When a dispute is settled in court, the parties may choose to reach an agreement rather than wait for an imposed decision. This agreement mechanism, known as a judicial contract, has a hybrid nature. It combines contractual freedom and judicial authority.
But what is the real scope of this type of agreement? What powers does the judge have? And what legal force does it give the parties?
The judicial dimension of the judicial contract
Judicial contracts derive their originality from their dual nature. Initially conventional in its formation, it becomes judicial through the intervention of the judge.
Case law has defined this mechanism since the 19th century. According to the Cour de cassation, a judicial contract is "an agreement between the parties whose existence is established by the judge" (Civ. 8 July 1925, DP 1927. 1. 21).
This qualification involves two distinct phases:
- Formation of a valid contract between the parties
- The judge's intervention to record the agreement
Note: the judicial act is not a condition of validity of the contract but a condition of its classification as "judicial". Without it, the agreement remains valid but becomes merely conventional (Civ. 3e, 25 Jan. 1983, Bull. civ. III, no. 23).
The judge's limited role in the economy of the contract
In a judicial contract, the judge does not exercise his usual jurisdictional function. He does not settle the dispute. His role is limited to noting the pre-existing agreement between the parties.
This limitation on the judge's role is the essential feature of the mechanism. As the Court of Cassation has pointed out, "the court may not confer more rights on the parties than result from their agreement" (Civ. 1re, 13 May 1997, no. 95-18.195, RTD civ. 1997. 744).
Professor Hauser describes this intervention as a simple "judicial cloak" over the parties' agreement (RTD civ. 2008. 662). The judge does not review the appropriateness of the solution devised by the parties. His review is generally limited to:
- Compliance with public policy
- Absence of manifest fraud
Practical example: if two litigants agree on the amount of compensation, the judge simply records the agreement without assessing whether the sum is adequate.
The authority of the judicial contract
The authority of the judicial contract is its main practical advantage. It rests on two distinct foundations.
On the one hand, a judicial contract derives its force from the authority of what has been agreed. Article 1103 of the Civil Code is fully applicable: "Legally formed contracts take the place of law for those who have made them.
Secondly, the judge's intervention gives the contract a special authenticity. The decision confirming the parties' agreement gives it enforceability, transforming the agreement into a deed that can be enforced.
This judicial intervention has important effects:
- It authenticates the agreement of the parties
- It confers a date certain
- It allows recourse to compulsory enforcement measures
The Court of Cassation clarified this duality by stating that "a judicial contract is binding on the parties on the basis of the binding force of the contract and not on the authority of res judicata" (Req. 21 March 1877, DP 1878. 1. 211).
Comparison with res judicata
This approach clearly distinguishes a judicial contract from a conventional judicial decision.
Judicial contracts do not have the force of res judicata. This has major practical consequences, particularly in terms of legal remedies.
An ordinary judgement may be challenged by appeal or pourvoi en cassation. On the other hand, a judicial contract can only be challenged by:
- An action for nullity based on a defect in consent
- An action for rescission on the grounds of lesion (in the cases provided for by law)
- An action for rescission on grounds of non-performance
The Court of Cassation has confirmed this position: "The judicial contract does not have the authority of res judicata and does not follow the regime of jurisdictional decisions" (Soc. 3 March 1977, no. 76-11.000).
There is, however, one notable exception. The former article 2052 of the Civil Code gave the settlement "the authority of res judicata at last instance". This wording, which was criticised by legal scholars, was amended by Order no. 2016-131 of 10 February 2016. Article 2052 now simply states that "the settlement shall prevent the parties from instituting or continuing legal proceedings with the same object".
This legislative development confirms the fundamental distinction between contractual authority and jurisdictional authority.
The choice of a judicial contract is therefore not insignificant. It enhances the autonomy of the parties but profoundly alters the system of available remedies.
You need to understand these nuances before opting for this solution. An agreement that is poorly drafted or entered into without full knowledge of the issues may prove difficult to challenge at a later date.
Sources
- Civil Code, articles 1103 and 2052 (version resulting from order no. 2016-131 of 10 February 2016)
- Cour de cassation, Civ. 8 July 1925, DP 1927. 1. 21
- Court of Cassation, Civ. 3e, 25 January 1983, Bull. civ. III, no. 23
- Cour de cassation, Civ. 1re, 13 May 1997, no. 95-18.195, RTD civ. 1997. 744
- Cour de cassation, Req. 21 March 1877, DP 1878. 1. 211
- Court of Cassation, Soc. 3 March 1977, no. 76-11.000
- HAUSER J., "Des conventions dans le divorce et du contrat judiciaire", RTD civ. 2008. 662
- DEHARO G., "Contrat judiciaire", Répertoire de procédure civile, 2017, Dalloz
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