In France's legal arsenal, certain tools remain unjustly in the shadows despite their formidable effectiveness. The interpellative summons, an often overlooked legal tool, is one of these. Far from being a mere formality, it constitutes a formidable strategic act for any litigant wishing to consolidate a case before taking legal action. It is a pre-litigation process that aims not to coerce, but to provoke a position to be taken, to obtain a statement that can be used as evidence in court.
What is a summons? Definition and role of the judicial commissioner
The summons is an extrajudicial document, i.e. it is served outside any legal proceedings that have already been initiated. Its purpose is specific: to obtain evidence. To do this, a court commissioner, a sworn and impartial official, goes to the home of the person in question to ask one or more specific questions and faithfully records their answers, silence or refusal to answer in a report.
The purpose of a bailiff's summons is not to demand performance of an obligation, as would a formal notice or a summons to pay, but to crystallize a given situation, to establish a position with a view to possible litigation, or to provoke an admission. This is the role of the judicial officer (now commissioner) which gives this process its weight and official status, guaranteeing that the questions have been asked and the person's response (or lack of response) faithfully transcribed. This type of procedure differs from other legal mechanisms. For an overview of all the acts preparatory to legal proceedings and how to incorporate them into an effective legal strategy, consult our detailed guide.
Evidentiary value of the summons: between simple information and extrajudicial admission
The question of the strength of the evidence obtained by a summons to appear is a central and nuanced one. Its value varies considerably depending on the person summoned and the nature of his or her statements. For a more in-depth exploration of the mechanisms for establishing the truth of the facts, it is essential to understanding the law of evidence as a whole. Contrary to popular belief, the courts refuse to grant it the status of prima facie evidence in writing (Civ. 1re, 8 June 1999, no. 97-11.927).
Evidentiary value in relation to the defendant: the out-of-court confession
When the summons is addressed directly to the party against whom legal action may be taken, the response of the person summoned, recorded by the court commissioner, may constitute an extrajudicial confession. Article 1383 of the French Civil Code defines a confession as a statement by which a person acknowledges a fact that may have legal consequences against him or her. If a person questioned about a debt of a certain sum replies "Yes, I acknowledge that I owe this sum", this statement, authenticated by the bailiff, will have considerable probative value before a judge.
The value of third-party statements: mere testimony
If the person questioned is a third party to the potential dispute (a neighbour, a former employee, a witness), their statements do not have the same impact. They are considered by the courts as mere testimony. The bailiff's report is proof that the statements were indeed made, but their content will be subject to the judge's discretion, in the same way as a written statement or a simple letter. The deed simply enables the testimony to be taken in a formal and official context.
The silence of the person being questioned: how should it be interpreted by the judge?
There is no obligation to respond to a summons. This right to silence is absolute. In principle, failure to respond or react cannot be interpreted as an admission of guilt. The old adage "silence means consent" does not apply in this case. However, case law shows that while the silence of the person concerned does not constitute proof in itself, it can, when combined with other elements of the case file, shed light on the behaviour of a party. A stubborn refusal to clarify a simple situation could, for example, be seen as an indication of bad faith.
Strategic legal effects: beyond the creation of evidence
The value of the summons goes beyond simply obtaining evidence. It produces powerful legal effects that make it a formidable means of managing litigation, particularly in terms of limitation periods and in the context of recent reforms to contract law.
Interruption of the limitation period by acknowledgement of debt
This is one of the most overlooked and yet most useful effects of a summons. Article 2240 of the Civil Code states that "recognition by the debtor of the right of the person against whom he was prescribing interrupts the prescription period". A positive response, even if qualified, to a summons concerning a debt may constitute recognition and start a whole new limitation period. For example, if a debtor replies to the bailiff "I know I owe you this money, but I can't pay now", this recorded statement is equivalent to an acknowledgement of debt. It interrupts the limitation period that was in progress and a new period, of five years in commercial or civil matters, starts to run again from the date of this acknowledgement. To find out more, see our guide to all about interrupting the limitation period and its legal implications.
