Acquiescence is a subtle legal mechanism that puts an end to litigation. To understand how it works definition and fundamental principlesFor more information, please consult our dedicated page. It implies that a party accepts either his opponent's claim (acquiescence to the claim) or the decision handed down by a judge (acquiescence to the judgment). It is not always easy to recognise, especially when it is implicit. This article examines the various manifestations of acquiescence and how the courts interpret it.
Express acquiescence
Forms and events
Express acquiescence is characterised by a clear intention on the part of the author. Article 410 of the Code of Civil Procedure does not impose any particular formalities. It can take various forms:
- An authenticated deed
- A deed under private signature
- A simple letter
- A statement at a hearing
What is essential is that the intention to acquiesce is manifest. In a judgment of 3 September 2015, the 2nd Civil Chamber of the Court of Cassation held that even submissions devoid of procedural effectiveness may be deemed to constitute acquiescence, provided that they contain a clear statement that the litigant accepts the judgment.
Proof and formalism
Proof of acquiescence is governed by the rules of ordinary law. If acquiescence is in writing, proof to the contrary by witnesses is limited to cases provided for by law (article 1341 of the Civil Code).
A delicate point concerns correspondence between lawyers. In its ruling of 4 February 2003, the Court of Cassation ruled that, under article 66-5 of the law of 31 December 1971, there is no exception to the principle of confidentiality of correspondence between lawyers. However, if this principle is applied too strictly, it may encourage disloyal behaviour.
The signature of the acquiescing party is required if the acquiescence is given by extrajudicial deed. The formality of the duplicate is not required - except in the exceptional case where the acquiescence is synallagmatic.
Duly noted and judged
When acquiescence occurs before the judge, it is prudent to ask the judge to acknowledge it. This avoids subsequent disputes.
However, a word of caution: in appeal proceedings with compulsory representation, the Cour de cassation has ruled that the parties' claims can only be set out in written submissions that have been duly filed. However, it has also recently accepted that an acquiescence may result from a written document issued by the party, even if such a document is not procedurally effective.
Implicit acquiescence
Identification criteria
Implied acquiescence must result from acts or facts demonstrating the party's unequivocal intention. For a detailed examination of conditions of validity of the acquiescenceFor more information, including the requirements for free and informed consent, see our article. Mere presumptions cannot be inferred. As stated in article 410 of the Code of Civil Procedure, unconditional compliance with an unenforceable judgment constitutes acquiescence.
Case law is strict on the "unequivocal" nature of the intention. For example, in a judgment of 25 May 1994, the 2nd Civil Chamber refused to deduce tacit acquiescence from the absence of any challenge during oral proceedings.
Similarly, unreserved participation in an investigation ordered by a court does not constitute acquiescence, according to a ruling of 22 May 1995.
The judge's discretion
The assessment of the facts or acts from which acquiescence is to be inferred is a matter for the judges of the court of first instance. They verify whether these acts express a willingness to acquiesce.
The Cour de cassation nevertheless reviews the legal nature of the facts invoked as constituting acquiescence. It looks to see whether the fact in question is legally relevant.
But the court may not of its own motion raise a plea of non-admissibility based on acquiescence without inviting the parties to present their observations on this plea, on pain of disregarding article 16 of the Code of Civil Procedure.
Significant case law
A few examples illustrate the complexity of assessing cases where theacquiescence is inferred legally or from a voluntary act :
- Voluntary payment of the amount of a judgment reflects an intention to acquiesce (Cour de cassation, 2nd civil division, 28 April 1986).
- Voluntary enforcement of an unenforceable judgment after an appeal has been lodged is tantamount to acquiescence (Cour de cassation, Social, 21 January 2014).
- On the other hand, a request to defer the payment of penalties for a non-suspensive judgment is not incompatible with the desire to appeal (Cour de cassation, 3rd civil, 27 April 2017).
- Receipt of the amount of the fines imposed on it, without reservation, constitutes acquiescence (Cour de cassation, 2nd civil division, 17 June 1998).
Warnings and practical advice
Once acquiescence has been given, it is generally irrevocable, with some exceptions. significant legal consequences. It takes :
- For acquiescence to the claim: recognition of the merits of the opposing claims and waiver of the action.
- For acquiescence in the judgment: submission to the heads of the judgment and waiver of the right to appeal.
An essential precaution: formulate clear reservations if you wish to enforce a judgment without acquiescing in it. Vague reservations ("without prejudice") may be insufficient, whereas "reservation of the right to appeal" is effective.
Where there is more than one head of judgment, acquiescence in one does not imply submission to the others, unless there is an indivisible link. Similarly, acquiescence given by one of the parties may not be set up against the others, unless indivisible.
Practical conclusion
Acquiescence, whether express or implied, has irreversible legal effects. Care must therefore be taken with regard to acts that could be interpreted as acquiescence. In case of doubt, to obtain theassistance of a lawyer specialising in civil procedure and a detailed analysis of your situation, consult our firm as soon as possible. Don't let an involuntary acquiescence compromise your right to challenge an unfavourable decision.
Sources
- Code of Civil Procedure, articles 408 to 410
- Court of Cassation, 2nd Civil Chamber, 3 September 2015, no. 14-17.766
- Court of Cassation, 1st Civil Division, 4 February 2003, No. 00-10.057
- Court of Cassation, 2nd Civil Division, 22 May 1995, No. 93-11.413
- Court of Cassation, 2nd Civil Division, 17 June 1998, No. 96-15.211
- Court of Cassation, 3rd Civil Chamber, 27 April 2017, no. 16-11.078
- Cour de cassation, Social, 21 January 2014, no. 12-18.427
- Y. Strickler, "Acquiescence", Répertoire de procédure civile, Dalloz, April 2021
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