The concept of a judicial contract lies at the crossroads of contract law and procedural law. This hybridity raises complex questions about the role of the judge. What is its nature? What are its limits?
Gaëlle Deharo, a professor at ESCE International Business School, sheds some valuable light on this subject. The author defines a judicial contract as "an agreement between the parties whose existence is established by a judge" (no. 11). This apparently simple definition conceals a more nuanced legal reality.
Section 1: Judicial contracts and unilateral procedural acts
From the outset, we should distinguish judicial contracts from unilateral procedural acts such as acquiescence or withdrawal.
Acquiescence is the act by which a litigant acknowledges the validity of his opponent's claims. Withdrawal is the act by which a party renounces his action. These two mechanisms constitute unilateral legal acts whose coexistence does not necessarily lead to the formation of a contract.
Case law has settled this question. In its judgment of 14 December 1992, the Cour de cassation clearly distinguished acquiescence from a judicial contract (Civ. 2e, 14 Dec. 1992, no. 91-15.231). It confirmed this position in a judgment of 18 November 1999 (Civ. 2e, 18 Nov. 1999, no. 97-15.921).
The difference is subtle but essential: whereas a judicial contract presupposes a prior agreement between the parties, acquiescence is a unilateral act binding only on its author.
Section 2: Judicial contracts and consent decrees
Another important distinction is that a judicial contract differs from a consent decree.
A consent judgment is a decision rendered following a mock trial. The parties feign a dispute in order to obtain a decision from the judge. This artifice allows the parties to obtain an act with the authority of res judicata.
As Gaëlle Deharo explains, "if there is indeed an agreement between the parties, it is hidden from the judge, who will rule as in the case of a genuine dispute, thus ruling out the qualification of a judicial contract" (no. 56).
The special feature of a consent decree is its legal force. Unlike a judicial contract, it constitutes a genuine judicial decision with the force of res judicata. This qualification opens up to the parties the traditional means of appeal against court decisions.
A decisive criterion distinguishes these two mechanisms: in a consent judgment, the judge constructs his own reasons, ignoring the secret agreement of the parties. In a judicial contract, the judge simply records the agreement without adding any further elements.
Section 3: Judicial contracts and judgments giving notice
Judicial contracts are often included in the category of judgments for a given act.
A judgement is a document in which the judge records the agreement of the parties without adding any personal elements. Its function is limited to recording the agreement and making it enforceable.
According to Héron and Le Bars (Droit judiciaire privé, 6th ed., 2015), "the judicial contract is a kind of given act" (no. 324). However, the converse is not true: not every judgment in a given act is a judicial contract. A given act may be a simple unilateral declaration without prior agreement.
A noteworthy particularity is that, when it constitutes a judicial contract, a judgment to give notice has no jurisdictional character and cannot be appealed (Civ. 1re, 28 Nov. 1973, D. 1974).
The practical consequences are significant. As Roger Perrot points out, "the decision does not create law" (RTD civ. 1997. 744). It does not have the force of res judicata and cannot be challenged by the means of appeal available against judgments.
Section 4: Judicial contract and probate
Probate is the judicial approval required by law for certain acts. It confers on the act the enforceability of a court decision.
The nature of homologation raises questions. Some texts refer to the non-contentious nature of homologation, in particular article 131-12 of the Code of Civil Procedure concerning homologation of the judicial mediation agreement.
This reference to non-contentious matters has been criticised by academic writers. Serge Guinchard speaks of an "oversight" and a reference made "wrongly" (L'ambition d'une justice civile rénovée, D. 1999, Chron. 65).
However, case law has specified that the judge's control over homologation is minimal. In its ruling of 26 May 2011, the Court of Cassation stated that this review "can only relate to the nature of the agreement submitted to it and its compliance with public policy and morality" (Civ. 2e, 26 May 2011, no. 06-19.527).
In practical terms, if the judge refuses homologation, the deed retains its contractual nature and continues to bind the parties. If he grants it, the deed acquires enforceability so that it can be enforced.
The distinction between a homologated judicial contract and a simple judicial contract lies mainly in the practical effects: homologation confers enforceability on the contract without altering its fundamentally contractual nature.
What remedies are available for court-ordered contracts?
This question perfectly illustrates the hybrid nature of the judicial contract.
The case law is clear: "judicial contracts are not real judgements" (Civ. 2e, 11 March 1999, no. 96-21.331). They are therefore not subject to appeal.
Judicial contracts are governed by the rules governing agreements. It can only be called into question by exercising the principal means of nullity, in particular those based on defects in consent (Civ. 1re, 13 June 1961; Civ. 2e, 20 Oct. 1982).
This solution applies even where the judicial contract takes the form of homologation. As the doctrine points out, "homologation does not convert the transaction into a judicial decision" (Chainais, Ferrand and Guinchard, Procédure civile, 33rd ed., 2016).
A lawyer is essential for navigating these murky legal waters. The nuances between these different mechanisms can have considerable consequences for the remedies available and ultimately for the protection of the parties' rights.
An experienced lawyer will be able to identify the exact classification of the act and determine the appropriate procedural strategy. He will also be able to anticipate the consequences of each classification on the remedies available and advise his client accordingly.
Sources
- Gaëlle DEHARO, "Judicial contract", Répertoire de procédure civile, Dalloz, September 2017.
- Civ. 2e, 14 Dec. 1992, no. 91-15.231, Bull. civ. II, no. 313
- Civ. 2e, 18 Nov. 1999, no. 97-15.921, RTD civ. 2000. 157, obs. R. Perrot
- Civ. 1re, 28 Nov. 1973, D. 1974. IR 41
- HÉRON and LE BARS, Droit judiciaire privé, 6th ed. 2015, LGDJ, no. 324
- PERROT, Le donné acte: notion et portée, RTD civ. 1997. 744
- GUINCHARD, L'ambition d'une justice civile rénovée, D. 1999. Chron. 65
- Civ. 2e, 26 May 2011, no. 06-19.527
- Civ. 2e, 11 March 1999, no. 96-21.331
- CHAINAIS, FERRAND and GUINCHARD, Civil Procedure, 33rd ed. 2016, Dalloz, no. 1056
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