In litigation, strategy often determines the outcome. Among procedural weapons, the defence on the merits occupies a singular place: it is the only means that directly attacks the opposing claim. Unlike pleas of inadmissibility or procedural objections, it aims to convince the judge that the claim is simply ill-founded. Its judicious use can save years of litigation.
Definition and characteristics of the defence on the merits
Article 71 of the Code of Civil Procedure defines a defence on the merits as a plea that seeks "to have the opponent's claim rejected as unjustified, after an examination of the merits of the case".
Its main characteristic? It attacks the claim head-on, by directly challenging the right invoked by the opponent. The defendant argues that the alleged right does not exist, no longer exists, does not yet exist, or does not have the scope claimed.
This definition may seem abstract. Here are some concrete examples:
- In a liability action, contesting the existence of damage
- In a contractual dispute, invoking the defence of non-performance
- In lease matters, contesting the amount of rent claimed
- For a debt, maintain that it has already been paid off
A Court of Cassation ruling of 24 January 1990 states that a plea that the legal basis chosen by the claimant is incorrect also constitutes a defence on the merits (Civ. 3e, 24 Jan. 1990, no. 88-15.554).
As the Court of Cassation recalled in a ruling of 7 June 2007 (Civ. 2e, 7 June 2007, no. 06-15.920), the simple fact of referring a case to the courts also constitutes a defence on the merits.
Directness: a decisive criterion for classification
This directness is the key element that distinguishes the defence on the merits from other defences. Dismissals and procedural objections do not directly contradict the claim, but attempt to set it aside by procedural means.
However, assessing this direct nature raises practical difficulties. For certain legal mechanisms such as prescription, the question can be tricky. Does prescription make the right disappear or does it only affect the legal action? The debate exists. Article 2219 of the Civil Code seems to support the first position, but case law has opted for the characterisation of "fin de non-recevoir".
More complex still, this directness often depends on the context. Invoking a court's lack of jurisdiction is normally a procedural objection. But in exequatur proceedings, challenging the international jurisdiction of the foreign court that has given judgment becomes a defence on the merits. Why should this be the case? Because it is a condition of the exequatur. The plea amounts to arguing that the application for exequatur is unfounded (Civ. 1re, 13 June 1978, D. 1979. 133).
Complex situations and blurred boundaries
Qualification can be tricky in a number of situations.
Challenging the admissibility of evidence
When a litigant challenges the admissibility of testimony or evidence that he claims to have obtained illegally, is this a defence on the merits or a procedural objection? Case law clearly favours a defence on the merits. A judgment of 8 June 1999 (Civ. 1re, no. 96-18.908) illustrates this perfectly: disputing the confidential nature of letters is not a procedural objection but a defence on the merits.
The same logic applies to the incident of forgery, which seeks to challenge literal evidence. According to a judgment of 24 October 2006 (Civ. 1re, no. 05-21.282), this is a defence on the merits.
Nullity of a legal act
A challenge to the validity of an act may constitute either a substantive defence or a procedural objection, depending on the nature of the act concerned.
If it concerns a procedural act, the argument will be classified as an exception. But if it concerns the legal act on which the claim is based, it will be a defence on the merits. The Court of Cassation reiterated this in a judgment of 11 March 1998 (Civ. 2e, no. 96-11.443).
Surprisingly, the nullity of a notice of termination in lease matters constitutes a procedural exception according to recent case law (Civ. 3e, 7 July 2016, no. 15-20.381), although this solution is questionable since the notice of termination is not an act of the judicial proceedings.
When a request becomes a defence
Paradoxical situation: a claim can sometimes be qualified as a defence on the merits. A writ of compulsory intervention, although technically an application, is considered to be a defence on the merits (Civ. 2e, 6 May 1999, no. 96-22.143).
Similarly, the guarantor's claims for forfeiture of the lender's rights are classified as defences on the merits (Civ. 1re, 31 Jan. 2018, no. 16-24.092).
With regard to partition, the Cour de cassation recently stated that "as the parties are respectively plaintiffs and defendants with regard to the establishment of assets and liabilities, any claim must be considered as a defence to an adverse claim" (Civ. 1re, 9 June 2022, no. 20-20.688).
These subtleties show the importance of strategic analysis in civil procedure. The classification of a plea as a defence on the merits is not just a theoretical question: it determines its legal regime, in particular the possibility of raising it in any event.
The services of a lawyer specialising in civil procedure can prove invaluable in determining the optimum strategy. Our firm offers a pre-litigation audit to identify the most appropriate defences for your situation. Don't wait for your opponent to gain the upper hand - contact us for an in-depth analysis of your case.
Sources
- Code of Civil Procedure, Article 71
- Civ. 3e, 24 Jan. 1990, no. 88-15.554, Bull. civ. III, no. 31
- Civ. 2e, 7 June 2007, no. 06-15.920, Bull. civ. II, no. 145
- Civil Code, article 2219
- Civ. 1re, 13 June 1978, D. 1979. 133
- Civ. 1st, 8 June 1999, no. 96-18.908, Bull. civ. I, no. 195
- Civ. 1st, 24 Oct. 2006, no. 05-21.282, Bull. civ. I, no. 434
- Civ. 2e, 11 March 1998, no. 96-11.443, Bull. civ. II, no. 77
- Civ. 3e, 7 July 2016, no. 15-20.381
- Civ. 2e, 6 May 1999, no. 96-22.143, Bull. civ. II, no. 82
- Civ. 1st, 31 Jan. 2018, no. 16-24.092, Bull. civ. I, no. 13
- Civ. 1st, 9 June 2022, no. 20-20.688, Bull. civ., p. 62
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