Lapse is one of the most formidable sanctions in private law, and undoubtedly one of the least understood. Unlike nullity, which retroactively annuls an act that has been vitiated from the outset, caducity affects an act that was perfectly valid at the time it was concluded, but which the occurrence of a subsequent event has emptied of its substance. It is neither a penalty nor an invalidation: it is the observation that an act, deprived of an element that was indispensable to it, has ceased to be able to produce its effects. This mechanism runs throughout the law, from contracts governed by the Civil Code to procedural acts governed by the Code of Civil Procedure. Understanding its two faces is the key to gauging the danger and, in some cases, obtaining a remedy.<\/p>\n
Long absent from the Civil Code, the concept of caducity was enshrined in the Order of 10 February 2016 reforming contract law, which reserved an entire sub-section for it in articles 1186 and 1187. In private judicial law, it appears in some twenty articles of the Code of Civil Procedure, scattered among the provisions on summons, appeal, injunction to pay and service of judgment. Despite this dispersal, one guiding principle emerges: lapsing is the sanction imposed on an initially valid act of which an essential element has disappeared after it was formed.<\/p>\n
This definition, adopted by contemporary legal writers - and in particular by Professor Pierre Call\u00e9 in his repertoire of civil procedure - sheds light on two points. First, nullity presupposes an act which was originally flawless: this is what distinguishes it from nullity. Secondly, it is based on the disappearance of an element essential<\/em> Lapse: lapse does not sanction a marginal imperfection, but the loss of an ingredient without which the act no longer had any reason to exist. Whether this element is an object, a cause, a time limit or a formality, its disappearance breaks the balance that justified the act and deprives it of effect.<\/p>\n There are two reasons for the existence of this sanction. The first is logical: what is the point of a deed whose economy is based on an element that no longer exists? The second is disciplinary: nullity is an instrument for combating negligence on the part of the parties. It prevents a claimant from abusing the system by multiplying acts that are never followed up and it obliges litigants to keep to their time limits. In its plenary assembly judgment of 3 April 1987 (no. 86-11.536), the Court of Cassation clearly set out this dual function: nullity sanctions inaction and protects procedural economy.<\/p>\n An act does not lapse because it has become useless, inconvenient or regrettable. It lapses when an element without which it should never have existed disappears after its formation. Article 1186 paragraph 1 of the Civil Code expresses this in one sentence: \u00abA contract validly formed lapses if one of its essential elements disappears\u00bb. The same rule applies to procedure: what lapses is not the act that the judge dislikes, but the act deprived of its support by the expiry of a time limit, the failure to comply with a formality or the inaction of its author.<\/p>\n<\/p><\/div>\n The 2016 reform put an end to a doctrinal uncertainty. Prior to the Order, the nullity of a contract was recognised only by a few judgments and a handful of special texts. Since 1 October 2016, article 1186 of the Civil Code has set out the general regime. It provides for two distinct hypotheses.<\/p>\n Paragraph 1 of article 1186 affects contracts in isolation. If one of the elements which the parties considered essential to its formation - the subject-matter, the cause, a substantial quality, an administrative authorisation - disappears after conclusion, the contract falls. A classic example is a life insurance policy that loses its deceased beneficiary without any possibility of substitution. Another is a unilateral promise to sell where the object (the promised property) is destroyed before the option is exercised. In all these cases, the contract has not been badly formed; it has been emptied along the way.<\/p>\n Paragraphs 2 and 3 of article 1186 enshrine a major case law of the Joint Chamber of 17 May 2013 on multiple-contract transactions. Where several contracts contribute to the same economic transaction (financing + leasing + provision of services), the disappearance of one of them renders the others null and void - provided that their performance was a decisive condition of the parties' consent. This is the mechanism that explains the decline in financial leasing arrangements when the main contract is cancelled. The Court of Cassation has since ensured that this text is strictly applied: it requires that the interdependence be established in concreto, with regard to the economy intended by the parties, and that the contracting party who relies on the lapse of the contract was aware of the existence of the overall transaction at the time he entered into it.