In the world of procedural law, not all nullities are created equal. Unlike formal defects, which are subject to a relatively flexible regime, substantive defects benefit from special treatment that reflects their seriousness. This "nullity-sanction" applies to irregularities that affect the essential elements of the legal act.
Substantive irregularities under Article 117 of the Code of Civil Procedure
Article 117 of the Code of Civil Procedure (CPC) lists the substantive irregularities affecting the validity of a procedural document:
Lack of capacity to sue or be sued
This defect may concern both the capacity to enjoy and the capacity to exercise.
Capacity for use is the ability to hold the right to take legal action. Its absence is noted when the person does not legally exist. For example, the Court of Cassation ruled that a deed drawn up in the name of a deceased person was invalid on substantive grounds (Civ. 2e, 18 October 2018, no. 17-19.249).
Similarly, a procedural document filed by a company in the process of being formed or by an entity that has no legal personality, such as an indivision or a family, constitutes a substantive defect (Civ. 2e, 9 June 2011, no. 10-19.241).
As for capacity to exercise rights, this is said to be lacking when the person exists but is unable to exercise his rights himself. This is the case for an adoption petition submitted by an adult placed under guardianship (Civ. 1st, 4 June 2007, no. 05-20.243) or for an act performed by a company in receivership and not by its liquidator (Civ. 2nd, 6 December 2007, no. 06-19.268).
Lack of power of representation
Article 117 also covers two forms of lack of authority:
- Lack of power ad agendum: this is the absence of power to act on behalf of another. This is the case for an act performed by a chairman and CEO who has resigned (Civ. 2e, 13 October 1976, no. 75-13.244) or by a mayor without the authorisation of the municipal council (Civ. 1re, 3 February 2010, no. 08-21.433).
- Lack of authority ad litem: this refers to the absence of authority to represent in court. For example, the lack of special authority for an heir to represent his co-heirs in proceedings to contest lawyers' fees constitutes a substantive defect (Civ. 2e, 21 April 2005, no. 02-20.183).
Default or defect in consent
There are fewer cases where the lack or defect in the consent of the author of the deed is qualified as a substantive defect. However, we can cite the case of a summons issued "without the knowledge" of the landlords (Civ. 2e, 6 May 2004, no. 02-14.070).
The specific regime of substantive nullities
The system of substantive nullities is clearly distinct from that of formal nullities.
Failure to apply traditional adages
Two adages usually applicable to formal nullities are set aside:
- "No nullity without a text": according to article 119 of the CPC, nullity for a substantive defect may be declared "even if the nullity does not result from any express provision".
- "No nullity without a grievance": the claimant does not have to show that the irregularity has caused him or her harm. Nullity is automatic.
This severity is explained by the seriousness of the irregularity, which affects the very substance of the act.
Single condition: no regularisation
The only condition for nullity is that the deed must not have been regularised. Article 121 of the CPC states: "In cases where it is likely to be covered, nullity shall not be pronounced if its cause has disappeared by the time the court rules".
There are therefore two factors to consider:
- The defect must be reparable
- Regularisation must be carried out before the court gives its ruling
Repairable and irreparable substantive defects
Some defects are so serious that they cannot be rectified. Case law considers defects that amount to a total lack of will to be irreparable.
For example, an act performed by a non-existent person cannot be regularised. An action brought by a deceased person cannot be covered by the resumption of proceedings by the heirs (Civ. 3e, 5 October 2017, no. 16-21.499).
Similarly, the nullity of a summons issued to a non-existent legal entity cannot be covered by the intervention of the company that should have been summoned (Civ. 2e, 23 September 2010, no. 09-70.355).
Conversely, defects affecting the choice of an unauthorised representative, such as the appointment of a lawyer who is not registered with the bar in the court's jurisdiction, can be rectified (Civ. 2e, 5 May 2011, no. 10-14.066).
Procedure for raising the objection of nullity on grounds of substantive defect
Possibility of invoking the exception in any event
Unlike the plea of nullity based on a formal defect, article 118 of the CPC provides that pleas of nullity based on failure to comply with substantive rules "may be raised in any case".
Invalidity may therefore be raised at any stage of the proceedings, including on appeal (Civ. 2e, 9 January 2014, no. 12-28.399).
The judge may, however, order damages to be paid by the party who failed, with dilatory intent, to raise the objection earlier.
Special features of the pre-trial proceedings
Special rules apply to pre-trial proceedings before the court or the court of appeal.
Article 789 of the CPC requires procedural objections to be raised with the pre-trial judge. This provision seems to contradict article 118, which allows a plea to be raised "in any event".
This apparent contradiction raises practical difficulties that have not been definitively resolved by case law.
Variable powers of the judge
The judge's powers vary according to the nature of the substantive irregularity:
- Obligation to identify ex officio non-compliance with substantive public policy rules (art. 120, para. 1)
- Power to declare null and void ex officio on the grounds of lack of capacity to sue and be sued (art. 120, para. 2)
- Other substantive nullities cannot be raised ex officio, in particular lack of authority
For example, the court may not, of its own motion, find a substantive defect in the lawyer's lack of authority to sue (Civ. 1re, 19 September 2007, no. 06-17.408).
Knowledge of these procedural subtleties is crucial to an effective litigation strategy. An experienced lawyer will be able to identify substantive defects, assess whether they can be rectified and determine the right time to raise them. Our firm can help you analyse and optimise your procedures. If you would like any personalised advice or have any questions about the validity of your procedural documents, please contact our team.
Sources
- Code of civil procedure, articles 117 to 121
- Civ. 2e, 18 October 2018, no. 17-19.249
- Civ. 3e, 5 October 2017, no. 16-21.499
- Civ. 2e, 9 June 2011, no. 10-19.241
- Civ. 1st, 4 June 2007, no. 05-20.243
- Civ. 2e, 6 December 2007, no. 06-19.268
- Civ. 2e, 6 May 2004, no. 02-14.070
- Civ. 2e, 5 May 2011, no. 10-14.066
- Civ. 2e, 9 January 2014, no. 12-28.399
- Civ. 1st, 19 September 2007, no. 06-17.408
- Civ. 2e, 23 September 2010, no. 09-70.355
- L. Mayer, Actes du procès et théorie de l'acte juridique, 2009, ed. IJRS
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