The rules on nullity for formal defects are a key point in civil procedure. They determine when and how a procedural document can be annulled for formal irregularity. These rules, codified in articles 112 to 116 of the Code of Civil Procedure, deserve particular attention.
Conditions for cancellation on formal grounds
The requirement for a text: "no nullity without a text".
Article 114 of the Code of Civil Procedure lays down a fundamental principle: no procedural act may be annulled on the grounds of a defect in form unless such annulment is expressly provided for by a text.
There are two important exceptions to this principle. The deed may be annulled, even without a specific text, in the event of failure to comply with a substantial formality or public policy.
Case law defines a substantial formality as one that "relates to the raison d'être of the deed and is indispensable for it to fulfil its purpose" (Civ. 3 March 1955, JCP 1955.II.8654).
Example of a substantial formality: the expert's obligation to mention in his report the follow-up given to the parties' statements (Civ. 3e, 3 Oct. 1991, no. 89-12.943).
The requirement of a grievance: "no nullity without a grievance".
Even if the nullity is provided for by a text or concerns a substantial formality, article 114 paragraph 2 of the Code of Civil Procedure requires that the irregularity has caused a prejudice to the person invoking it.
This is the cornerstone of the system of procedural nullities. It is designed to prevent formalism from becoming a delaying tactic in the hands of litigants acting in bad faith.
The Cour de cassation adopts an approach in concreto of the grievance. It is not enough to invoke a potential disturbance. The litigant must show that, in his specific case, the irregularity disrupted the exercise of his rights of defence.
This position has been affirmed in numerous decisions, including a judgment of 20 October 2011 (Civ. 2e, no. 10-24.109), which states that the grievance must be assessed specifically in each case.
Regularisation of the deed
The third condition is that the formal defect in the deed must not have been rectified. Article 115 of the Code of Civil Procedure provides that the nullity is covered by the subsequent regularisation of the document, if this does not leave any grievance and occurs before any time limit.
Since the law of 17 June 2008, there has been a notable difference: even if the deed is cancelled, it still interrupts the limitation period and the time bar (article 2241 paragraph 2 of the Civil Code). This considerably extends the period for regularisation.
Examples of grievances recognised by case law
Grievances caused by the irregularity
The courts generally recognise two main types of grievance:
- Failure to appear due to an irregularity in the service of the document. For example, when the bailiff's failure to send the simple letter (provided for in article 658 of the Code of Civil Procedure) deprived the addressee of all or part of the legal time limit for appeal (Civ. 2e, 26 Nov. 1986, no. 85-13.834).
- Late lodging of an appeal due to defective service of the judgment.
On the other hand, the plea of nullity is rejected when the irregularity did not prevent the party from appearing or appealing within the time limits. Case law is consistent on this point (Civ. 3e, 24 Oct. 2007, no. 06-19.379).
Other recognised grievances
Case law sometimes admits other types of grievance:
- Difficulty in identifying the adversary due to an omission in the summons.
- Difficulty in enforcing a judgment where the domicile is not mentioned or is not mentioned correctly in the statement of appeal (Civ. 2e, 14 June 2001, no. 99-16.582).
- The defendant's ignorance of the state of liquidation of the plaintiff company, having prevented him from verifying his powers (Civ. 2e, 13 Nov. 2014, no. 13-24.192).
This does not constitute a grievance
The judges refused to classify it as a grievance:
- The fact of not being able to benefit from a fast-track procedure due to the indication, in the appeal document, of the professional address and not the personal domicile (Civ. 2e, 25 Nov. 2004, no. 02-12.829).
- Ignorance by the successful bidder of the identity of the organisation to which the sale price is addressed, despite an error in the mention of that organisation (Civ. 2e, 13 Nov. 2014, no. 13-25.546).
Procedural rules governing the objection of nullity on formal grounds
Time of invocation of the exception
A plea of nullity based on a formal defect must be raised in limine litisIn other words, before any defence on the merits or appeal (article 112 of the Code of Civil Procedure).
However, Article 112 allows the objection to be raised as and when the acts are completed, for those that are subsequent to the defence on the merits.
All irregularities affecting the same document must be raised simultaneously (article 113 of the Code of Civil Procedure).
Case law allows an exception to these temporal rules: the exception remains admissible when the author only became aware of the irregularity at a late stage (Civ. 1re, 15 Jan. 1991, no. 89-05.003).
Special features of the pre-trial proceedings
In the context of proceedings before the court or the court of appeal, a plea of nullity must be raised before the judge or the adviser responsible for preparing the case for hearing, by means of special pleadings (articles 789 and 791 of the Code of Civil Procedure).
This rule was applied in a judgment of 10 December 2020 (Civ. 2e, no. 19-22.609).
Particularity for investigative measures: the nullity of an expert report is a matter for the judgment panel and not the pre-trial judge, as it constitutes a defence on the merits and not a procedural objection (Civ. 2e, 31 Jan. 2013, no. 10-16.910).
No power of the court to declare nullity of its own motion
The Code of Civil Procedure does not specify whether the court may, of its own motion, declare a contract null and void on the grounds of formal defects. Case law has filled this gap by ruling that the judge does not have this power.
This position has long been consistent (Soc. 17 June 2009, no. 08-41.358; Civ. 2e, 23 Oct. 1991, no. 90-14.334).
Legal professionals need to pay particular attention to the rules governing nullity for formal defects. A lawyer can prepare an effective response when the other party's deed contains formal defects, but can also secure his own deeds. This technical mastery makes it possible to turn a procedural point into a strategic advantage. If you would like to benefit from an in-depth analysis of your procedural documents or detect flaws in those of your opponent, our firm is at your disposal.
Sources
- Code of Civil Procedure, articles 112 to 116
- Civil Code, article 2241
- Civ. 3 March 1955, JCP 1955.II.8654
- Civ. 3e, 3 Oct. 1991, no. 89-12.943
- Civ. 2e, 20 Oct. 2011, no. 10-24.109
- Civ. 2e, 26 Nov. 1986, no. 85-13.834
- Civ. 3e, 24 Oct. 2007, no. 06-19.379
- Civ. 2e, 14 June 2001, no. 99-16.582
- Civ. 2e, 13 Nov. 2014, no. 13-24.192
- Civ. 2e, 25 Nov. 2004, no. 02-12.829
- Civ. 1st, Jan. 15, 1991, no. 89-05.003
- Civ. 2e, 10 Dec. 2020, no. 19-22.609
- Civ. 2e, 31 Jan. 2013, no. 10-16.910
- Soc. 17 June 2009, no. 08-41.358
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