Deadlines structure civil litigation. They impose a time frame on litigants and often constitute a formidable trap for the uninitiated. One day's delay can wipe out years of proceedings.
Lapse of proceedings
Definition and conditions
Peremption is a procedural exception that extinguishes the proceedings. It sanctions inaction by the parties for two years. According to article 386 of the Code of Civil Procedure, it "merely extinguishes the proceedings without any of the acts of the expired proceedings ever being set up against or relied upon".
The time limit begins to run as soon as the summons is delivered to the court registry. If the summons is not delivered within four months, it lapses (article 757 paragraph 2 of the Code of Civil Procedure).
Peremption may be requested by both the defendant and the plaintiff, by way of action or exception. It must be raised before any other plea, in accordance with article 388 of the Code of Civil Procedure.
Decree no. 2017-892 of 6 May 2017 amended Article 388 to allow the judge to declare ex officio that proceedings have lapsed, after inviting the parties to present their observations.
Impact of the suspension
The limitation period is not suspended by events that suspend the proceedings. Neither removal from the register by the judge nor withdrawal from the list suspends the time limit.
This logical solution for striking off the list, a sanction for the negligence of the parties, seems less justified for an agreed withdrawal from the list. When the parties jointly request this withdrawal in order to attempt conciliation, it seems unfair to penalise them. However, case law remains firm: only a stay of proceedings suspends the lapse of time.
Impact of the interruption
Interruption of proceedings cancels out the limitation period. Article 392 paragraph 1 of the Code of Civil Procedure states that "the interruption of the proceedings entails the interruption of the limitation period".
The proceedings are automatically interrupted if a litigant reaches the age of majority, if the lawyer ceases to practise, or if a judgment is handed down ordering collective proceedings. It ceases with the resumption of proceedings, evidenced by the appointment of a lawyer or the filing of pleadings.
An application for legal aid also interrupts the limitation period (Civ. 2e, 19 November 2009, no. 08-16.698).
Interruptive and excluded acts
To interrupt the time limit, the act must advance the case. The Cour de cassation requires "an act that forms part of the proceedings and is intended to continue them" (Civ. 2e, 4 March 2004, no. 02-12.516).
Not interruptible:
- Filing submissions without a request for reinstatement after striking off the register
- Requests for re-registration followed by striking off the roll
- Letters informing the judge of an appeal pending
However, the time limit is interrupted :
- Letters criticising an expert opinion
- Letters asking the judge to expedite an expert opinion
The time limit does not apply when the parties are waiting for a hearing to be set after having taken all the necessary steps. An important jurisprudential turnaround occurred on 7 March 2024: the 2nd Civil Chamber ruled that when the parties have fulfilled all their procedural obligations, the statute of limitations no longer applies against them (rulings no. 21-19.475, 21-19.761, 21-20.719 and 21-23.230).
Lapse
Lapse of the claim
There are two main grounds for invalidity: failure to comply with the registration deadline and failure to serve notice of the judgment.
The time limit for registration is four months before the court (article 757 paragraph 2 of the Code of Civil Procedure). This period is reduced to the day before the hearing for a fixed-date summons.
In an appeal, the appellant has three months from the date of the statement of appeal in which to conclude. If he fails to do so, his statement of appeal lapses (article 908 of the Code of Civil Procedure). The Court of Cassation has specified that where the statement of appeal is sent by registered letter, this period runs from the date the letter is sent (Civ. 2e, 9 January 2020, no. 18-24.107).
A claimant who fails to appear without a legitimate reason is also declared null and void. The judge may declare the summons to be null and void, but this decision may be reversed if the plaintiff proves a legitimate reason within fifteen days (article 468 of the Code of Civil Procedure).
Judgment lapses
Article 478 of the Code of Civil Procedure provides that a judgment by default or deemed contradictory is null and void if it is not notified within six months of its date. This rule is intended to prevent a plaintiff from waiting for an opportune moment to reveal the judgment to the defendant.
The Court of Cassation recently reiterated this principle in a ruling dated 14 September 2023 (no. 21-23.793).
Diet and effects
If the writ of summons lapses, the protective measures ordered previously may lapse and destroy the effect of interrupting the limitation period.
When the judgment is null and void, all acts based on it lapse. The initial proceedings remain valid and can be resumed by reissuing the writ of summons.
This sanction, a procedural objection, must be raised before any defence on the merits or plea of inadmissibility. It cannot be raised for the first time on appeal (Civ. 2e, 11 October 1995, no. 93-14.326).
Forfeiture
Time limits
Proceedings before the Cour de cassation is a perfect illustration of the time limits for forfeiture. The appellant has four months in which to file its statement of appeal and notify it to the other parties (article 978 of the Code of Civil Procedure).
Within the same time limit, he must submit to the court registry, on pain of inadmissibility, a copy of the contested decision and the documents serving it (article 979).
The defendant has two months to lodge his statement of defence and serve it (article 982). This time limit also applies to cross-appeals.
Automaticity and exceptions
Forfeiture operates automatically. The Court of Cassation generally rejects justifications based on errors made by the legal representatives (Civ. 2e, 12 July 2001, no. 00-17.329).
However, this rigour has been tempered by the European Court of Human Rights. In the Platakou v Greece judgment of 11 January 2001, it accepted that the appeal could be reopened in the name of the right of access to a judge.
Forfeiture may be only partial, affecting only certain pleas submitted out of time or concerning only one of the appellants.
Act before it's too late
These time limits form a veritable procedural obstacle course. Péremption, caducité and déchéance have one thing in common: they mercilessly punish inaction or delay.
These technical rules require constant vigilance. A single day's delay can wipe out substantial rights that are perfectly justified. The complexity of the interruptions and suspensions mechanism exacerbates this risk.
The firm remains available to analyse your situation and support you in your legal proceedings. The assistance of a lawyer becomes essential for navigating the temporal pitfalls that punctuate the judicial process.
Sources
- Code of Civil Procedure, articles 386 to 393 (limitation period), 757, 908 (lapse), 978 to 982 (forfeiture)
- Civ. 2e, 19 November 2009, no. 08-16.698, JCP 2010
- Civ. 2e, 4 March 2004, no. 02-12.516, Bull. civ. II, no. 92
- Civ. 2e, 7 March 2024, no. 21-19.475, 21-19.761, 21-20.719 and 21-23.230
- Civ. 2e, 9 January 2020, no. 18-24.107
- Civ. 2e, 14 September 2023, no. 21-23.793
- Civ. 2e, 11 October 1995, no. 93-14.326, Bull. civ. II, no. 233
- ECHR, 11 January 2001, Platakou v Greece
- Decree no. 2017-892 of 6 May 2017
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