Civil proceedings: who brings the facts, who tells the law? Roles shared between you and the judge

When you embark on a civil lawsuit, two essential elements come into play: the facts (what actually happened, the concrete events that gave rise to the dispute) and the right (all the legal rules that apply to this situation). The question then arises: who is responsible for presenting what to the judge? Is it up to you to provide everything, facts and legal rules? Or does the judge have a say in this?

The answer, as is often the case in law, is nuanced. Traditionally, it was said, "Give me the facts and I'll give you the law" (Da mihi factum, dabo tibi jus), suggesting a clear separation of roles, the reality of modern civil procedure is that of a shared responsibility. This article aims to clarify the complex division of tasks between the parties (you and your opponent) and the judge, both in terms of presenting the facts and applying the rules of law.

Determining the facts: your primary, but not exclusive, responsibility

As regards the facts of your case, the guiding principle gives you, as the party, the leading role. It is primarily up to you to "tell the story" to the judge.

Alleging the facts: the onus is on you

Article 6 of the Code of Civil Procedure is clear: "In support of their claims, the parties have the burden of alleging the facts on which they are based".. This means that you must set out to the judge all the events, all the concrete circumstances that justify your claim (or your defence). If the facts you present are insufficient to provide legal support for your claim, your application may be rejected out of hand. Omitting an essential fact can have serious consequences. It is a real "burden" on you.

In return for this charge, you also have the right to the right to choose the facts that you are putting forward. In principle, the judge cannot base his decision on facts that have not been introduced into the debate by one or other of the parties (article 7, paragraph 1 of the Code of Civil Procedure). He is prohibited from conducting his own investigations outside the proceedings or from using his personal knowledge of the case. The factual framework of the proceedings is therefore, initially, that which you define.

The judge's active (but complementary) role in the facts

However, the judge is not totally passive when faced with the facts. He has powers to complete or clarify the picture you present:

• Provoking explanations: If your allegations are unclear or seem incomplete, the judge may ask you to "invite the company to provide any explanations of fact that it deems necessary". (article 8 of the Code of Civil Procedure). He may ask you questions to help him understand the situation better.
• Use "weed" facts: The judge may also take into account facts that do appear in the file (for example, mentioned in a document provided) but that you have not specifically put forward in your arguments (article 7, paragraph 2). Be careful, however: if the judge intends to use such an "omitted" fact, it is imperative that he invites you to discuss it before basing his decision on it, by virtue of the adversarial principle (article 16 of the Code of Civil Procedure).
• Revealing facts through investigation : When the judge orders an investigative measure (expert report, enquiry, visit to the premises - articles 179 et seq.), new facts may come to light. The judge may then take them into consideration, always subject to allowing the parties to discuss them.

Proving the alleged facts: the burden of proof

Once the relevant facts have been alleged, you still have to prove them. This is the other aspect of your responsibility concerning the facts. Article 9 of the Code of Civil Procedure states that"it is for each party to prove in accordance with the law the facts necessary for the success of its claim".. This rule echoes the famous article 1353 of the Civil Code : "He who claims the performance of an obligation must prove it.

This is the famous burden of proof. If you are claiming something, it is up to you to prove the facts on which your claim is based. If your opponent claims to have been released from an obligation (for example, to have paid a debt), it is up to him to prove it. Failure to prove a fact that is essential to your argument exposes you directly to the risk have your application rejected.

However, proving is also a fundamental right. You must be able to present to the judge the evidence that supports your version of the facts, even if this right is restricted to protect, for example, the privacy of others or to ensure the fairness of the evidence.

The judge's growing powers of proof

Here again, the judge is playing an increasingly active role. While, in theory, he should only order an investigative measure (such as an expert report) if the party alleging a fact does not have sufficient evidence to prove it, and "in no case [...] to make up for the party's failure to act". (article 146 of the Code of Civil Procedure), practice is more nuanced.

Article 10 of the Code of Civil Procedure gives judges the power to "order ex officio all legally permissible investigative measures".. It can therefore decide itself to have facts verified, to hear witnesses or to appoint an expert if it considers this necessary to establish the truth.

This power is reinforced by the obligation on everyone (parties and third parties alike) to"to assist the judicial system in ascertaining the truth". (article 10 of the Civil Code and article 11 of the Code of Civil Procedure). The judge may thus order a party, or even a third party, to produce evidence in his possession.

In some cases, this power even becomes a homework for the judge. If the judge finds that a party is unable to prove its case and that an investigative measure is essential to shed light on the dispute, failure to order such a measure could be considered a denial of justice and punished as such (on the basis of Article 4 of the Civil Code).

Determining the law: the judge's preponderance qualified by your duties

While the burden of proof lies primarily with you, the situation is traditionally reversed when it comes to the law. It is up to the judge to know and apply the relevant rule of law.

The principle: the judge says the law ("Jura novit curia")

The saying Jura novit curia means "the judge knows the law". This is the basis of article 12, paragraph 1, of the Code of Civil Procedure: "The court shall decide the dispute in accordance with the rules of law applicable to it"..

