Nullity, non-existence and inadmissibility: the infernal trio of procedural sanctions

In the labyrinth of procedural sanctions, three concepts stand out for their complexity and implications: nullity, non-existence and inadmissibility. These sanctions act like swords of Damocles hanging over procedural documents. Mastering them is essential for any practitioner.

Non-existence in civil procedure: a theory in decline

Notion of non-existence and its distinction from nullity

Non-existence is not a sanction but a condition of an act that does not have the essential elements to qualify as a juridical act. Unlike nullity, which affects an irregular legal act, non-existence concerns an act that is so defective that it has never had any legal existence.

This theoretical distinction is crucial: nullity presupposes that an act exists but is vitiated, whereas non-existence reflects the very absence of an act. Non-existence therefore escapes the regime of nullities, which makes it particularly attractive as a means of circumventing the restrictive conditions of nullity for formal defects.

As Article 114 of the Code of Civil Procedure states: "The nullity of procedural acts may be invoked as and when they are performed; but it is covered if the person invoking it has, subsequent to the act criticised, put forward defences on the merits or raised a plea of inadmissibility without raising the nullity.

Applications prior to the mixed chamber judgment of 7 July 2006

Before 2006, case law frequently resorted to the theory of non-existence. It refused to apply the nullity regime to seriously defective procedural documents. The following were considered to be non-existent:

• The declaration of a call made by telephone (Soc. 8 July 1992, no. 89-40.559)
• Submissions not signed by the lawyer (Civ. 2e, 13 January 2000, no. 98-12.204)
• A summons indicating a hearing date corresponding to a public holiday (Com. 4 January 2005, no. 03-16.486)

These acts were considered to be mere drafts, pure appearances with no legal existence.

Near extinction and sporadic resurgence since 2006

The mixed chamber judgment of 7 July 2006 (no. 03-20.026) marked a spectacular end to this construction of the law. In this ruling, the Court of Cassation affirmed that :

"Regardless of the seriousness of the alleged irregularities, the validity of a procedural document is affected only by formal defects that give cause for complaint or by the substantive irregularities listed exhaustively in Article 117 of the New Code of Civil Procedure.

This decision has consigned the theory of non-existence to the dustbin... almost. A few sporadic resurgences can be observed. For example, in a judgment of 24 September 2015 (no. 13-28.017), the Court of Cassation recognised that there was indeed an "absence of pleadings delivered to the registry" (and not nullity) when these were transmitted by RPVA when this method of transmission was not yet authorised.

Similarly, a judgment of 2 July 2020 (no. 19-12.752) states that "service of a document in accordance with article 659 of the Code of Civil Procedure at a place other than the last known address does not constitute service".which evokes the theory of non-existence.

Inadmissibility for procedural irregularities

Irreceivabilities expressly provided for by law

Inadmissibility is an autonomous sanction that directly affects the claim and not the act. Some are explicitly provided for by the legislator.

Article 122 of the Code of Civil Procedure states that : "A plea of inadmissibility is any ground that seeks to declare an adversary's claim inadmissible, without examination of the merits, for lack of right to sue, such as lack of standing, lack of interest, prescription, time limit or res judicata.

Legal inadmissibilities include the following:

• Failure to give reasons for an appeal against a judgment on jurisdiction (article 85 CPC)
• Absence of mandatory information in the statement of defence (article 59 CPC)
• Failure to notify a brief prior to referral to the commercial rents judge (article R.145-27 of the French Commercial Code)

Irreceivabilities of praetorian origin

The courts have extended the scope of inadmissibility to situations not provided for in the legislation. These "artificial grounds for dismissal" make it possible to escape the nullity regime.

Case law thus qualifies as inadmissible :

• An act performed by a deceased person (Civ. 1st, 28 October 2009, no. 08-18.053)
• Deed directed against a non-existent company (Com. 7 July 2009, no. 08-19.827)
• Appeal lodged with the registry of the court that handed down the judgment and not with the registry of the court of appeal (Civ. 2e, 17 December 2009, no. 07-44.302)

As summarised in an oft-quoted judgment (Civ. 2e, 6 January 2011, no. 09-72.506): "The failure to refer a case to the court in due form does not constitute a formal defect, but rather a ground for dismissal, and the person invoking it does not have to justify any grievance..

The challenges of prescription qualification

The classification adopted has decisive consequences, particularly in terms of prescription. Since the law of 17 June 2008, articles 2241 and 2243 of the Civil Code have provided for differentiated treatment:

• A juridical act which has been annulled for a defect of form or substance retains its effect of interrupting prescription (article 2241, paragraph 2).
• A document declared inadmissible loses its interruptive effect (article 2243)

This distinction has major practical implications. A litigant faced with a procedure tainted by irregularity will find his situation radically different depending on the classification adopted.

Specific treatment of certain procedural irregularities

Failure to bring a case before the courts

The failure to make a regular referral is a perfect illustration of the blurred boundaries between these sanctions. Case law has made subtle distinctions:

• The use of a formal medium other than that required by law (simple letter instead of a registered letter, summons instead of a summons by the registry) is sanctioned by inadmissibility.
• Delivery to the court registry of appeal submissions by AVR when this method of transmission was not authorised is treated as a non-existence of the document.
• Erroneous indication of a hearing date in a summons is now a formal defect

These distinctions confirm Loïc Cadiet's analysis, which evokes a veritable "keyboard of procedural sanctions", the articulation of which is sometimes debatable.

Infringements of due process

Violations of the adversarial principle are treated differently depending on their seriousness and context:

• Failure to provide a party with additional information sent to the expert is qualified as a formal defect (Civ. 1re, 30 April 2014, no. 13-13.579)
• Failure to provide a copy of the application and the order on the application is treated as a substantive defect (Civ. 2e, 1 September 2016, no. 15-23.326)
• Failure to summon the director of a company in compulsory liquidation results in inadmissibility (Com. 12 January 2016, no. 13-24.211)

Lack of legal personality

Acts performed by a non-existent person (deceased, dissolved company) or directed against such a person pose particular difficulties. Case law oscillates between several qualifications:

• Irreparable substantive defect: the act performed by a deceased person (Civ. 2e, 18 October 2018, no. 17-19.249)
• Fin de non-recevoir: action brought by a deceased person (Civ. 1re, 28 October 2009, no. 08-18.053)
• Inexistence: a summons addressed to a foreign State but served on a consulate without legal personality (Toulouse, 9 May 2006)

This oscillation in case law reflects the difficulty of maintaining watertight categories between these procedural sanctions.

Finally, the boundaries between nullity, non-existence and inadmissibility remain porous despite efforts by the courts to clarify them. The practical application of these sanctions often depends on practical rather than theoretical considerations. Only a seasoned professional can navigate these procedural pitfalls, which continually threaten the validity of pleadings.

Do not hesitate to consult us to assess the regularity of your procedural acts. Our firm can help you prevent and deal with procedural incidents before they become fatal to your claims.

Sources

• Code of Civil Procedure, articles 112 to 121 (nullity regime)
• Civil Code, articles 2241 to 2243 (interruption of prescription)
• Cass. mixed court, 7 July 2006, no. 03-20.026
• Civ. 2e, 24 September 2015, no. 13-28.017
• Civ. 2nd, 2 July 2020, no. 19-12.752
• Civ. 2e, 6 January 2011, no. 09-72.506
• Civ. 1st, 30 April 2014, no. 13-13.579
• Civ. 2e, 1 September 2016, no. 15-23.326
• Civ. 2e, 18 October 2018, no. 17-19.249