Judicial contracts: definition and legal nature

This hybrid legal form is fascinating because of its complexity. The judicial contract lives in a troubling in-between state: it is both agreement and judgement, agreement and decision.

Origin and definition of judicial contracts

Born of judicial practice, a judicial contract essentially refers to an agreement concluded between parties and recorded by a judge. This concept, first formulated by 19th century case law, has evolved towards a narrower meaning.

According to the Cornu Legal Vocabulary, a judicial contract is "a contract concluded by the parties before the judge during the trial of a contentious issue". It materialises the meeting of wills under the aegis of the judge, who records the agreement without settling the dispute.

History and development of the concept

The notion of a judicial contract has its roots in the Romanist conceptions of ancient law. It initially described the relationship between the litigants at the heart of the proceedings.

At the beginning of the twentieth century, legal scholars still analysed litigation as a succession of legal acts subject to conditions of contractual validity. The judge seemed "bound by the judicial contract" formed by the parties.

This contractual view of the relationship between proceedings has been abandoned by modern doctrine. As Solus and Perrot point out in their Traité de droit judiciaire privé, proceedings are not contractual but procedural, born of the prohibition on taking justice into one's own hands.

The modern judicial contract no longer characterises the procedure itself, but a specific act: the agreement of the parties recorded by the judge.

Essential features of a judicial contract

A judicial contract is based on two cumulative conditions:

1. A validly formed contract
2. The intervention of the judge who establishes the contract

The basis remains conventional. The judicial act comes into play only after the contract has been formed, as a receptacle for the parties' agreement.

This agreement must meet the classic requirements of Article 1128 of the Civil Code:

• Consent of the parties
• Capacity to contract
• Lawful and certain content

Case law specifies that the parties must have undertaken to do so in the same terms (Civ. 1re, 16 May 1990, no. 89-13.941). As the First Civil Chamber ruled on 25 June 2008, "a judicial contract is only formed if both parties undertake to do so on the same terms and their mutual undertaking is recorded by the court".

The place of judicial contracts in the legal system

The judicial contract occupies a singular position which distinguishes it from neighbouring mechanisms:

• Consent decree decision handed down after a sham trial, where the agreement is concealed from the judge
• Judgment of acknowledgement decision recording an agreement without jurisdictional effect
• Certification judicial approval, which implies a review of legality or even appropriateness

This intermediate situation raises the question of remedies. As the Court of Cassation has consistently held, a judicial contract does not have the force of res judicata (Civ. 3e, 10 July 1991, no. 90-11.847). It cannot be challenged by ordinary means of appeal, but only by an action for principal nullity.

Contractual and judicial duality

This hybrid nature gives the judicial contract a dual authority:

1. The authority of what has been agreed (article 1103 of the Civil Code) which is binding on the parties
2. Judicial authenticity conferred by the magistrate's intervention

This duality explains why the Cour de cassation regularly points out that "the provisions of the judgment that merely give notice are devoid of any legal value regardless of the prior agreement of the parties" (Civ. 1re, 25 June 2008, no. 07-10.511).

The judge does not exercise jurisdiction. His role is limited to noting the agreement of the parties, without exercising any real control of appropriateness. This particularity was clearly expressed by the 2nd Civil Chamber on 26 May 2011 (no. 06-19.527): the judge's review "can only concern the nature of the agreement submitted to him and its compliance with public policy and morality".

However, the judicial dimension offers a considerable advantage: it confers enforceability on the agreement, enabling it to be enforced without further proceedings.

The choice of a judicial contract often reveals a deliberate procedural strategy. For the parties, the challenge is to obtain an enforceable title without exposing themselves to the risk of a court decision.

In a recent case (Com. 5 January 2016, no. 14-11.126), the judges reiterated that judicial contracts remain essentially subject to ordinary contract law.

Sound advice can play a decisive role in navigating between these two issues. The firm remains at your disposal to analyse your situation and guide you towards the procedural solution best suited to your interests.

Sources

• Gaëlle DEHARO, "Judicial contract", Répertoire de procédure civile, Dalloz, September 2017.
• Court of Cassation, 1st Civil Division, 25 June 2008, no. 07-10.511, Bull. civ. I, no. 179
• Court of Cassation, 3rd Civil Division, 10 July 1991, no. 90-11.847, Bull. civ. III, no. 208
• Court of Cassation, 2nd Civil Division, 26 May 2011, no. 06-19.527
• Civil Code, articles 1103 and 1128
• Henri SOLUS and Roger PERROT, Traité de droit judiciaire privé, t. 3, Procédure de première instance, 1991, Sirey.
• Gérard CORNU (ed.), Vocabulaire juridique, 11th ed. 2016, PUF