This implies several things:

• The judge must apply the right rule: He must identify the relevant rule(s) of law (statute, regulation, settled case law, established custom, European Union law, European Convention on Human Rights, or even foreign law if the conflict of laws rules designate it) and apply them correctly to the proven facts.
• It does not rule in equity (in principle): Unless the law exceptionally authorises him to do so, or the parties have given him the task of ruling as "amiable compositeur" (see below), the judge cannot set aside a rule of law on the grounds that it would seem unfair in the case in question. He is the "mouth of the law".

The judge's specific legal responsibilities

Applying the law involves a number of intellectual operations for the judge:

• Qualify the facts : If you have set out the facts without giving them a precise legal qualification, the judge has the right to decide. homework to do so. This is the essential step in determining which rule of law applies.
• Re-characterise the facts if necessary: If the legal characterisation you have proposed for the facts is incorrect, the judge also has the right to homework correct it (article 12, paragraph 2). For example, if you refer to the "termination" of a contract when in fact it is legally a "nullity", the judge must rectify the situation. However, this re-characterisation cannot change the ultimate purpose of your claim (the subject matter of the dispute).
• Raising a plea in law of its own motion (changing the legal basis) : This is where the situation becomes more complex. Suppose you have based your claim on one legal ground (for example, liability in contract) when another would be more appropriate (for example, liability in tort). Is the judge obliged to raise the "correct" legal basis ex officio? The Court of Cassation has answered no in an important ruling (known as the "Dauvin" ruling, Assemblée Plénière, 21 December 2007). Unless there are specific rules, the judge only has the facultyHowever, you are not obliged to change the legal basis of your claim.
• Exceptions to the option: the obligation to raise a claim ex officio : This "faculty" is once again a obligation for the judge in certain specific cases, in particular when the rules in question are considered to be fundamental or of particularly important public policy. This is the case for :
  • Certain procedural rules (public policy inadmissibilities such as time limits for appeal - article 125 of the Code of Civil Procedure).
  • Mandatory European Union law (e.g. product liability).
  • The Badinter law on traffic accidents.
  • Consumer protection rules (particularly on unfair terms).

Increasing your legal duties

This rule, which means that in most cases the judge only has the power to determine the correct legal basis on his or her own initiative, has a direct and very important consequence for you: your own legal duties have increased considerably.

• Duty to state reasons in law : You must now state the legal grounds of your claim in the writ of summons (article 56) and in your pleadings (articles 768, 954), even if the direct sanction for the pleadings is limited.
• The principle of concentration of resources : Another major ruling by the Court of Cassation (known as the "Cesareo" ruling, Assemblée Plénière, 7 July 2006) set out a stringent requirement: it is up to you to present your case, at first instance, all of the legal foundations of the company. that you believe justifies your claim. If you forget a legal basis and your claim is rejected, you will no longer be able to bring a new action between the same parties, for the same thing, this time invoking the forgotten basis. The new claim would be deemed inadmissible on the grounds of res judicata (article 1355 of the Civil Code), because the Court considers that the "cause" of action is the same as long as the facts are identical.

The combination of these two rulings (Dauvin and Cesareo) creates a situation where it is in your interest to identify and present all possible legal arguments from the outset, as you will not necessarily be able to rely on the judge to raise of his or her own motion any argument that you may have omitted, and you will no longer be able to raise it in a new proceeding. The lawyer's responsibility to fully identify the relevant grounds has therefore become paramount.

Derogations: when you regain control of the law

Finally, there are two mechanisms by which the parties can voluntarily modify the judge's role with regard to the law, as provided for in Article 12 of the Code of Civil Procedure:

• Binding the judge by an agreement on the law (paragraph 3) : If the rights at stake are available (which excludes, for example, the status of persons), the parties may, by express agreement, decide to limit the debate to certain qualifications or specific points of law. The judge will then be bound by this agreement and will not be able to re-characterise or raise other arguments.
• Entrust the judge with the role of amiable compositeur (paragraph 4) : Again for available rights and by express agreement after the dispute has arisen, the parties may ask the judge to rule not strictly by applying the law, but in equity, as an amiable compositeur arbitrator would do. This option is very rarely used in practice before the state courts.

The division of roles between you and the judge as regards the facts and the law is therefore a complex balance, which has evolved a great deal towards greater responsibility on the part of the parties, particularly in the legal field. Omitting a relevant fact, failing to prove it, or overlooking the right legal basis can now definitively compromise your chances of success. Faced with these demands, a rigorous analysis of your case and a well-defined procedural strategy are more necessary than ever. Our firm's expertise is at your disposal to help you take this essential step. Do not hesitate to contact us for an in-depth analysis of your situation.

Sources

• Code of Civil Procedure: articles 4, 6, 7, 8, 9, 10, 11, 12, 16, 56, 120, 125, 146, 179, 472, 768, 954.
• Civil Code: articles 4, 10, 1353, 1355.
• Cour de cassation case law: Dauvin ruling (Ass. Plén., 21 December 2007, no. 06-11.343), Cesareo ruling (Ass. Plén., 7 July 2006, no. 04-10.672).
• Specific texts requiring the ex officio statement (e.g. Consumer Code, Law of 5 July 1985 on traffic accidents, European Union law).