The death of a party during the course of proceedings may result in the proceedings being interrupted (I), but they may be resumed at a later date in accordance with specific procedures (II).
I - Interruption of proceedings by death
If several criteria are met, the death of a party will result in the proceedings being terminated.
According to thearticle 370 of the code of civil procedure "From the date of notification to the other party, the proceedings are interrupted by:
- the death of a party where the action is transferable".
First, the share must be transferable. For example, the action will not be transferable in the case of the adoption of a child. It will always be transferable in the case of a property action.
Secondly, there will be no interruption of proceedings if the debates have already been opened before notification of the death (article 371 of the code of civil procedure). This is particularly the case when a death occurs between the hearing and the deliberation.
Finally, it should be noted that the proceedings are interrupted only in favour of the successors of the deceased, which means that the other parties cannot invoke this cause to escape the time limit for the lapse of proceedings (Court of Cassation - Second Civil Chamber, 22 March 2018 / no. 16-26.990).
Proceedings lapse if no action is taken for two years (article 386 of the code of civil procedure). This sanction may result in the action becoming time-barred.
The interrupted proceedings should therefore be resumed as soon as possible, subject to a certain number of steps being taken.
II - Resumption of proceedings
Under the terms of thearticle 373 of the code of civil procedure "The proceedings may be voluntarily resumed in the manner provided for the presentation of the defence.
In the absence of a voluntary repossession, it may be done by way of summons.
After the death of a party in the course of proceedings, the successors must be designated as heirs. A deed of notoriety will establish the right of succession of the heirs.
At a later stage, it will be necessary to ascertain whether the heirs wish to continue the proceedings. This is an essential step, as the way in which the proceedings are resumed will depend on their decision.
The Court of Cassation requires that all heirs be called upon to intervene in the case (Court of Cassation - Second Civil Division, 29 June 1988 / no. 87-15.171).
If all the parties agree to resume the proceedings, it will be sufficient to issue a summons to resume proceedings. Otherwise, a writ of compulsory intervention will have to be issued. If the parties fail to appear at the hearing, the procedure for resumption of proceedings is deemed to have been complied with.
Once these steps have been taken, the proceedings will resume where they left off (article 374 of the code of civil procedure).
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