<\/p>\n Article 1187 specifies the effects: nullity terminates the contract and may give rise to restitution. Unlike nullity, caducity is not a consequence of a contract. not<\/em> retroactive in principle: it wipes out only future effects. However, where services already performed are rendered moot by the effect of the lapse, restitution is made under the conditions of articles 1352 et seq. The Court of Cassation has recently reiterated that the lapse of a loan contract does not systematically produce retroactive effects (Com., 24 September 2025): the question is delicate and requires a case-by-case analysis.<\/p>\n In private judicial law, the scope of nullity has changed. It no longer sanctions the disappearance of a material element of the contract, but the inaction of the litigant. Article 406 of the Code of Civil Procedure sets out the matrix: \u00abA summons to appear lapses in the cases and conditions determined by law\u00bb. The entire regime is therefore dispersed in special texts, some of which concentrate the bulk of the litigation.<\/p>\n Article 754 of the Code of Civil Procedure, resulting from the 2019 reform of civil procedure, requires the plaintiff to deliver a copy of the summons to the court registry no later than fifteen days before the date of the hearing. Failure to do so will render the summons null and void. This text has replaced the former article 757, while tightening the penalty: before 2020, the summons had to be delivered \u00abin good time\u00bb; today, the time limit is quantified and failure to comply will result in the summons lapsing ipso jure, unless the judge has authorised a shorter time limit in an emergency (art. 755, para. 1).<\/p>\n The aim of this mechanism is well known to all practitioners: to prevent \u00aball-purpose summonses\u00bb, i.e. summonses issued to the defendant but never followed by actual referral to the court, which left the proceedings hanging in the balance like a sword of Damocles. Since 2020, this game is over. The claimant must either bring the case or drop it. The same mechanism exists before the commercial court, but with a different deadline: article 857 of the Code of Civil Procedure requires that the copy be delivered to the registry at least eight days before the hearing. Before the judge of the judicial court ruling on a fixed date, the copy must be delivered before the date of the hearing (art. 843).<\/p>\n Article 468 applies to a plaintiff who, after having brought an action before the court, fails to appear at the hearing without a legitimate reason. The text allows the defendant to ask the judge to declare the summons null and void. The decision is then made by a simple entry in the file, notified to the parties by the court registry. The Social Division of the Cour de cassation applies this rule strictly: as early as 1992, it ruled that it applied even before the tribunal de jugement du conseil de prud'hommes (Soc., 19 February 1992, no. 89-44.145). It is still possible to declare a case null and void, but the rules are strict: the plaintiff must apply to the court clerk's office within fifteen days and demonstrate that he or she was legitimately prevented from appearing. We will come back to this.<\/p>\n It is on appeal that the effect of the lapse of proceedings is most striking, as it is automatic, is raised ex officio and deprives the appellant of any further right of appeal. The Code of Civil Procedure provides for several cumulative hypotheses.<\/p>\n Article 902 requires the appellant, where the respondent has not instructed a lawyer within one month, to serve his statement of appeal. Service must be effected within one month of receipt of the Registry's notice, failing which the appeal will lapse. Article 906-1 (formerly 905-1) shortens this time limit to twenty days following receipt of the notice of determination in proceedings with a short time limit. Article 908 requires the appellant to submit his pleadings to the court registry within three months of the statement of appeal, and article 911 requires them to be served on the parties' lawyers: any failure to do so will result in the lapse of the time limit, which is always raised ex officio.