Lapse in civil procedure: when your legal acts lose their effect

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Civil procedure is full of technical pitfalls that can wreck your legal efforts. One of the most notorious but formidable of these pitfalls is nullity. An act that has lapsed has serious consequences: the proceedings are terminated, rights are lost and it is impossible to take further action. This mechanism mainly sanctions procedural negligence.

What is nullity?

Lapse is the sanction imposed on a legal act that has been validly formed but which, after its creation, loses an element essential to its validity. As Professor Pierre Callé notes in his recent repertoire de procédure civile (July 2024), the act then becomes ineffective.

This concept differs fundamentally from other procedural sanctions:

• Nullity : punishes a defect existing at the time the deed is drawn up
• Resolution : annuls an act for non-performance
• Revocation puts an end to an act by voluntary decision
• Not enforceable prevents the deed from taking effect with regard to third parties

The Cour de cassation regularly clarifies this distinction. In a judgment of 12 November 1986 (Civ. 1re, no. 84-16.606, Bull. civ. I, no. 261), it pointed out that an act lapses when it loses its object or legal basis after it has been formed.

The purposes of lapsing in civil proceedings

There are two main reasons for this:

1. Penalising party inactivity
2. Preserving the effectiveness of the justice system

In a decision of 3 April 1987 (Ass. plén., no. 86-11.536), the Cour de cassation clarified this dual function. Lapse prevents a plaintiff from interrupting the limitation period indefinitely by successive writs of summons that are never served.

The Code of Civil Procedure systematically organises this mechanism. Article 406 provides that "the summons shall lapse in the cases and under the conditions determined by law". These conditions vary from jurisdiction to jurisdiction and from procedure to procedure.

The main cases of obsolescence in practice

1. Lapse of the writ of summons (article 754 CPC)

The summons becomes null and void if a copy is not delivered to the court registry at least fifteen days before the date of the hearing. This situation, like the situation where a summons lapses on appeal, is an example of the pitfalls associated with the lapse of documents initiating proceedings. This rule is designed to prevent "all-purpose summonses" - the practice of issuing summonses without actually taking the case to court.

A similar sanction applies before the Commercial Court (eight-day time limit, article 857 CPC).

2. Lapse for failure to appear

Article 468 of the Code of Civil Procedure penalises a plaintiff who fails to appear at a hearing without a legitimate reason. The defendant may then ask the judge to declare the summons null and void.

The Social Division of the Cour de cassation applies this rule strictly. In a judgment of 19 February 1992 (no. 89-44.145), it confirmed that this rule applies even before the tribunal de prud'hommes.

3. Lapse in appeal proceedings

On appeal, the lapse is sanctioned by a number of negligent acts:

• Failure to serve the statement of appeal on the respondent (article 902 CPC)
• Failure to submit pleadings to the court registry within the three-month time limit (article 908 CPC)
• Failure to notify the parties of the pleadings (article 911 CPC)

The Second Civil Chamber gave a firm reminder of these rules in a judgment of 4 November 2021 (no. 20-15.757). An appeal that does not expressly mention the application to set aside or set aside the judgment will lapse.

4. Lapse of enforcement measures

The precautionary measures lapse if the creditor does not initiate proceedings on the merits within one month of their enforcement (article R. 511-7 of the Code of Civil Enforcement Procedures).

Similarly, judicial authorisation to take a protective measure lapses if the measure is not implemented within three months (article R. 511-6 CPCE).

The devastating effects of obsolescence

Lapse produces radical effects:

• Retroactive cancellation the deed and all subsequent deeds
• Termination of proceedings if the summons lapses
• Loss of the effect of interrupting the limitation period (Ass. pl., 3 April 1987)

It is also crucial to understand when a court decision lapsesThis is an essential issue for the parties.

A writ of summons that has lapsed is deemed never to have existed. The prescription period therefore continues to run as if no act had been performed.

In some cases, such as appeals, the lapse may be definitive. Article 385 para. 2 of the CPC theoretically allows new proceedings to be brought after the summons has lapsed. However, on appeal, if the statement of claim lapses, the action is definitively inadmissible (Civ. 2e, 13 May 2015, no. 14-13.801).

The judge generally declares that the contract has lapsed without any discretionary power. Once the time limits have expired, the sanction is automatically imposed (Civ. 2e, 15 May 1974, no. 73-13.955). However, there are remedies and strategies for challenging a decision to terminate a contract.

The intervention of a procedural specialist is therefore essential to avoid these technical pitfalls. A lawyer who has mastered the subtleties of procedure will be able to prevent the risks of the agreement lapsing and, if necessary, take advantage of the remedies available against this sanction (declaration of lapse, appeal for withdrawal, referral).

Our firm assists litigants facing these procedural difficulties on a daily basis. Don't wait for your rights to be compromised by a lapse in proceedings. Contact us for a preventive analysis of your case.

Sources

• Code of Civil Procedure, articles 406, 468, 754, 902, 908, 911
• Code of civil enforcement procedures, articles R. 511-6 and R. 511-7
• Répertoire de procédure civile, "Caducité" by Pierre Callé, Professor at the University of Paris-Saclay, July 2024
• Cass. plenary session, 3 April 1987, no. 86-11.536, Bull. civ., no. 2
• Cass. Civ. 1re, 12 November 1986, no. 84-16.606, Bull. civ. I, no. 261
• Cass. Soc. 19 February 1992, no. 89-44.145, Bull. civ. V, no. 102
• Cass. Civ. 2e, 13 May 2015, no. 14-13.801, Bull. civ. II, no. 115
• Cass. Civ. 2e, 4 November 2021, no. 20-15.757
• Cass. civ. 2e, 15 May 1974, no. 73-13.955, Bull. civ. II, no. 165

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