Defining the issues at stake in civil litigation: how do the parties set limits?

When you take legal action, or when you have to defend yourself, you have an objective, a precise expectation. You want the judge to rule on the specific problem that concerns you, and not on anything else. How can you ensure that the judicial debate remains focused on your issues? The answer lies in a fundamental concept of civil procedure: the "object of the dispute". This is an essential principle that gives the parties the power to define the ground on which the judge will have to rule.

This article explores how you, as a party to the proceedings, determine this famous "object of the dispute". We will look at exactly what it covers, how it is set at the start of the proceedings, how it may change during the course of the proceedings, and above all, why the judge is strictly bound to respect the framework you have defined.

The subject of the dispute: the founding power of the parties (operative principle)

Article 4 of the Code of Civil Procedure is very clear: "The subject matter of the dispute is determined by the respective claims of the parties".. This rule, which is known as the "dispositive principle", means that it is the claims and defences of those involved in the case that will shape the judge's decision.

What do we mean by 'claims'?

The "claims" are quite simply what each party is asking the judge to do in concrete terms. For the plaintiff (the person initiating the lawsuit), it is the result they wish to obtain: payment of a sum of money, annulment of a contract, recognition of a right, eviction of a tenant, and so on. As far as the defendant is concerned, the claims may be the outright rejection of the opposing claims, but they may also include claims of their own made in response (these are known as counterclaims, to which we shall return).

The subject matter of the dispute is therefore not defined solely by the claimant. It is a joint construction, resulting from the addition and confrontation of the claims of each party. It is the sum total of these claims that forms the perimeter of the case submitted to the court.

How do these claims determine the object?

Article 4 of the Code of Civil Procedure states that these claims are set out primarily in the document that initiates the proceedings (the summons or petition) and in the pleadings that are subsequently exchanged (the written documents in which each party develops its arguments and claims).

It has become very important, particularly in written proceedings with a lawyer (before the Court of First Instance and the Court of Appeal), to clearly formulate one's claims in the final part of the pleadings, known as the "dispositif". Articles 768 and 954 of the Code of Civil Procedure state that the court shall rule only on the claims set out in the operative part. Omitting a claim at this precise point may mean that the judge will simply not consider it.

The way in which claims are presented also depends on the nature of the proceedings. In written proceedings, only claims formulated in writing before the close of the hearing count. In oral proceedings (without mandatory representation by a lawyer), claims may be made orally at the hearing, but it is often advisable, for greater clarity and certainty, to confirm them in writing (in accordance with articles 446-1 and 446-2 of the Code of Civil Procedure).

A subject of dispute that can evolve: flexibility and limits

Although the subject matter of the dispute is fixed at the outset, it is not set in stone for the duration of the proceedings. French law allows a degree of flexibility, enabling the parties to adjust their claims along the way, but this is subject to restrictions.

At first instance: incidental claims

During the first instance proceedings (before the Court of First Instance, the Commercial Court, etc.), the parties may amend or supplement the initial subject matter of the dispute by means of "incidental claims" (provided for in Articles 63 to 70 of the Code of Civil Procedure). There are two main types of incidental claim:

• La additional request The original applicant adds a new application to their original application.
• La counterclaim The defendant not only defends himself but also makes a claim against the plaintiff.
• La request for intervention A third party applies to enter the proceedings, or a party applies to have a third party enter the proceedings.

However, to be admissible, an incidental application must "be linked to the original claims by a sufficient connection". (Article 4 of the Code of Civil Procedure). What is a "sufficient link"? The law does not define it precisely, leaving a margin of appreciation to the judge. The idea is to allow the debate to adapt (for example, if new relevant facts come to light), but to avoid the trial going off in all directions with claims that have no connection with the initial subject. You could compare this to building a house: you can add a room or change a partition (incidental claim with sufficient link), but you can't decide to build a swimming pool in the living room during construction (incidental claim without sufficient link).

On appeal: a highly nuanced principle of "prohibition" on new applications

When a case is appealed, the basic rule is stricter: article 564 of the Code of Civil Procedure lays down the principle that new claims are prohibited. The appeal is not supposed to be a new trial, but a review of the decision handed down at first instance. The appeal judge may, of his or her own motion, rule that a claim that he or she considers to be new is inadmissible.

However, there are a great many exceptions to this principle (listed in articles 565 and 566 of the Code of Civil Procedure), which considerably reduce its scope. In particular, claims that :

• Tends to the "same ends" as those at first instance, even if the legal basis is different (this notion of "same ends" is interpreted quite broadly).
• Are the accessory, consequence or necessary complement of the initial applications.
• Constitute a defence to the main action (counterclaim, claim for compensation).
• Aims to set aside opposing claims.
• Are justified by the revelation of a new fact or the intervention of a third party.

It is essential to distinguish between new request (which seeks a different result from that sought at first instance and which is in principle prohibited save in exceptional cases) of a new way (a different legal argument to support the same claim, which is always allowed on appeal).

