Pauline action

The action paulienne results from the provisions of article 1341-2 of the Civil Code, which states that "The creditor may also act in his own name to have acts performed by his debtor in fraud of his rights declared unenforceable against him, on condition that he establishes, in the case of an act for valuable consideration, that the third party contracting with him was aware of the fraud.

The criteria set out in the text are: the existence of an act performed by the debtor in fraud of the creditor's rights; and, in the case of an act for valuable consideration, knowledge of the fraud by the third party contracting with the debtor.

The action paulienne is traditionally reserved for creditors of a sum of money, since its purpose is to protect their right of general pledge. Its first criterion, the existence of an act by the debtor in fraud of the creditor's rights, presupposes an objective element and a subjective element.

The objective element of Pauline action

The objective element consists in the impoverishment of the debtor's assets, in order to create or aggravate his insolvency.

In this respect, acts involving the abandonment of property or the renunciation of a right are considered to be acts of impoverishment. There are examples in the case law of renunciation of an open succession (Cass. req., 2 May 1899: DP 1900, 1, p. 217. - Cass. 1re civ., 7 Nov. 1984: Bull. civ. I, no. 298; JCP G 1985, IV, 19 - Cass. 1re civ., 24 May 1993, no. 91-15.929), renunciation to act in reduction (Cass. 1re civ., 14 March 1984: Gaz. Pal. 1985, 1, p. 17, note A. Plancqueel), renunciation to act in court (CA Paris, 15th ch., 5 June 1981).

Security interests (e.g. mortgages) granted in favour of a competing creditor may also be challenged, even if they do not impoverish the creditor. per se the debtor, since the impoverishment does not arise from the security, but from the debt it secures (Cass. 3e civ., 15 Nov. 1977: Bull. civ. III, no. 384). However, the Court of Cassation requires proof of complicity on the part of the beneficiary creditor, on pain of inadmissibility of the paulian action (Cass. com., 9 Jan. 2001, no. 98-10.509: RJDA 2001, no. 635).

The doctrine also accepts the classification of an act of impoverishment when a new security interest is created over the property, provided however that it can be set up against the injured creditor (e.g. Cass. 1re civ., 18 Dec. 2014, no. 13-25.745, Published in the bulletin).

The subjective element of the Paulian action

The subjective element, secondly, arises from the intention, or at least the awareness, of the debtor to harm the creditor.

The second criterion, i.e. knowledge of the fraud by the third party, is assessed in the same way as the subjective criterion, i.e. in a very empirical way, by simply applying the principles governing the law of evidence:

• It is up to the plaintiff to prove the facts necessary for the success of his or her claim (article 9 of the Code of Civil Procedure),

• If it is impossible to provide proof, the burden of proof may be shifted from the plaintiff to the defendant (the principle of probatio diabolica or diabolical proof),

• A body of corroborating evidence may be considered as proof, provided that it is convincing to the judge, who will then decide the case according to his or her own conscience.

The action paulienne and the action for unenforceability of the limitation period

Article 2253 of the Civil Code states that "Creditors, or any other person having an interest in the running of the limitation period, may oppose or invoke it even if the debtor waives it.

The Court of Cassation, in a decision that is admittedly long-standing but has never been called into question, ruled that these provisions "are applicable only if the debtor's waiver is likely to create or increase his insolvency". (Soc. 9 Nov. 1950: Bull. civ. III, no. 830).

An action for the unenforceability of prescription thus has the taste, smell and colour of a Paulian action, because its purpose is to obtain the unenforceability of an act.

Academic writers do not necessarily describe the unenforceability of article 2253 of the Civil Code as an action paulienne. Some writers take the view that its operation requires the conditions for a paulian action to be met, which implies that it would constitute a form of paulian action; whereas other writers take the view that it is an autonomous action, distinct from a paulian action, with which it shares some, but not all, of the features (Benoît GRIMONPREZ, Prescription acquisitive, Répertoire de droit civil, Dalloz, § 153).

The criterion on which there is most debate is that of fraud. If this were to be disregarded, creditors would simply have to prove that their interests have been prejudiced by the act of renunciation of prescription in order to obtain its unenforceability. This would simplify the procedures for bringing such an action.

To the best of our knowledge, case law does not yet provide a clear-cut answer to this question.