A tool for civil code interrogatories
The reform of contract law has introduced procedural mechanisms known as "interrogatories", which make it possible to purge uncertain legal situations. The summons to appear is the ideal procedural vehicle for implementing them. For example, it enables a third party to question the beneficiary of a preference pact to find out whether he intends to avail himself of it (art. 1123 of the Civil Code). In the context of a sale, this enables a potential buyer to secure his transaction. It can also be used to ask a party who might rely on the nullity of a contract to choose between confirming the deed or bringing an action for nullity within a period of six months (art. 1183 C. civ.). Ordinance no. 2016-131 of 10 February 2016 thus incorporated the following new provisions new "interrogatory actions" resulting from the reform of contract law which extend the usefulness of the summons.
Summonses versus other documents: choosing the right tool
It is a strategic error to confuse the summons with other documents issued by a commissioner of justice. Each tool serves a different purpose, and the choice depends on what the plaintiff is trying to achieve: prove, compel or establish.
Difference with formal notice: intention vs. challenge
The purpose of formal notice is to officially record a party's refusal to perform its obligation (to pay, to deliver, to do, etc.). It is often a compulsory prerequisite to any enforcement action. Its purpose is to compel, often with a view to a forced amicable settlement. A summons to appear, on the other hand, does not demand anything; it asks questions. Its main purpose is to prove a situation or an intention, not to obtain enforcement. It is a means of clarification.
Distinction from injunctions to pay: proving before claiming
The order for payment procedure is a simplified legal procedure that allows you to quickly obtain a writ of execution for a debt that is certain, liquid and due, and that is not seriously disputable. It is therefore different from a summons to pay, which is a formal notice to pay. It is therefore used when proof of the debt has already been established. An interpellatory summons, on the other hand, can be used beforehand, precisely when the claim is ambiguous or unrecognised, in order to obtain the admission that will make it certain and remove any dispute.
Complementarity with the bailiff's report: say vs. see
The bailiff's (or commissioner's) report freezes a material situation at a given moment. The officer describes what he sees (an abandoned building site, faulty goods, a message on a telephone). The summons, on the other hand, records what he hears in response to a specific request. The two acts are therefore perfectly complementary: the report establishes a material fact, while the summons collects a statement about that fact.
Practical implementation: procedure, drafting and costs
The summons procedure must comply with the formalities for bailiff's writs, in particular the compulsory information set out in article 648 of the Code of Civil Procedure. The crucial element is the wording of the questions. They must be clear, neutral, unbiased and sufficiently precise to elicit an unequivocal response. The lawyer's role here is essential in formulating questions that will maximise the legal impact of the answers obtained.
It is imperative that service be made on the addressee in person. The court commissioner will therefore go to the recipient's home or place of work. Direct contact is essential to obtain a clear response. The cost of the document is not regulated (referred to as "free fees") and is therefore freely set by the judicial commissioner's office. It is advisable to request an estimate from this professional. The cost of the deed is entirely at the applicant's expense.
Limits and risks: when the summons becomes a double-edged sword
Although it is a powerful tool, the summons must be handled with care. Misuse can backfire on the plaintiff. Case law severely punishes summonses that cause a disproportionate invasion of privacy. The best-known example, which gave rise to a landmark court ruling, was that of a husband seeking a divorce who had served a summons (and even a dozen) on the neighbours of the person suspected of being his wife's lover (CA Douai, 17 Dec. 2009). Such an approach, deemed vexatious and intrusive, may give rise to a penalty in the form of damages for abusive proceedings. The person to whom the document is addressed may then take action against the plaintiff.
Faced with the complexity of proof in litigation, the summons is a strategic and effective recourse. For an in-depth analysis of your situation and a tailor-made solution, we recommend that you contact our team of lawyers. Our lawyers will assess whether the summons is the most appropriate method for your situation, and will guide you in formulating the questions to maximise the evidential benefit.
Sources
- Civil Code, articles 1123, 1158, 1183, 1383, 2240
- Code of Civil Procedure, article 648
- Court of Cassation, Civil Division 1, 8 June 1999, no. 97-11.927
- Court of Cassation, Civil Division 3, 6 March 1996, no. 94-13.212
EN 
FR