<\/p>\n Since the judgment of 17 September 2020 (no. 18-23.626) and its regular confirmation, the Second Civil Chamber has tightened the regime: the declaration of appeal lapses even in the case of an appellant whose submissions do not expressly seek to have the judgment set aside or set aside (Civ. 2e, 4 November 2021, no. 20-15.757). The severity is justified by article 916, which prohibits a party whose appeal has lapsed from lodging a new main appeal against the same judgment. Lapse on appeal is therefore definitive. However, the European Court of Human Rights, on several occasions, has ruled that this rule does not infringe the right of access to the courts, and the Labour Court has adopted the same reasoning internally (Soc., 8 December 2021, no. 19-22.810).<\/p>\n Summons to the court (art. 754 CPC)<\/strong> To be submitted to the court clerk's office at least 15 days before the hearing. Everyone knows that a judgment must be served in order to be fully effective. But not everyone knows that if it is not served within the time limit, it can lapse - and that lapse simply ruins the benefit of the proceedings.<\/p>\n Article 478 provides that any judgment rendered by default or deemed to be contradictory is null and void<\/em> if it has not been notified within six months of its date. \u00abNon avenu\u00bb means that the judgment disappears retroactively: it is deemed never to have existed. Its authority as res judicata vanishes, its effect in interrupting the statute of limitations is lost, and no act of enforcement can be based on it. For the creditor who has won his case but delayed in having the decision served, this is a disaster: he will have to start the procedure all over again from the beginning, if the statute of limitations does not prevent him from doing so.<\/p>\n The severity of this rule is due to its automatic nature. Article 478 applies ipso jure: no judge has to pronounce it. A creditor who discovers, a year after the judgment, that it has never been served, has no way of saving his decision. Only procedural vigilance protects against this trap - and in practice, it is precisely because it is little known that the lapse of a judgment remains one of the most frequent causes of legal ruin.<\/p>\n The order for payment procedure - both national and European - is based on the principle of reversal of the dispute: the judge first issues his order, and the debate is only opened if the debtor lodges an opposition. In return, this unilateral approach requires the creditor to be absolutely diligent. Article 1411 of the Code of Civil Procedure requires the creditor to serve the order within six months of its date. Failure to do so renders the order null and void. This strictness can be explained: the initial order is merely a \u00abformal notice\u00bb served under judicial authority, and creditors who benefit from this fast-track procedure must show corresponding rigour to retain the benefit of it.<\/p>\n Protective attachments and judicial sureties follow a similar regime. Article R. 511-6 of the Code of Civil Enforcement Procedures provides that judicial authorisation to take a protective measure lapses if the measure is not enforced within three months. Article R. 511-7 requires creditors who have not already commenced proceedings on the merits to do so within one month of enforcement of the measure, failing which the measure lapses. These rules are covered in our guide to the lapsing of precautionary and enforcement measures, which is more a matter of enforcement than civil procedure in the strict sense.<\/p>\n A large proportion of the mistakes made at the palace - and before the judge - stem from confusion between caducit\u00e9 and its neighbours. Each sanctions a different defect, at a different time, with different effects.<\/p>\n Invalidity<\/strong> sanctions an act that was vitiated from its inception: defect in consent, incapacity, absence of cause, defect in form. A void act is annulled retroactively because it should never have produced any effect. Conversely, an act that was perfectly valid at the outset lapses. This distinction is at the heart of the case law: in the judgment of 12 November 1986 (Civ. 1re, no. 84-16.606), the Cour de cassation had already pointed out that an act lapses only when it has lost its object or its basis. subsequently<\/em> training.<\/p>\n The resolution<\/strong> annuls a contract for non-performance. This is a contractual sanction: the debtor has not fulfilled his commitments, and the creditor obtains the annulment of the deed. Lapse, on the other hand, does not imply any fault or non-performance: it simply results from the disappearance of an essential element. Rescission punishes, caducity establishes.<\/p>\n Lapse of proceedings<\/strong> (art. 386 CPC) is a cousin of procedural nullity, but its scope is different: it sanctions inaction. extended<\/em> of the parties for a period of two years, whereas the lapse of a time limit precise<\/em>. Lapse extinguishes the proceedings, but not the right to sue. Lapse, on the other hand, may render the action itself inadmissible if prescription has run in the meantime.