Conditions of validity of acquiescence

In the legal world, acquiescence is an important act with significant legal consequences. Whether acquiescing to a claim or to a judgment, this unilateral legal act is a way of agreeing to opposing claims or submitting to a court decision. For a full understanding of acquiescence and its implications, click here. fundamental principlesSee our article on this subject. However, to be effective, acquiescence must meet strict conditions of validity. Here is a look at the requirements imposed by law and case law.

Consent in acquiescence

Acquiescence rests essentially on the will of its author. This will must be free of defects.

Free and informed consent

To be valid, acquiescence requires free and informed consent. The Code of Civil Procedure does not expressly state this, but case law consistently affirms it. The Court of Cassation has repeatedly stated that acquiescence must result from acts or facts that clearly and unequivocally demonstrate the intention of the party concerned. To find out more about the recognition ofexpress and implicit consentRead our article.

The Second Civil Chamber recently reaffirmed this fundamental principle in a judgment of 23 March 2023: "The Second Civil Chamber has not yet confirmed this principle. acquiescence may be express or implied, but it must always be certain "(Civ. 2e, 23 March 2023, no. 21-20.289).

This certainty in the expression of consent is even more important when acquiescence is tacit. In this case, the judges look to see whether the facts relied on unequivocally express the will to acquiesce.

Defects in consent

Like any legal act, acquiescence may be vitiated by defects in consent:

1. The error (of fact or of law) may invalidate the acquiescence. For example, an acquiescence given by a party who mistakenly believed that the judgment was not subject to appeal may be set aside.
2. FraudThe acquiescence is also null and void in the event of fraudulent manoeuvres to obtain consent.
3. ViolenceThe acquiescence obtained under duress is null and void.

Note that since the 2016 reform of contract law, abuse of the state of dependence (Article 1143 of the Civil Code) also constitutes a defect in consent applicable to acquiescence.

The burden of proving the defect lies with the party claiming it. This can be difficult to prove, particularly when the party was assisted by counsel at the time of acquiescence.

Conditions and reservations

Acquiescence may be subject to conditions or reservations.

Conditions suspend the effectiveness of acquiescence until a future and uncertain event occurs. In such cases, acquiescence becomes conditional and its unilateral nature is transformed. It then requires the acceptance of the opposing party, creating a true judicial contract.

Reservations are used to restrict the scope of acquiescence. For example, a party may acquiesce to certain points in a judgment while reserving the right to contest the others. These reservations must be sufficiently precise to avoid any ambiguity.

Capacity and power to acquiesce

As acquiescence entails the renunciation of a right, only persons with the capacity to dispose of the right in question may validly acquiesce.

Legal incapacity

• For the adults under guardianshipHowever, only the guardian may acquiesce, and only with the authorisation of the guardianship judge (article 475 of the Civil Code).
• For the adults under guardianshipthe assistance of the curator is required (article 467 of the Civil Code).
• For the adults under court protectionIn the case of a contract of sale, they retain the exercise of their rights and may therefore acquiesce (article 435 of the Civil Code), subject to a possible action for rescission on the grounds of lesion.
• In divorce proceedings, article 1120 of the Code of Civil Procedure states that acquiescence in a divorce decree is possible, except for protected adults.

Agents and legal representatives

• The conventional agents must have a special mandate to acquiesce on behalf of their principal.
• The agents ad litem (particularly lawyers) benefit from a legal presumption that they can acquiesce on behalf of their client (article 417 of the Code of Civil Procedure). This presumption is irrebuttable in relation to the judge and the opposing party.
• L'legal administrator of the property of a minor may only acquiesce with the authorisation of the guardianship judge.

Public administrations

Public authorities may consent through their legal representative. However, specific rules may apply depending on the type of authority concerned.

Special cases and recent case law

1. Payment of costs and expenses Until 1994, unconditional payment of costs constituted acquiescence in the judgment. Since two rulings of 23 November 1994, the Court of Cassation has reversed its position: articles 410 and 558 of the Code of Civil Procedure are no longer applicable in the event of enforcement of an order to pay costs or sums awarded under article 700.
2. Taking part in an investigative measure Case law has also evolved. Henceforth, mere participation in an investigative measure ordered by a judgment does not constitute acquiescence (Civ. 2e, 22 May 1995, no. 93-11.413).
3. Enforcement of an enforceable judgment It cannot constitute acquiescence, since the party is obliged to do so. For a more in-depth analysis of the situations in which voluntary execution may constitute acquiescence, see our article onlegal and voluntary compliance. With the generalisation of provisional enforcement as of the 2019 reform, the number of cases of acquiescence through voluntary enforcement is considerably reduced.
4. Partial enforcement of a judgment It entails acquiescence only for the heads performed, if they are distinct and independent from the others.

As a recent example, in a judgment of 11 July 2024, the Third Civil Chamber of the Court of Cassation ruled that ". the payment made by the notary, in the absence of a legal challenge by the seller co-owner, as a result of the objection made by the syndicate of co-owners, cannot be construed as acquiescence, as this objection is neither a legal claim nor a judgment "(Civ. 3e, 11 July 2024, no. 23-11.700).

Practical tips for securing acquiescence

The validity of an acquiescence can be tricky to establish, particularly in the case of tacit acquiescence. To understand the effects and practical consequences of acquiescenceRead our dedicated article. For this reason, we recommend that you :

• Formalise any acquiescence in writing, preferably by notarial deed or declaration to the court registry
• Clearly specify the scope of the acquiescence, especially where there are multiple heads of claim
• Formulate express reservations if the acquiescence relates only to certain points of the dispute
• Check the legal capacity of the parties to avoid any subsequent disputes

These simple precautions can prevent many disputes. For personalised legal assistance in civil procedureA specialised lawyer will be able to guide you in drafting a deed of acquiescence or analysing an acquiescence that may be opposed to you.

Are you unsure about the validity of an acquiescence or do you wish to give one in complete legal certainty? Our firm is at your disposal to examine your situation and advise you on the best strategy to adopt. Contact us for an initial meeting to assess your case.

Sources

• Code of Civil Procedure, articles 408 to 410, 417
• Civil Code, articles 435, 467, 475, 1143
• Civ. 2e, 23 March 2023, no. 21-20.289
• Civ. 2e, 22 May 1995, no. 93-11.413 (participation in an investigative measure)
• Civ. 2e, 23 November 1994, no. 92-18.354 and 92-21.071 (payment of costs)
• Civ. 3e, 11 July 2024, no. 23-11.700
• Yves STRICKLER, Répertoire de procédure civile, "Acquiescence", Dalloz, April 2021