Litigation can sometimes bring unpleasant surprises. People may discover that a decision has been made against them in their absence. But all is not lost: the opposition procedure offers a second chance. But it's important to know when this recourse is available.
The principle: the concept of default judgment
Opposition is strictly limited to judgments rendered by default. Article 571 of the Code of Civil Procedure defines opposition as a remedy "seeking to set aside a decision rendered by default".
According to article 473 of the Code of Civil Procedure, a judgment by default is characterised by two cumulative elements:
- The decision must be final (not subject to appeal)
- The summons was not issued to anyone
An adversarial decision or a decision deemed to be adversarial can never be opposed. In such cases, appeal remains the only ordinary means of redress available.
Where there is more than one defendant, the situation becomes more complicated. If only one defendant appears or has been summoned in person, the judgment will be deemed to be contradictory with regard to all the defaulting defendants (art. 474 CPC). If only one of the defendants is deemed to have been summoned, all the others may oppose the judgment.
The exact nature of the judgment
However, the court's decision is not always decisive.
It is mandatory to mention the appeal procedures in the judgment (art. 680 CPC). An error as to the remedies available does not start the appeal period (Civ. 2e, 22 May 2008, no. 06-14.665).
The incorrect classification of a judgment has no effect on the remedies actually available. Article 536 of the Code of Civil Procedure expressly states that "the incorrect classification of a judgment by the judges who handed it down has no effect on the right to appeal".
It's the actual nature of the decision that counts, no matter :
- Agreements between the parties (Poitiers, 19 March 1909)
- Classification used by the judge (Civ. 2e, 4 Oct. 1957)
It is therefore up to the litigant to check whether the decision is really a default judgment before lodging an objection.
The diversity of decisions involved
The opposition applies to any decision rendered by default, whatever its nature.
This includes
- Judgments and rulings
- Prescriptions
- Final, preliminary or mixed rulings
Summary orders may now be opposed. Article 490 of the Code of Civil Procedure, as amended by Decree no. 86-585 of 14 March 1986, provides for this possibility in respect of "an order made in the last instance by default".
This development is linked to the success of summary proceedings. Previously, article 490 of the Code of Civil Procedure precluded opposition to interim relief orders, as appeals were always possible.
On the other hand, the opposition procedure is incompatible with the non-contentious procedure. As this procedure is unilateral in nature, there is never a defaulting defendant.
The many legal exclusions
The legislator has provided for a number of exceptions to the principle that opposition may be lodged against default judgments.
Judgements excluded because of their origin
Objections may not be lodged against default decisions issued by :
- The Court of Cassation (art. 622 CPC)
- Arbitration courts (art. 1503 and 1506 CPC)
- Social Security courts (art. R. 142-25 CSS)
- The Pre-Trial Judge (art. 776 CPC)
- The expropriation judge (art. R. 13-47 Code de l'expropriation)
Judgements excluded due to their nature
Also excluded:
- Court of appeal decisions on challenges (art. 87 CPC)
- Decisions ordering investigative measures (art. 150 and 170 CPC)
- Decisions ruling on disputes relating to the seizure of real estate (art. R. 311-7 CPCE)
- Exequatur orders for arbitration awards (art. 1499 and 1524 CPC)
- Decisions to initiate collective proceedings (art. L. 661-1 and L. 661-2 Commercial Code)
For professional election disputes, the Court of Cassation recently specified that opposition is excluded (Soc. 14 Jan. 2014, no. 12-29.253).
This list of exclusions continues to grow with each reform, reducing the scope of opposition in favour of appeal or pourvoi en cassation.
Controlling the conditions under which an objection is admissible is a major challenge. A mistake in the appeal procedure can lead to foreclosure and an unfavourable decision becoming final.
The firm remains at your disposal to assess precisely the admissibility of an opposition in your situation and to assist you in this technical procedure. Do not hesitate to contact us before the expiry of the one-month period following notification of the judgment.
Sources
- Articles 571 to 578 of the Code of Civil Procedure
- Article 473 of the Code of Civil Procedure defining default judgment
- Article 474 of the Code of Civil Procedure on multiple defendants
- Article 490 of the Code of Civil Procedure on summary orders
- Article 536 of the Code of Civil Procedure on the incorrect classification of judgments
- Article 680 of the Code of Civil Procedure on the indication of appeal procedures
- Civ. 2e, 22 May 2008, no. 06-14.665 on the error in mentioning the means of appeal
- Civ. 2e, 4 October 1957 on the indifference of judicial characterisation
- Soc. 14 January 2014, no. 12-29.253 on the exclusion of opposition in professional election disputes
- Répertoire de procédure civile, "Opposition", by Marie-Emma Boursier, updated 2014
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