You have lost your case. You hesitate to appeal. In the meantime, you receive an invitation to pay the fines. You comply without reservation. Did you know that this simple payment could permanently deprive you of your right to appeal? This is the dreaded effect of implied acquiescence. For an in-depth analysis of the irreversible consequences of acquiescence, discover their practical implications.
Acquiescence closes all avenues of appeal. For a full definition and the fundamental principles of acquiescence in civil law, discover the basics of this legal concept. It expresses submission to the heads of the judgment, as indicated in article 409 of the Code of Civil Procedure. This waiver may be express or implied, silent but definitive.
1. Legal acquiescence
Legal acquiescence is deduced from conduct. It does not require proof of an intention to acquiesce, which distinguishes it from other forms such asimplicit acquiescence, which requires an unequivocal expression of will. Three cumulative conditions must be met.
The fact of performance
An act of execution shows a willingness to enforce the judgment. In particular, the case law recognises :
- Voluntary payment of the sentence (Civ. 2e, 28 April 1986, Bull. civ. II, no. 64)
- The adoption of behaviour that reflects submission to the provisions of the judgement
- Formal acceptance of the measures ordered by the judgment
The Court of Cassation has thus ruled that when a party "accepts the judgment as rendered and waives the right to criticise the provision that has not fully satisfied his claims", he is acquiescing in the judgment (Civ. 2e, 3 September 2015, no. 14-17.766).
The payment of a simple deposit may sometimes suffice, but beware: voluntary execution of a single head of judgment does not imply acquiescence in the other independent heads.
The unenforceable nature of the judgment
Essential condition: the judgment must not be enforceable. Article 410 of the Code of Civil Procedure requires this. An enforceable judgment imposes enforcement on the loser. This legal constraint excludes acquiescence.
With the generalisation of provisional enforcement since the 2019 reform (art. 514 CPC), situations of legal acquiescence are becoming rarer.
However, even in the face of an enforceable judgment, spontaneous enforcement accompanied by particular circumstances may reveal a willingness to acquiesce. The Court of Cassation has accepted this when "the party sentenced by a provisionally enforceable judgment has paid, before taking any steps for collection and without reservation, the totality of the sentences and costs" (Com. 21 November 1951).
The absence of a reserve
The work must be carried out unreservedly to be considered as acquiescence (art. 410, para. 2 CPC). Clearly formulated reservations preclude acquiescence.
Precise wording such as "subject to the right to appeal" is sufficient to preserve this right (Civ. 2e, 9 March 1994, no. 92-19.583). On the other hand, vague reservations such as "subject to all reservations" may be deemed insufficient.
2. Voluntary acquiescence
Voluntary acquiescence requires a definite will to acquiesce. It can be inferred from conduct subsequent to the judgment.
Enforcement proceedings
A successful party may acquiesce in the judgment by pursuing its enforcement. This request for enforcement, without reservation, reveals a willingness to acquiesce.
In particular, the case law considers that recourse to the procedure for direct payment of maintenance reflects an intention to acquiesce in the judgment setting it (Civ. 2e, 22 June 1977, Bull. civ. II, no. 158).
Beware of the trap: acquiescence closes all avenues of appeal, except the right of cross-appeal if the opposing party lodges a main appeal. Article 409 of the Code of Civil Procedure provides for this exception.
Receipt of conviction amounts
Accepting payment of a judgment without reservation is equivalent to acquiescence (Civ. 2e, 17 June 1998, no. 96-15.211). However, certain situations remain ambiguous:
- Acceptance of maintenance payments (vital necessity)
- Receiving a cheque without cashing it
- Collection without further indication of intent
On the other hand, "giving its representative formal instructions to continue paying the compensation awarded and to collect the amount without reservation" constitutes unequivocal acquiescence (Civ. 2e, 12 October 1966).
Settlement agreements
Agreements made after the judgment may be deemed to constitute acquiescence. Thus, "a clause by which divorced spouses declare that they formally accept the preferential allocations prescribed by the divorce decree is deemed to constitute acquiescence" (Civ. 1re, 16 March 1971, Bull. civ. I, no. 80).
An agreement containing an undertaking to "withdraw from all legal actions, from all appeals against decisions previously rendered" constitutes an acquiescence (Civ. 1re, 19 March 2015, no. 12-24.274).
3. Strategies and precautions
To avoid involuntary acquiescence :
- Formulate precise reservations before any work is carried out
- Specify expressly that enforcement is compulsory
- If in doubt, seek advice quickly
For the winning party wishing to obtain an acquiescence :
- Applying for voluntary enforcement of an unenforceable judgment
- Request a written declaration that performance is free and unconditional
- Obtaining a judicial declaration of acquiescence
Please note: acquiescence only concerns the heads of the judgment and does not imply waiver of the right to request rectification of a material error (Civ. 2e, 7 July 2011, no. 10-21.061).
Acquiescence is a legal mechanism with far-reaching consequences that can transform a trivial act into a definitive renunciation. A seemingly insignificant gesture - such as unreservedly paying a sentence - can permanently lock the doors of the courtroom.
Our lawyers are experts in the subtleties of civil procedure and can guide you in safeguarding your rights. For expert advice on civil procedure, which is essential for securing your rights and avoiding the pitfalls of involuntary acquiescence, find out more about our procedural law services. For an analysis of the effects of a possible acquiescence in your situation, make an appointment with our firm. Sound advice can make all the difference between a closed door and a preserved legal remedy.
Sources
- Code of Civil Procedure, articles 408 to 410, 123, 125, 409 and 410
- Civ. 2e, 28 April 1986, Bull. civ. II, n°64
- Civ. 2e, 3 September 2015, no. 14-17.766
- Com. 21 November 1951, JCP A 1952, IV, 1790
- Civ. 2e, 9 March 1994, no. 92-19.583, Bull. civ. II, no. 86
- Civ. 2e, 22 June 1977, Bull. civ. II, n°158
- Civ. 2e, 17 June 1998, no. 96-15.211, Bull. civ. II, no. 191
- Civ. 1st, 16 March 1971, Bull. civ. I, n°80
- Civ. 1st, 19 March 2015, no. 12-24.274
- Civ. 2e, 7 July 2011, no. 10-21.061, Bull. civ. II, no. 152
- Y. Strickler, "Acquiescence", Répertoire de procédure civile, Dalloz, April 2021
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