When a judgment is rendered by default, the opposition procedure allows the defaulting party to have the case retried. This procedure necessarily leads to an outcome that raises important practical questions for litigants. What happens to the initial decision? What are the effects of a rejection or admission of the opposition? What avenues of appeal remain open?
The fate of the initial decision
The first question concerns what happens to the default judgment during the opposition proceedings.
Contrary to what previous case law may have held, the act of opposition does not annul the default judgment. Article 572, paragraph 2 of the Code of Civil Procedure clearly settles this issue: " A judgment against which an objection has been lodged is invalidated only by the judgment reversing it." .
This rule puts an end to the legal uncertainty that would have resulted from the discontinuity of decisions. It has a major practical advantage: for the duration of the opposition proceedings, the default judgment retains its value as a document of title. In particular, this allows the creditor to take protective measures without the judge's prior authorisation.
A concrete example? A judicial mortgage taken on the basis of a default judgment remains valid during the opposition proceedings. It will only lapse if the judgment on the opposition retracts the initial decision.
The rejection of the opposition
The opposition may be rejected on two separate grounds:
- either because it is inadmissible (late, lack of standing or interest, etc.)
- either because, after re-examination of the merits, it appears to be unfounded; or
In these cases, the default judgment regains its full effectiveness. Its effects, which had been suspended by the opposition, are consolidated.
The court may refer to the grounds of the first judgment. As the Court of Cassation pointed out in a judgment of 23 February 1955, " as the opposition does not have the effect of annulling the decision rendered by default, but only of suspending its effects, there is nothing to prevent the contradictory decision, rendered on opposition, from reiterating the grounds of the decision rendered by default, the provisions of which it declares to uphold" .
It should be noted that the two successive judgments are indivisible. In practice, it is advisable to serve them together so that they can be enforced or appealed at a later date.
Admitting the opposition
If the opposition is upheld, the consequences are radical: the original decision is revoked. From now on, only the provisions of the judgment handed down on opposition will apply.
The default judgment is deemed never to have existed. This legal fiction calls into question all previous acts of enforcement:
- If a judicial mortgage has been registered, its release must be ordered.
- Implementing measures already carried out may give rise to restitution
- Damages may be claimed from the original claimant
This last possibility stems from the principle that enforcement is always carried out at the creditor's own risk, as stated in article L.111-10 of the Code of Civil Enforcement Procedures.
Appeals against the ruling on opposition
Since the purpose of an opposition is to initiate an adversarial debate after a judgment has been rendered by default, the resulting decision cannot logically be the subject of a new opposition. The principle of " opposition on opposition is "applies.
On the other hand, an unsuccessful opponent may appeal to the Court of Cassation. But against which decision? Because of the indivisible link between the two judgements, it is prudent to refer to both decisions in the appeal, although the Cour de cassation has not taken a clear position on this point.
Certain situations require particular attention. If provisional enforcement has been ordered, complex restitutions may be required if the opposition is upheld. A lawyer will be able to advise you on the strategy to adopt and assess whether an appeal is appropriate.
Opposition remains a technical procedure whose subtleties may escape non-lawyers. Do not hesitate to consult our firm to preserve your rights, whether you are the plaintiff or the defendant in this procedure.
Sources
- Code of civil procedure, article 572
- Code of civil enforcement procedures, article L.111-10
- Cour de cassation, judgment of 23 February 1955, JCP 1955. IV. 50
- Cour de cassation, judgments of 21 July 1919 and 20 December 1922, DP 1923. 1. 63
- Cour de cassation, Req. 1 August 1924, DH 1924. 537
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