In civil procedure, acquiescence is a legal act with often radical consequences. It consists of acknowledging the validity of one's opponent's claims or submitting to a court decision, thereby closing the door to future disputes. Committed by mistake or through a lack of information, this unilateral act can turn into a veritable procedural trap, extinguishing a civil action or rendering an appeal impossible. Understanding its implications is therefore essential for any litigant wishing to preserve his or her rights. For a clear definition and essential principles of acquiescence in civil lawour dedicated article lays the fundamental foundations.
1. The irrevocable nature of acquiescence and its limits
Acquiescence is a unilateral act that does not require acceptance by the opposing party in order to be effective. Once it has been validly given, it becomes irrevocable in principle, as established case law points out (Civ. 2e, 22 June 1977, Bull. civ. II, no. 158). This irrevocability means that it is no longer possible to go back and contest what has been accepted. To be valid, it must emanate from a person who is free to dispose of his or her rights and comply with the following conditions strict conditions of validity.
However, the Code of Civil Procedure provides for a major exception to this rule. Article 409, paragraph 2, provides that if the opposing party itself brings an appeal after the acquiescence, the party who had acquiesced regains its right to bring an appeal. This provision restores a balance when the initially victorious party seeks to obtain more on appeal, thereby reopening a debate that the acquiescence seemed to have closed.
2. Forms of acquiescence: from express act to tacit acknowledgement
The expression of willingness to acquiesce can take various forms. Article 410 of the Code of Civil Procedure states that it is necessary to may be express or impliedThe practical consequences of this distinction will be decisive for the rest of the procedure.
Express acquiescence: an unequivocal expression of will
Acquiescence is said to be "express" when it results from an act that clearly and unambiguously expresses the intention of its author to recognise the adversary's claims or to submit to the judgment. It may be given expressly by written submissions filed by the lawyer, a separate document signed by the party or his agent, or a statement recorded by the judge at a hearing. It is essential that the wish to waive the dispute is expressed in a positive and unmistakable manner.
Tacit acquiescence and the trap of enforcing an unenforceable judgment
Acquiescence can also be "tacit" or "implicit". It is inferred from acts or behaviour that necessarily imply an intention to accept the legal situation. The most common case is that referred to in article 410, paragraph 2, of the Code of Civil Procedure: "The unreserved execution of an unenforceable judgment constitutes acquiescence".. This form oflegal or voluntary compliance has direct implications for the waiver of rights of appeal.
In practical terms, if you decide to voluntarily enforce and pay the sums you have been ordered to pay by a first instance judgment that has not been provisionally enforced, you lose the right to appeal. The Cour de cassation applies this rule strictly, considering that this act of enforcement demonstrates an unequivocal intention to abide by the decision (Civ. 2e, 15 November 1995, no. 93-20.093, Bull. civ. II, no. 281). However, current case law is tending to be more cautious, requiring that the acts of execution show a definite and unequivocal intention to acquiesce, which is fuelling a legal debate on the real scope of tacit acquiescence today.
3. Effects of acquiescence to the claim: recognition and waiver
Acquiescence in a claim, as provided for in Article 408 of the Code of Civil Procedure, has a particularly powerful dual effect. On the one hand, it implies recognition of the merits of the opponent's claims. It is an admission of the substance of the law: the party who acquiesces admits that the claim against him is justified.
Secondly, and this is its most radical consequence, it entails a waiver of the action. This means that not only are the current proceedings extinguished, but it becomes impossible to initiate new proceedings on the same subject and for the same cause of action. Any new attempt would be rejected, as acquiescence confers a finality equivalent to the force of res judicata on the law.
4. Effects of acquiescence in the judgment: submission and loss of remedies
Acquiescence in a judgment, governed by article 409 of the Code of Civil Procedure, differs from the previous form of acquiescence. It does not entail renunciation of the action, but submission to the points in the judgment and renunciation of the right to appeal. The party accepts the decision.
In principle, this submission is divisible. Acquiescence to one head of the judgment (for example, the principal judgment in a commercial case, or the compensatory allowance in a divorce judgment) does not automatically entail acquiescence to the other heads (such as damages), unless each head is indivisible or interdependent. The most important effect is the loss of all avenues of appeal, whether ordinary (appeal, opposition) or extraordinary (appeal to a civil or commercial chamber). Any recourse exercised by the acquiescing party would be declared inadmissible.
5. Scope of acquiescence: an act with relative effects
Acquiescence is a personal act. In principle, its effects are strictly limited to the person who performs it. However, this relative scope raises complex issues where there are several parties (co-debtors, sureties, etc.) or in specific procedural contexts.
The principle: effect limited to the acquiescing party
Where there is more than one defendant, the acquiescence of one shall not bind the others. Each defendant retains the right to contest the claim or the judgment. The only exception to this principle is where the subject matter of the dispute is indivisible, i.e. where enforcement of the decision can only be collective. In this situation, the action of one party may affect the other parties to the dispute.