<\/p>\n Foreclosure<\/strong>, Finally, it sanctions the expiry of a time limit for exercising a right. In insolvency proceedings, a claim that has not been declared within the time limit is subject to foreclosure - it becomes unenforceable against the proceedings. Foreclosure extinguishes the right of action; lapse extinguishes the act already performed. Practitioners often confuse the two because they lead to the same practical disaster; but the legal reasoning is distinct, and so are the remedies.<\/p>\n The central effect of lapsing is the same in contract law as in judicial law: the lapsed act ceases to have effect. However, it is necessary to specify from when<\/em>, This is where the regimes diverge.<\/p>\n In contractual matters, nullity is not retroactive as a matter of principle. Article 1187 of the Civil Code simply provides that it terminates the contract and may give rise to restitution. As a general rule, past effects are preserved, unless services already performed are rendered meaningless by the lapse - in which case the restitutions of articles 1352 et seq. come into play. The Cour de cassation recently stated that the lapse of a loan contract, for example, has no retroactive effect on interest already accrued.<\/p>\n In procedure, on the other hand, the lapse is annihilating. An act that has lapsed is deemed never to have existed. A lapsed writ of summons never went to court. A judgment that has lapsed has never interrupted prescription. In its seminal decision of 3 April 1987 (no. 86-11.536), the Assembl\u00e9e pl\u00e9ni\u00e8re de la Cour de cassation ruled that a lapsed writ of summons did not interrupt the limitation period. This is a harsh but logical solution: to accept the opposite would be tantamount to allowing the plaintiff to extend the limitation period indefinitely by issuing summonses at regular intervals, without ever actually bringing the case before the court.<\/p>\n It is this last effect that makes lapsing in proceedings so dangerous: when lapsing is combined with prescription, it can extinguish not only the proceedings but also the action. A litigant whose writ of summons has been declared lapsed theoretically only has the right to issue a new writ if the action is not time-barred. If the statute of limitations has run during the lapsed proceedings, the action is lost. Article 385 of the Code of Civil Procedure reiterates this rule: the lapse of the summons terminates the proceedings and does not, in principle, prevent the commencement of new proceedings, provided that the action is not time-barred. In practice, this proviso is often fatal.<\/p>\n On appeal, the severity is even greater: the lapse of the declaration of appeal leaves no room for any new main appeal (art. 916 CPC). Not only does it extinguish the current appeal, it also prohibits any other appeal. The Second Civil Chamber confirmed this in a judgment of 13 May 2015 (no. 14-13.801) and has held firm to it ever since.<\/p>\n What remains for a litigant whose case has lapsed? There are two ways, depending on the case: contesting the decision that declared the case null and void, or seeking relief.<\/p>\n Where the court has declared that the proceedings have lapsed, its decision may be challenged by the ordinary means of appeal: an appeal for retraction before the same judge where the decision has been made on the basis of a mere mention in the case file (art. 407 CPC), a referral to the Conseiller de la mise en \u00e9tat where the lapse has been raised ex officio in the appeal proceedings (art. 914, now 913-5 CPC), or an appeal against the court's order where this avenue is open. The classic grounds of appeal relate to material inaccuracy - the document was indeed at the registry, the time limit had not expired, the notification was never received - and, more rarely, to the application of the sanction to a case that it did not cover. These challenges are dealt with in detail in our article on remedies and strategies for dealing with a decision that a case has lapsed.<\/p>\n The second option, which allows the claimant to \u00abresurrect\u00bb the proceedings, is to declare that the proceedings have lapsed. Article 468 paragraph 3 provides for this option in the specific case of failure to appear: the plaintiff may, within fifteen days of notification of the decision, inform the court registry of the \u00ablegitimate reason\u00bb that he was unable to invoke in time. If the judge deems the reason to be well-founded, he will declare the case null and void and the proceedings will resume.