The system of nullities is one of the fundamental pillars of civil procedure. Understanding the consequences of an annulled procedural document is essential for all litigants. What happens to an act that has been declared null and void? Does annulment systematically lead to the collapse of the entire procedure?
Retroactive annulment: principle and nuances
The Latin adage leaves no room for doubt: " quod nullum est, nullum producit efficium "The annulled act is deemed never to have existed. An act that is null and void is deemed never to have existed. This principle underpins the entire system of nullities set out in articles 112 to 121 of the Code of Civil Procedure.
Case law has nevertheless developed pragmatic solutions to avoid the radical consequences that would result from a literal application of this principle. The Court of Cassation, guardian of the procedural balance, has thus set limits to total annulment. In two rulings of the 2nd Civil Chamber (7 June 2012, no. 11-30.272 and 2 July 2009, no. 08-11.599), it confirmed that annulment does not always entail the disappearance of all the effects produced by the act.
This development in case law reflects the desire of judges to preserve the effectiveness of civil litigation.
The limits to total annihilation
The cancelled expert report: a persistent source of information
A surprising solution concerns cancelled expert reports. According to established case law (Com. 6 October 2009, no. 08-15.154), the judge retains the right to draw "information" from them. He may therefore use the factual elements contained in a void expert report, provided that these elements are corroborated by other evidence.
However, the judge cannot base his decision solely on this invalid report, as stated in a decision of the 1st Civil Chamber dated 5 December 1973 (no. 72-12.577).
As the expert's report is not a legal document in the strict sense of the term, but rather a piece of information, its factual findings partially survive nullity.
Interruptive effect preserved: the decisive contribution of the 2008 Act
The Act of 17 June 2008 reforming the statute of limitations marked a major break. Prior to this reform, the former article 2247 of the Civil Code provided that the annulment of a procedural act annihilated its interruptive effect on limitation periods.
Article 2241 paragraph 2 of the Civil Code now expressly states:
"The interruption resulting from the application to the court takes effect [...] when the act of bringing the action before the court is annulled by reason of a procedural defect.
This provision applies to both formal and substantive defects, as confirmed by the 3rd Civil Chamber of the Court of Cassation in its ruling of 11 March 2015 (no. 14-15.198).
The interruption of the time limits for the lapse of proceedings and the time limit in article 528-1 of the Code of Civil Procedure is also preserved in the event of an annulment.
The variable extent of annihilation
Between the parties: a cancellation with variable geometry
Does annulment apply to all parties? The answer requires some distinctions.
In the event of a deed involving two claimants, one of whom is deceased, the nullity only affects the referral originating from the deceased (Civ. 1ère, 16 December 2015, no. 15-14.273). The negotium remains intact.
In the case of expert reports, the issue becomes more complex. According to a ruling of 15 April 2010 (no. 09-10.239), a report that has been annulled on the grounds that it violates the adversarial principle becomes unusable with regard to all parties, even those who have not raised the issue of nullity.
The domino effect on subsequent acts
According to a classic principle, the nullity of an act entails the nullity of the acts that necessarily depend on it.
The typical example concerns the document initiating proceedings. Its nullity entails the nullity of the entire subsequent procedure, as illustrated by a judgment of the 2nd Civil Chamber of 19 February 2015 (no. 14-10.622), which, by annulling a summons to seize property, invalidated all subsequent acts up to the auction.
On the other hand, this contagion is limited to directly dependent acts. Thus, the nullity of a summons for summary proceedings does not entail the nullity of the summons on the merits (Civ. 2ème, 11 October 1989, no. 88-10.881).
This delicate mechanism requires careful examination of the links between procedural acts. A lawyer will be able to determine whether the annulment of an act threatens your entire procedural strategy or, on the contrary, makes it possible to preserve certain gains.
Because the nullity of a procedural act is a minefield where theoretical principles and pragmatic applications intermingle, our procedural lawyers can analyse your case and identify the risks or opportunities associated with a possible nullity. Do not hesitate to contact us for an in-depth consultation.
Sources
- Code of civil procedure, articles 112 to 121
- Civil Code, article 2241 paragraph 2 (from law no. 2008-561 of 17 June 2008)
- Civ. 2nd, 7 June 2012, no. 11-30.272
- Civ. 1st, 16 December 2015, no. 15-14.273
- Civ. 2nd, 19 February 2015, no. 14-10.622
- Civ. 3rd, 11 March 2015, no. 14-15.198
- Com. 6 October 2009, no. 08-15.154
- Civil 1st, 5 December 1973, no. 72-12.577
- Civ. 2nd, 15 April 2010, no. 09-10.239
- Civ. 2nd, 11 October 1989, no. 88-10.881
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