A judgment rendered in the absence of a party (a failure to appear) can have radically different consequences depending on its legal status. Whether for national decisions or to enforce a foreign judgment via theexequaturThe complexity of the rules is constant. The distinction between judgments by default and judgments deemed to be contradictory determines not only the possible avenues of appeal, but also the time limits for taking action. Although this distinction is often overlooked by litigants, it is a decisive factor in the strategy to adopt once a court decision has been received.
Definition and importance of the classification of a judgment
The Code of Civil Procedure distinguishes between three categories of judgments, depending on the conditions under which they are handed down.
Judgment is rendered when all the parties have appeared and presented their arguments. Article 467 of the Code of Civil Procedure specifies that it is sufficient for the parties to have appeared "in person or through a representative, in accordance with the procedures specific to the court before which the claim is brought".
In contrast, a judgment by default is given in circumstances strictly defined by article 473, paragraph 1 of the Code of Civil Procedure. Two cumulative conditions must be met: the decision must be final (i.e. not subject to appeal) and the summons must not have been issued to the defendant personally.
Between these two situations, the legislator has created an intermediate category: the judgement deemed to be contradictory. This is a judgment given in the absence of one of the parties but considered to be contradictory for the purposes of determining the means of appeal. This classification applies in particular when the judgment is subject to appeal or when the summons has been issued to the defendant.
The essential difference lies in the means of appeal. Opposition is possible against a default judgment. This allows the defaulting party to have the case re-examined by the same judge. On the other hand, a judgement that is deemed to be contradictory can only be appealed or appealed to the Supreme Court.
Historical development of the concept of default judgment
The concept of default judgment has evolved considerably over time, reflecting a constant trade-off between two contradictory imperatives: protecting the rights of the defaulting party and ensuring the proper administration of justice.
Historically, opposition was widely accepted. The 1806 Code of Civil Procedure opened it up to any judgment by default, in the event of failure to appear or to conclude. However, this approach, which was highly favourable to those in default, had one major drawback: it allowed for delaying tactics, with some litigants deliberately refraining from taking part in the trial in order to delay its outcome.
The first significant change came with the decree-law of 30 October 1935. This law abolished the right to oppose judgments rendered by default for failure to conclude, thus creating the category of judgments "deemed to be contradictory".
The decree of 22 December 1958 then extended this concept to situations where the defendant failed to appear. Henceforth, judgments subject to appeal as well as those handed down after summons delivered in person became contradictory by operation of law.
This development reflects a constant trend: the progressive restriction of the scope of judgments by default and, correlatively, of the opposition route. The legislature took the view that in certain situations, in particular where the defendant has been personally affected by the summons or still has the right to appeal, failure to appear could be considered a deliberate choice that did not merit the protection of opposition.
Current criteria for judgement
Today, the classification of a judgment given in the absence of the defendant is governed by precise rules, codified in articles 473 and 474 of the Code of Civil Procedure.
Judgment by default is now a residual category, limited to cases where two conditions are met: the judgment is rendered at last instance and the summons was not delivered to the defendant. In all other cases, the judgment will be deemed to be contradictory.
The question of personal delivery is a decisive criterion. Article 651 of the Code of Civil Procedure specifies that a summons is considered to have been delivered in person when it is delivered to the addressee himself, and not to a third party (caretaker, neighbour, family member). This delivery guarantees that the defendant has actually been made aware of the proceedings brought against him.
The possibility of lodging an appeal is the other major criterion. The legislator considers that the appeal route offers sufficient protection to the defaulting party, making it unnecessary to lodge an opposition.
Article 474 provides a specific regime for the particular case of multiple defendants. The judgment will be rendered by default against all of them if, cumulatively, it is not subject to appeal and at least one of the defendants has not been summoned in person.
Another essential point is that an incorrect classification in the judgment has no effect on the right to appeal. Article 536 of the Code of Civil Procedure explicitly states that "the incorrect classification of a judgment by the judges who handed it down has no effect on the right to appeal". What matters is the actual characterisation, which derives from the objective conditions under which the judgment was given.
Practical consequences of qualification
The classification of the judgment has considerable practical consequences.
The first consequence, and by no means the least, is that there will be no means of appeal. For contesting a judgment given in your absenceWhen a judgment is rendered by default, it may be challenged by way of opposition (article 476 of the Code of Civil Procedure). This procedure allows the defaulting party to have the case retried before the same court. A judgement that is deemed to be contradictory can only be contested by appeal or cassation.
The time limits also differ. The opposition must be lodged within one month of service of the default judgment (article 528 of the Code of Civil Procedure). For appeals, the time limit is also one month, but the starting point may vary depending on the circumstances.
The notification of default judgments also has its peculiarities. Any judgment by default or deemed to be contradictory for the sole reason that it is subject to appeal must be notified within six months of being handed down (article 478 of the Code of Civil Procedure). Failing this, the judgment becomes null and void - i.e. deemed never to have existed. This rule protects the defaulting party from the surprise of late enforcement.
These differences have strategic implications. For the successful claimant, it is crucial to meet the six-month deadline for notification. For the convicted defendant, the challenge is to correctly identify the nature of the judgment so that the appropriate remedy can be sought within the allotted time.
The protection of the adversarial process, a fundamental principle of civil procedure, justifies these special rules. Even though the legislature has progressively restricted the scope of judgments by default, it maintains guarantees to ensure that no one can be judged without having had an effective opportunity to defend themselves.
To guarantee your rights in the face of a judgment handed down in your absence, a precise analysis of its characterisation is essential. Our firm is at your disposal to examine your situation and determine the best legal strategy to adopt, including for any need relating to the application or challenge of enforcement procedures.
Sources
- Code of civil procedure, articles 467 to 479 (provisions relating to judgments by default and judgments deemed to be contradictory)
- Code of Civil Procedure, articles 528 to 540 (time limits for appeals)
- Code of Civil Procedure, article 651 (personal delivery)
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- Court of Cassation, 2nd Civil Chamber, 3 March 2022, no. 20-17.419 (on the error of qualification and the time limit for appeal)
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