<\/p>\n The notion of legitimate reason<\/em> is not defined by law. The Cour de cassation assesses it in a sovereign and rigorous manner. The Second Civil Chamber has ruled that neither the geographical distance of counsel (Civ. 2e, 8 February 2024, no. 21-25.928) nor the failure to receive opposing submissions (Civ. 2e, 28 June 2012, no. 11-21.051) constitute legitimate reasons. On the other hand, documented cases of force majeure (hospitalisation, natural disaster), technical failures attributable to the court registry or the postal service, and, more rarely, the failure of counsel when it materially prevented the party from defending itself are accepted. In practice, the statement is only obtained when the party can produce tangible proof of an impediment that was beyond its control.<\/p>\n The formalities for the statement are strict. The request must be in writing, must state the reasons for the request, must be sent to the court clerk's office within fifteen days and must be accompanied by the documents justifying the reason given. It does not dispense with the need for a lawyer in courts where representation is compulsory. Above all, the statement is not available in all cases of lapse: it mainly concerns lapse pronounced under article 468. On appeal, the rules are different and it is virtually impossible to revive the proceedings.<\/p>\n The best defence against lapse is, and will remain, procedural vigilance. No argument, no legitimate reason, no favourable case law is worth a deadline that is respected. In practice, there are three habits that save almost every case: systematically setting out the mandatory deadlines when the case is referred to us or when the appeal is lodged, allowing a safety margin of at least one week for short deadlines, and entrusting responsibility for monitoring to a single contact - lawyer, secretary, software. The pitfall of the lapse of time is not its complexity: it is the fact that it strikes without warning and without any possibility of catching up.<\/p>\n Our firm regularly assists litigants faced with a lapse of time - either to challenge it, or to try to have it lifted, or, better still, to prevent it by securing the time limits of proceedings in progress. If you have any doubts about the legality of a procedure or the enforcement of a judgment, contact us before a delay occurs<\/a> is almost always less costly than trying to make up for a lapse that has already occurred.<\/p>\n Nullity sanctions an act which, from its inception, was defective - lack of consent, incapacity, defect in form, unlawful purpose. A null act is annulled retroactively because it should never have produced any effect. By contrast, an act that is perfectly valid at the outset but loses something essential to its validity or effectiveness after the event is null and void. The difference is decisive in law: a void act is vitiated in its formation, a null act in its execution.<\/p>\n<\/details>\n Article 1186 provides for two hypotheses. The first is that a contract taken in isolation lapses if one of its essential elements - its subject-matter, its cause, an administrative authorisation, a substantial quality - disappears after it has been concluded. The second is that, in a group of contracts contributing to the same economic transaction, the disappearance of one leads to the lapsing of the others where their performance was a decisive condition of the parties' consent, and this link was known to the contracting party at the time of his undertaking.<\/p>\n<\/details>\n Article 478 of the Code of Civil Procedure provides that a judgment rendered by default or deemed to be contradictory becomes null and void if it is not notified within six months of its date. \u00abNon avenu\u00bb means that the judgment disappears retroactively: its authority as res judicata vanishes, its effect in interrupting the statute of limitations is lost, and no act of enforcement can be based on it. The sanction is automatic and no request for relief is provided for in the text: prevention is the only protection.<\/p>\n<\/details>\n Article 468 paragraph 3 of the Code of Civil Procedure allows a plaintiff whose summons has been declared null and void for failure to appear to apply to the court clerk's office, within fifteen days of notification, to put forward a legitimate reason for being prevented from appearing. If the judge accepts the reason, the proceedings are declared null and void and resumed. The Court of Cassation is strict in its assessment of what constitutes a legitimate reason: a simple oversight, a scheduling error or the counsel's distance from the court are not sufficient. Only circumstances attributable to a third party or documented force majeure are accepted.<\/p>\n<\/details>\n No. Article 916 of the Code of Civil Procedure prohibits a party whose appeal has lapsed from lodging a new main appeal against the same judgment. An appeal that has lapsed is therefore definitive, unless the party applies for a very strictly circumscribed retraction or refers the case to the Conseiller de la mise en \u00e9tat to challenge the decision itself. The Cour de cassation and the European Court of Human Rights have ruled that this rule does not infringe the right of access to the courts.