other hand:
- If the offer transmitted complies with the terms of the mandate (price, timeframe, etc.), the seller had contractually undertaken to accept it.
- His refusal constitutes a breach of his obligations, even if he exercises his right of withdrawal.
➡ Possible consequence: application of the penalty clause provided for in the mandate. Even if the commission is not due, the agency could invoke this clause in order to obtain compensation under ordinary contract law. This is not remuneration, but compensation for a contractual loss. The agency can be considered to have performed its duties in full, even if the sale has not been finalised. The principal expressly asked for the assignment to be carried out in advance, which involves finding a buyer at a specific price, and not seeking the principal's agreement a second time.
To summarise
| Situation | Right of withdrawal? | Commission due? | Possible compensation? |
|---|---|---|---|
| Offer accepted within 14 days | ❌ No | ✅ Yes (at the time stipulated in the Hoguet Act) | N/A |
| Offer at price refused | ✅ Yes | ❌ No | ✅ Yes, via penalty clause |
| No offer transmitted or at a lower price | ✅ Yes | ❌ No | ❌ No |