Finally, a recent development (article 910-4 of the Code of Civil Procedure) requires the parties, in appeal proceedings with a lawyer, to set out all their claims in their first submissions. This tends to limit the possibility of changing the subject matter of the dispute. during the appeal proceedings themselvesThis reinforces a kind of temporal concentration of requests at this stage.

The judge bound by the subject-matter of the dispute: the principle of unavailability

Once the subject matter of the dispute has been defined (and possibly modified) by the parties, the court is strictly bound to respect it. This is the corollary of the power of the parties: the subject matter of the dispute is unavailable to the judge. This principle is clearly stated in article 5 of the Code of Civil Procedure: "The judge must rule on everything that is requested and only on what is requested"..

The fundamental rule and its prohibitions

This principle stems from the necessary neutrality of the judge. He must not take the place of the parties in defining what he will rule on. This obligation is reflected in a threefold prohibition:

• Rule infra petita (below what is requested) : The judge commits an omission to rule if he forgets to respond to one of the requests made. This omission can be remedied by a specific procedure (article 463 of the Code of Civil Procedure).
• Rule ultra petita (beyond what is requested) : The judge cannot award more than the party claimed. For example, awarding €10,000 in damages if the claim was limited to €8,000.
• Rule extra petita (other than what was requested) : The judge cannot award anything other than what was requested. For example, the court may order the termination of a contract when the party was only seeking damages for poor performance. Nor can he ignore the hierarchy of claims (principal and subsidiary) presented by a party.

Breach of these rules exposes the judge's decision to criticism, and even to cassation in the event of an appeal.

The nuances: when the judge adjusts without distorting

This principle of strict compliance with the subject matter of the dispute is, however, subject to a number of relaxations or nuances, which do not call into question its essence. The judge has some leeway to :

• Interpreting requests : If a party's claims are ambiguous, poorly formulated or visibly incorrect in their characterisation, the judge has a duty to ascertain the true intention of the claimant and to restore the exact scope of the claims (he may also ask the parties for explanations under Articles 8 and 13 of the Code of Civil Procedure).
• Ruling on implicit or virtual claims : Sometimes one claim logically contains another. For example, applying for the annulment of a sale necessarily implies, if the annulment is pronounced, restitution of the property and the price, even if this has not been explicitly requested (recently confirmed by Civ. 1ère, 24 January 2024, no. 21-20.693). Similarly, the judge may automatically award default interest on a principal judgment (articles 1231-6 and 1231-7 of the Civil Code) or rule on a claim for irreducible costs (article 700 of the Code of Civil Procedure) if it logically follows from the dispute.
• Choose the terms of the remedy or action : Where the aim of the claim is clear (for example, to obtain reparation for a loss), the court may have some freedom as to the means of achieving it (for example, choosing reparation in kind rather than compensation, or an annuity rather than a lump sum). Similarly, in summary proceedings (emergency proceedings), the judge hearing the case to put an end to a disturbance may choose the most appropriate measure to achieve that result, even if it is not exactly the one suggested by the plaintiff (articles 484 and 809 of the Code of Civil Procedure).

In all these cases, it is considered that the judge does not modify the object of the dispute itself (the aim pursued), but adapts the judicial response within the framework defined by the parties.

Exceptions provided for by law

Finally, there are rare cases where the law expressly authorises the judge to go beyond what is required of him, generally to protect interests considered to be higher:

• The best interests of the child : Following the annulment of an acknowledgement of paternity, the court may, of its own motion, determine the terms and conditions of the relationship between the child and the person who raised the child (article 337 of the Civil Code).
• Family interests : If an application for divorce is definitively rejected, the judge may nevertheless rule on certain points, such as contributions to the expenses of the marriage or parental authority (article 245 of the Civil Code).
• Contractual stability : To avoid over-rigid solutions, the law allows the judge to moderate a contractual penalty (awarding damages instead of termination if the non-performance is not serious enough - article 1228 of the Civil Code), to grant a debtor time to pay (grace period - article 1343-5 of the Civil Code), or to reduce a manifestly excessive penalty clause ex officio (article 1231-5 of the Civil Code).

These exceptions are strictly limited and do not call into question the general principle that the subject matter of the dispute belongs to the parties.

Correctly defining the subject of your claims and your defence from the outset is therefore a strategic step that is absolutely crucial to the outcome of your case. An error, an omission or imprecise wording can have a direct impact on what the judge may award you. The assistance of a competent lawyer is often essential in order to formulate your claims precisely, anticipate your opponent's demands and manage the possible development of the dispute. Our firm can help you clearly define the framework of your case and defend your interests in the best possible way. Contact us for a personalised assessment.

Sources

• Code of Civil Procedure: articles 4, 5, 8, 13, 57, 63 to 70, 446-1, 446-2, 463, 484, 564 to 567, 700, 768, 809, 910-4, 954.
• Civil Code: articles 245, 337, 1228, 1231-5, 1231-6, 1231-7, 1343-5.
• Case law of the Cour de cassation (in particular Civ. 1ère, 24 January 2024, no. 21-20.693 on the consequences of cancellation).