<\/p>\n<\/details>\n Yes, and this is its most formidable effect. In a decision of the plenary session of 3 April 1987 (no. 86-11.536), the Court of Cassation ruled that a lapsed writ of summons did not interrupt the running of the statute of limitations. In practice, the limitation period continues to run as if the summons had never been issued. If the limitation period has elapsed during the proceedings that have lapsed, the action is lost, even though the plaintiff may theoretically initiate new proceedings on the basis of article 385 of the Code of Civil Procedure.<\/p>\n<\/details><\/div>\n<\/section>","protected":false},"excerpt":{"rendered":" En droit judiciaire priv\u00e9, la caducit\u00e9 est la sanction qui frappe un acte r\u00e9guli\u00e8rement form\u00e9 mais qui a perdu, post\u00e9rieurement \u00e0 sa conclusion, un \u00e9l\u00e9ment essentiel \u00e0 sa validit\u00e9. Elle frappe aussi bien le contrat dont la cause a disparu que l’acte de proc\u00e9dure abandonn\u00e9 par la partie n\u00e9gligente. Ses effets sont radicaux : l’acte caduc est r\u00e9put\u00e9 n’avoir jamais produit effet, et la prescription qu’il avait interrompue reprend son cours comme si rien n’avait \u00e9t\u00e9 fait.<\/p>","protected":false},"author":0,"featured_media":0,"parent":18288,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"page-templates\/template-guide-enfant.php","meta":{"footnotes":""},"solent_domaine":[432,416],"class_list":["post-18346","page","type-page","status-publish","hentry"],"_links":{"self":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18346","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/types\/page"}],"replies":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/comments?post=18346"}],"version-history":[{"count":1,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18346\/revisions"}],"predecessor-version":[{"id":18347,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18346\/revisions\/18347"}],"up":[{"embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/pages\/18288"}],"wp:attachment":[{"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/media?parent=18346"}],"wp:term":[{"taxonomy":"solent_domaine","embeddable":true,"href":"https:\/\/solent-avocats.com\/en\/wp-json\/wp\/v2\/solent_domaine?post=18346"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}Contract nullity (articles 1186 and 1187 of the Civil Code)<\/h2>\n
First case: the disappearance of an essential element of the contract<\/h3>\n
Second case: lapse of interdependent contractual sets<\/h3>\n
Lapse in civil proceedings<\/h2>\n
Lapse of the writ of summons before the court<\/h3>\n
Lapse for failure to appear: Article 468 CPC<\/h3>\n
Lapse in appeal proceedings: the most feared regime<\/h3>\n
\n Summons to appear before the Commercial Court (art. 857 CPC)<\/strong> To be submitted to the court clerk's office at least 8 days before the hearing.
\n Service of the statement of appeal (art. 902 CPC)<\/strong> within one month of receipt of the notice from the registry.
\n Summary proceedings (art. 906-1 CPC)<\/strong> Service within 20 days of the notice of attachment.
\n Appeal submissions (art. 908 CPC)<\/strong> : delivered to the court clerk's office within 3 months of the statement of appeal.
\n Service of default judgment (art. 478 CPC)<\/strong> within 6 months of the decision.
\n Service of the order for payment (art. 1411 CPC)<\/strong> within 6 months of the order.<\/p>\n<\/p><\/div>\nLapse of judgments and orders<\/h2>\n
Article 478 of the Code of Civil Procedure: the six-month trap<\/h3>\n
Lapse of the order for payment (article 1411 CPC)<\/h3>\n
Lapse of precautionary measures<\/h3>\n
Caducit\u00e9, nullit\u00e9, r\u00e9solution, p\u00e9remption: not to be confused<\/h2>\n
The effects of lapsing<\/h2>\n
Contesting and declaring null and void<\/h2>\n
Challenging the lapse decision<\/h3>\n
Statement of lapse: article 468 paragraph 3 CPC<\/h3>\n
Strategy: prevention rather than cure<\/h3>\n
Sources<\/summary>\n
Legal texts<\/h3>\n
\n
Case law<\/h3>\n
\n
Frequently asked questions about lapsing<\/h2>\n
What is the difference between nullity and invalidity?<\/summary>\n
When does a contract become null and void within the meaning of article 1186 of the Civil Code?<\/summary>\n
What happens if a judgment is not served within six months?<\/summary>\n
What is a statement of lapse and how do I obtain one?<\/summary>\n
Can a new appeal be lodged after the statement of appeal has lapsed?<\/summary>\n
Does the lapse of a writ of summons erase the interruption of the limitation period?<\/summary>\n