Navigating the procedural maze can be perilous without knowing the tools available to defend yourself. The Code of Civil Procedure offers the litigant three main weapons with which to counter an opposing claim: the defence on the merits, the plea of inadmissibility and the procedural objection. Although fundamental, this triptych conceals some important subtleties.
Definitions and basic distinctions
The triptych of defences
The Code of Civil Procedure divides defences into three distinct categories:
- The defence at the back This is defined in article 71 of the Code of Civil Procedure and "aims to have the opponent's claim rejected as unjustified, after an examination of the merits of the case". It directly attacks the right invoked by the plaintiff.
- The end of the road According to article 122, its purpose is "to have the adversary's claim declared inadmissible, without examination of the merits, for lack of right to sue". It targets the action itself, not its merits.
- The procedural exception Article 73 specifies that the purpose of the action is "either to have the proceedings declared irregular or extinguished, or to suspend their course". It challenges the regularity of the procedure.
This apparently clear tripartition sometimes masks blurred boundaries.
Direct versus indirect means
The distinction between direct and indirect defence is an essential criterion.
The defence on the merits is direct: it challenges the opponent's claim head-on. Typical example: in a liability action, denying the existence of fault.
On the other hand, the exception and the plea of inadmissibility are indirect means: they do not directly deny the merits of the claim but seek to dismiss it by procedural means.
This fundamental difference often determines the characterisation of the plea, as confirmed by the judgment of the Court of Cassation of 9 May 2001 (Civ. 1re, no. 98-19.145).
History and development
The current system is the result of a significant historical development. Under the old French law, there were only defences and exceptions. The 1806 Code of Civil Procedure maintained this duality.
Case law has gradually developed the concept of the "fin de non-recevoir". Decree no. 72-684 of 20 July 1972 finally enshrined it, completing the triptych with which we are familiar.
This development shows that the classification of resources is not set in stone but responds to the practical needs of the justice system.
Classification of defences
Qualification criteria
There are a number of criteria for correctly qualifying a means of transport.
For the defence on the merits, the decisive element is its directness. It attacks the substantive right invoked by the plaintiff.
For a plea of inadmissibility, it is the absence of the right to act that is decisive. According to the case law, this absence may be absolute or relative to the precise objective pursued by the plaintiff. For example, obstacles to summary proceedings (lack of urgency or serious dispute) constitute grounds for dismissal (Civ. 3e, 19 March 1986, no. 84-17.524).
As for the exception, it is characterised by criticism of procedural regularity. For example, the lack of jurisdiction of the court seised (art. 75 CPC).
Importance of qualifications
The classification determines the applicable regime, in particular :
- Time of presentation: exceptions must be raised in limine litis and simultaneously (art. 74 CPC), unlike defences on the merits and pleas of inadmissibility, which may be raised in any event.
- The possibility for the court to raise them of its own motion: certain grounds of public policy must be raised of its own motion (art. 125 CPC).
- The remedies available against the decision ruling on the plea.
Getting the qualification wrong can therefore have disastrous consequences.
Special cases and sui generis means
Some methods defy traditional classifications, creating grey areas.
The case of nullity is emblematic. The nullity of a contract invoked by the defendant may constitute a defence on the merits if it is intended to defeat the claim for performance, or a counterclaim if it pursues a broader objective (Ass. plén., 22 April 2011, no. 09-16.008).
Other pleas seem to escape the classic triptych. For example, the Cour de cassation has held that the lapse of proceedings is an "incident d'instance" (Civ. 2e, 5 Sept. 2019, no. 18-21.717), without classifying it as a procedural exception.
These nuances show the limits of the classification system.
Current issues and recent developments
The emergence of resources outside the triptych
Recent developments in case law suggest the existence of defences that fall outside the traditional triptych.
According to the Cour de cassation, a challenge to a request for joinder of proceedings does not fall into any of the three traditional categories (Civ. 2e, 2 Feb 2023, no. 21-15.924). The plea relating to the division of cases within the same court also seems to constitute a specific category (art. 82-1 CPC).
These examples illustrate the need for flexibility in the procedural system.
Devolutive effect and lapse of time
The question of the devolutive effect of the appeal has recently raised questions. Since Decree no. 2017-891 of 6 May 2017, the failure to indicate the heads of the judgment criticised in the statement of appeal could give rise to a sui generis sanction: the absence of devolutive effect (Civ. 2e, 30 Jan. 2020, no. 18-22.528).
This solution, which does not appear to fall within either the exception of nullity or the exception of non-receipt, blurs the traditional boundaries.
Blurred boundaries between categories
The previous examples show that the boundaries between categories are not always clear-cut.
The distinction between a plea of non-receivability and a plea of exception is particularly delicate in certain cases. For example, a plea that the enforcement court is unable to hear a claim for damages constitutes a plea of non-receivability (Civ. 2e, 15 Apr. 2021, no. 19-20.281), even though it raises a question of jurisdiction.
The characterisation often depends on the context. Thus, invoking lack of jurisdiction is not usually a defence on the merits, but becomes one in exequatur proceedings when the international jurisdiction of the foreign court is challenged (Civ. 1re, 13 June 1978, D. 1979. 133).
This complexity requires a detailed analysis of each situation. Expert legal advice will determine the appropriate classification and the applicable regime, maximising your chances of success.
Our firm has in-depth expertise in civil procedure and can help you identify the appropriate defence for your situation. Do not hesitate to consult us for a personalised analysis - the correct qualification of your defence can change the outcome of your trial.
Sources
- Code of civil procedure, articles 71 to 126
- Civ. 1st, 9 May 2001, no. 98-19.145, Bull. civ. I, no. 128
- Civ. 3e, 19 March 1986, no. 84-17.524, Bull. civ. III, no. 34
- Plenary Ass., 22 April 2011, no. 09-16.008, Bull. ass. plén., no. 8
- Civ. 2e, 5 Sept. 2019, no. 18-21.717, Bull. civ. p. 172
- Civ. 2e, 2 Feb. 2023, no. 21-15.924, Bull. civ. p. 67
- Civ. 2e, 30 Jan. 2020, no. 18-22.528, Bull. civ. p. 102
- Civ. 2e, 15 Apr. 2021, no. 19-20.281, Bull. civ. p. 198
- Civ. 1re, 13 June 1978, D. 1979. 133, note Santa-Croce
- Decree no. 72-684 of 20 July 1972, D. 1972. 438
- Decree no. 2017-891 of 6 May 2017
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