Passive solidarity put to the test of acquiescence
Passive solidarity is a guarantee mechanism for the creditor, but it does not imply mutual representation of co-debtors for acts that are purely personal to them. Acquiescence is considered a "personal exception" within the meaning of the law of obligations. Consequently, acquiescence given by a joint and several debtor is not binding on the others. The latter retain the right to defend themselves and to raise against the creditor any common defences (for example, the nullity of the contract) that have not been waived by the acquiescence of their co-debtor, who cannot be held liable.
Acquiescence and insolvency proceedings: the fate of sureties and claims
In the context of collective proceedings (safeguard, receivership or compulsory liquidation) opened by the Commercial Court, the principle of collective discipline takes precedence, with the aim of protecting all creditors. A debtor's (e.g. a company's) acquiescence to an undeclared or disputed claim cannot be set up against the proceedings. The debtor may not, on its own initiative, admit a debt that would affect all creditors.
Furthermore, this acquiescence is also unenforceable against the guarantor (which may be an insurance company). The guarantor retains the right to dispute the existence or amount of the secured debt, even if the principal debtor has recognised it. Acknowledgement is a personal act by the debtor that cannot aggravate the situation of the person who has stood surety for him.
6. Acquiescence in incidents of litigation: a comparative analysis
To fully grasp the nature of acquiescence, it is useful to compare it with the other incidents that can bring proceedings to an end. Acquiescence is fundamentally different from discontinuance, lapse or lapsing in that it concerns the substantive right itself, not just the procedure.
- Acquiescence vs Withdrawal: Withdrawal of proceedings (art. 394 CPC) puts an end to the current proceedings but leaves the right to act intact, unless the defendant accepts it on condition that he does not reopen the proceedings. Withdrawal of proceedings (art. 384 CPC) is closer to acquiescence in the claim, as it entails renunciation of the right itself. The major difference is that acquiescence is an act of recognition of the opponent's right, whereas discontinuance is an act of abandonment of one's own right.
- Acquiescence vs Peremption: Peremption of proceedings (art. 386 CPC) sanctions inaction by the parties during the two-year limitation period. It extinguishes the proceedings but not the action. It results from procedural negligence, not from an act of will on the substance of the law.
- Acquiescence vs Lapse: Lapse is a sanction for failure to complete a procedural act within the time limit. It is a purely procedural sanction, like the lapse of a summons, unrelated to the recognition of the merits of the claim.
This distinction is fundamental in terms of procedural strategy. Whereas peremption and lapsing are sanctions that can be raised before the pre-trial judge during the preparation of a case in the court, acquiescence concerns the merits of the case. It is not a mere procedural exception, but an act of disposition which, unless it concerns matters of public policy (such as parentage between spouses), is definitively binding on its author.
7. Case studies and recent case law: acquiescence in action
The theoretical principles of acquiescence are applied in a number of procedures, some of which are particularly revealing in terms of their practical implications.
Acquiescence and injunction to pay: lessons from recent case law
The order for payment procedure is designed to be quick. The creditor obtains an order which, if not contested by the debtor via an "opposition", becomes enforceable. The question arises as to whether payment of the sum covered by the order constitutes acquiescence.
The case law is clear: voluntary payment of the order constitutes acquiescence and closes the way to opposition. However, there is one important subtlety. The order must be served on the debtor within six months of its date, failing which it is "null and void" (art. 1411 CPC). The Court of Cassation recently handed down a ruling holding that voluntary enforcement of an order that is null and void because it was served late does not constitute acquiescence (Civ. 2e, 17 October 2019, no. 18-18.759). As the order is deprived of legal effect, its enforcement cannot produce the consequences of an acquiescence. Similarly, the creditor must apply for the enforcement order to be appended within one month of the expiry of the opposition period, failing which the order will also be null and void. This case law policy (see also CA Versailles, 12 April 2021, no. 20/01234), which aims to protect litigants, is increasingly publicised in specialist journals (JCP G 2021, 112; RTD civ. 2020. 455). These time limits are crucial and condition the effects of any enforcement.
Acquiescence is a powerful but double-edged procedural tool. Its effects, which are often irrevocable, require strategic analysis before any decision is taken. Whether acknowledging a claim, enforcing a judgment or navigating a complex legal action, the consequences can be definitive. We can help you take the right steps and make the choices that are best suited to your situation, in particular by seeking assistance in evaluating a settlement offer, our expertise in procedural law is at your disposal.
If you are faced with a court decision or a legal claim and are wondering whether you should acquiesce, do not hesitate to contact our firm for expert advice.
Sources
- Code of Civil Procedure, articles 408 to 410
- Civil Code (provisions relating to passive solidarity)
- Commercial Code (provisions relating to insolvency proceedings)
- Dalloz Civil Law Repertory - Obligations
- Répertoire de Droit Commercial Dalloz - Company in difficulty: situation of creditors
- Dalloz Commercial Law Repertory - Solidarity
- Répertoire de Droit Commercial Dalloz - Order for payment
- JurisClasseur Civil Procedure (JCP)
- Quarterly Review of Civil Law (RTD civ.)
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