In the meanders of judicial litigation, a hybrid mechanism has emerged: the judicial contract. Neither entirely conventional nor entirely judicial, it draws its strength from the will of the parties while benefiting from the anointing of the judge. Often misunderstood, this mechanism enables litigants to work together to find a solution to their dispute, under the watchful eye of the judge.
Judicial contracts are defined by two cumulative conditions: a contract validly formed between the parties, and the intervention of the judge who enshrines it. First and foremost, this mechanism is rooted in freedom of contract.
Section 1: Consent of the parties in a judicial contract
A judicial contract is formed by the meeting of an offer and an acceptance. The will of the parties is its essential foundation.
The Court of Cassation regularly points out that judicial contracts only exist if the parties have agreed to them on the same terms. A ruling of 25 June 2008 states that a judicial contract requires "full and prior agreement between the parties on all the elements of the contract" (Civ. 1re, 25 June 2008, no. 07-10.511).
This consent must be genuine and unadulterated, as required by ordinary contract law. An exchange of identical submissions by the parties may crystallise this agreement, which becomes a judicial contract when it is recorded by the judge (Civ. 3e, 29 March 1995, no. 93-12.023).
Consent may sometimes be tacit (Soc. 26 April 1966), but never equivocal (Civ. 1re, 3 June 1964). Judges must take into account any reservations expressed by the parties (Soc. 3 March 1988, no. 85-42.355).
A crucial point is that judicial contracts are only possible in matters that are freely available to the parties (Civ. 2e, 15 July 1981, no. 80-12.643). It must respect public policy, as emphasised in a judgment of 10 July 1895.
Section 2: Capacity of the parties to contract
Capacity is the second fundamental condition laid down by article 1128 of the Civil Code. It is presumed under article 1145 of the same Code.
In judicial contracts, this capacity must be assessed from two angles:
- Traditional contractual capacity
- The procedural capacity of the parties
Professor Muller defines the judicial contract as "a procedural act of a conventional nature revealing the parties' ability to dispose of their right to act" (Muller, Le contrat judiciaire en droit privé, thesis, Paris I, 1995).
However, there are limits to this ability. Judicial contracts cannot exist when the parties do not have the power to terminate the proceedings of their own free will, particularly when the judge's intervention is required by law.
The judge's office also limits the scope of the judicial contract, particularly when it concerns the organisation and operation of justice. But this limitation relates more to the subject matter of the contract than to the capacity of the parties.
Section 3: The lawful and certain content of judicial contracts
The content of the judicial contract has one particularity: its judicial dimension.
It may relate to the resolution of the dispute or to the organisation of the procedure. They reflect the diversity of procedural agreements. Professor Cadiet distinguishes two main categories:
- Processual disposition agreements" (agreement on points of law submitted to the judge)
- Agreements on the administration of proceedings (joint request for postponement of hearing)
This classification provides a better understanding of the judge's role. When the agreement relates to the right of action, it is binding on the judge because the parties are free to exercise this right. When it simply concerns procedural arrangements, the judge must consent to it because it affects the organisation of the public service of justice.
The purpose of a judicial contract is to give an agreed solution the force of an authentic instrument. In other words, the parties seek to obtain an enforceable instrument by agreement.
The relationship between contractual requirements and specific judicial features
Judicial contracts are at the crossroads of contract law and procedural law. It follows the contours of ordinary contract law while incorporating the specific features of the judicial context.
Certain rulings illustrate the primacy of the contractual basis. For example, the Cour de cassation has ruled that "the provision of the judgment that merely acknowledges the spouses' agreement is devoid of any legal value independently of that prior agreement" (Civ. 1re, 25 June 2008, no. 07-10.511).
The judge's intervention does not therefore create rights. It merely establishes the existence of the agreement and gives it an authenticity that will reinforce it. The conventional takes precedence over the judicial.
A judicial contract does not have the force of res judicata, but only the force of what has been agreed. It can only be challenged by contractual means of nullity, in particular those based on defects in consent (Civ. 2e, 20 October 1982, no. 81-14.296).
Are you considering a settlement in an ongoing dispute? Would you like your agreement to be sanctioned by the courts for greater certainty? Our firm can help you draft and present your legal agreement to the judge, so that your negotiated solution acquires full legal force.
Sources
- Civ. 1st, 25 June 2008, no. 07-10.511, RTD civ. 2008, p. 662, obs. J. Hauser
- Civ. 3e, 29 March 1995, no. 93-12.023
- Soc. 3 March 1988, no. 85-42.355
- Civ. 2e, 15 July 1981, no. 80-12.643, Gaz. Pal. 1982. 1. 12, note Viatte
- Civ. 1st, 3 June 1964, Bull. civ. I, no. 295
- Articles 1128, 1145, 1102 and 1103 of the Civil Code
- Deharo G., "Contrat judiciaire", Répertoire de procédure civile, September 2017, Dalloz
- Muller Y., "Le contrat judiciaire en droit privé", thesis, Paris I, 1995
- Cadiet L., "Les jeux du contrat et du procès: esquisses", Mélanges Farjat, 1999, Frison-Roche ed.
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