Lapse of proceedings in France (caducite)

Lapse (caducite) is one of the most formidable sanctions in private law, and undoubtedly one of the least understood. Unlike nullity, which retroactively annuls an act that was defective from the outset, lapse strikes an act that was perfectly valid when made but which has subsequently been deprived of a constituent element. It is neither a penalty nor an invalidation: it is the finding that an act, stripped of an element essential to its existence, has ceased to produce effect. This mechanism traverses all areas of law, from contracts under the Civil Code to procedural acts under the Code of Civil Procedure. Understanding its two faces is the key to measuring the danger and, sometimes, obtaining relief.

Definition and rationale

The Ordinance of 10 February 2016 reforming contract law codified lapse at Articles 1186 and 1187 of the Civil Code. In procedural law, it appears in some twenty articles of the Code of Civil Procedure. A single thread connects them: lapse is the sanction striking an initially valid act whose essential element has disappeared after its formation.

Two purposes explain this sanction. The first is logical: what use is an act whose rationale rests on an element that no longer exists? The second is disciplinary: lapse combats party negligence, preventing litigants from multiplying acts never followed through and forcing them to observe their deadlines.

Lapse in contract law (Articles 1186 and 1187 Civil Code)

Disappearance of an essential element

Article 1186, paragraph 1, strikes the isolated contract. If an element the parties considered essential disappears after conclusion, the contract falls. Example: a promise of sale whose subject (the property) is destroyed before the option is exercised.

Interdependent contractual arrangements

Paragraphs 2 and 3 of Article 1186 codify the case law on multi-contract transactions. Where several contracts contribute to a single economic operation (financing + lease + services), the disappearance of one brings down the others – provided their performance was a determining condition of the parties’ consent. This is the mechanism that causes financial leasing arrangements to collapse when the principal contract is annulled.

Article 1187 specifies the effects: lapse terminates the contract and may give rise to restitution. Unlike nullity, lapse is not retroactive by principle: it extinguishes only future effects. But where performances already rendered are deprived of their cause by the lapse, restitution under Articles 1352 et seq. applies.

Lapse in civil procedure

In procedural law, lapse changes its rationale. It no longer sanctions the disappearance of a material element, but the litigant’s inaction. Article 406 provides the matrix: “The writ is lapsed in the cases and conditions determined by law.” The regime is dispersed across special provisions.

Lapse of the writ before the judicial tribunal

Article 754 (from the 2019 reform) requires the claimant to file a copy of the writ with the registry at least fifteen days before the hearing date. Failing this, the writ is lapsed. Before 2020, the filing had to occur “in due time”; today, the deadline is fixed and its breach triggers lapse automatically.

Lapse for failure to appear: Article 468

Article 468 strikes the claimant who, having seized the court, does not appear at the hearing without legitimate reason. The defendant may ask the court to declare the writ lapsed. Relief from lapse (releve de caducite) remains possible but strict: the claimant must apply to the registry within fifteen days and demonstrate legitimate impediment.

Lapse on appeal: the most feared regime

On appeal, lapse strikes hardest because it is automatic, raised of the court’s own motion, and deprives of any further recourse. Key deadlines:

• Article 902: the appellant must serve the appeal declaration on an unrepresented respondent within one month of receiving the registry’s notice, on pain of lapse.
• Article 906-1 (accelerated procedure): service within twenty days of the fixing notice.
• Article 908: the appellant must file submissions with the registry within three months of the appeal declaration.
• Article 911: submissions must be notified to opposing counsel.

Since 17 September 2020, the Cour de cassation has hardened the regime: lapse strikes even where the appellant’s submissions do not expressly seek the judgment’s reversal or annulment. Article 916 prohibits a party whose appeal declaration has lapsed from lodging a new principal appeal against the same judgment. Lapse on appeal is therefore definitive.

Lapse of judgments and orders

Article 478: the six-month trap

Article 478 provides that any judgment rendered by default or deemed adversarial is deemed never to have existed (non avenu) if not notified within six months from its date. The judgment’s authority of res judicata vanishes, its interruption of limitation is lost, and no enforcement act may be based on it. For the creditor who won but delayed service, this is catastrophic.

Lapse of the payment order (Article 1411)

The payment order procedure requires the creditor to serve the order within six months from its date. Failing this, the order is deemed never to have existed.

Lapse of interim measures

Judicial authorisation for interim measures becomes lapsed if the measure is not executed within three months (Art. R. 511-6 CPCE). If the creditor has not initiated proceedings on the merits, they must do so within one month of execution, on pain of lapse (Art. R. 511-7).

Lapse, nullity, termination, peremption: not to be confused

• Nullity sanctions an act defective from formation. Lapse strikes a valid act whose foundation has subsequently disappeared.
• Termination (resolution) destroys a contract for non-performance – it implies fault. Lapse implies no fault; it merely records the disappearance of an essential element.
• Peremption (Art. 386) sanctions prolonged inaction (two years). Lapse sanctions breach of a specific deadline.
• Time-bar (forclusion) extinguishes the right of action. Lapse extinguishes the act already performed.

Effects of lapse

In contract law, lapse is not retroactive by principle: it preserves past effects unless they are deprived of their cause.

In procedural law, lapse is annihilating: the lapsed act is deemed never to have existed. A lapsed writ never seized the court. A lapsed judgment never interrupted limitation. The Cour de cassation (Ass. plen., 3 April 1987, No. 86-11.536) held that a lapsed writ does not interrupt limitation – a severe but logical solution preventing indefinite prolongation of limitation periods through unenrolled writs.

Relief from lapse

The possibility of obtaining relief depends on the specific provision. In first instance (Article 468), the claimant may apply within fifteen days and demonstrate legitimate impediment. On appeal, case law is more restrictive. The conditions are always: (1) force majeure or legitimate impediment, (2) demonstrated within a very short timeframe after the lapse event.