Mise A jour LEGIFRANCE LE 15 sept 2003

dernier texte modificateur signalé : Decret 2003-542 du 23/06/03 (JO 25/06/03)

NEW CODE OF CIVIL PROCEDURE

BOOK I PROVISIONS COMMON TO ALL COURTS

 

TITLE I PRELIMINARY PROVISIONS

 

CHAPTER I GUIDING PRINCIPLES FOR TRIAL

 

SECTION I PROCEEDINGS

 

Article 1

 

Only the parties may institute proceedings, save where the law shall provide otherwise. They shall have the right to terminate the same prior to them being disposed of by way of a judgment or by virtue of the law.

 

Article 2

 

Parties shall conduct the proceedings under the duties incumbent upon them. They shall carry out the procedural steps in accordance with the manner and within the time-limit as applicable.

 

Article 3

 

The judge shall supervise over the proper progress of the proceedings; he shall exercise such powers in view of imparting the time-limits and of giving such directions as necessary.

 

SECTION II THE SUBJECT MATTER OF A DISPUTE

 

Article 4

 

The subject matter of a dispute shall be determined by the respective claims of the parties.

Such claims shall be set out in the originating application and in the defence. Notwithstanding the above, the subject matter of a dispute may be amended by incidental claims where they display a sufficient link so as to connect them with the original claim.

 

Article 5

 

A judge must rule upon all the points at issue and only upon them.

 

SECTION III THE FACTS

 

Article 6

 

In support of their claims, the parties shall be held to allege the relevant facts giving rise to them.

 

Article 7

 

A judge shall not found his decision on the facts not at issue.

A judge may even take into consideration such facts as forming part of the oral arguments but on which the parties did not lay specific emphasis to support their contention.

 

Article 8

 

A judge may invite the parties to provide factual explanations that he shall deem necessary in view of the resolution of the dispute.

 

SECTION IV EVIDENCE

 

Article 9

 

It shall be incumbent on each party to prove in accordance with the law the constituent facts in view of the success of his claim.

 

Article 10

 

A judge may exercise such powers ex proprio motu in the giving of such directions as shall be legally appropriate.

 

Article 11

 

Parties shall be held to assist in the implementation of directions, save that the judge may draw such conclusions from the abstention or refusal of a party in relation to the same.

Where a party is withholding an item of evidence, the judge may, on the application of the other party, order him to produce the same, where necessary under pain of a civil penalty. He may, on application by one of the parties, request or order, where necessary under the same penalty, the production of all exhibits in the possession of third parties where there are no legitimate impediment to producing them.

 

SECTION V THE LAW

 

 

Article 12

 

(Conseil d'Etat No. 1975, 1905, 1948 to 1951 of 12 October 1979, Rassemblement des nouveaux avocats de France et autres, JCP 1980, II, 19288)

 

A judge shall determine a dispute in accordance with the rules of law applicable thereto.

He shall provide or restore the proper legal definitions in relation to facts and deeds in issue without limiting himself for that matter to the denominations proffered by the parties.

He may ex proprio motu raise points of law irrespective of the legal basis relied upon by the parties.

Notwithstanding the above, he may not change such denomination or legal bases where the parties, by virtue of an express agreement and in the exercise of such rights which vest upon them an unfettered enjoyment, have limited his cognisance to such legal definitions and points of law within which they seek to restrict the argument.

Where a dispute has arisen, the parties may, where it shall pertain to the same matters and in the same conditions, vest the judge as an amicable compounder which shall be amenable to an appeal where the parties have not expressly renounced to the same.

 

Article 13

 

A judge may invite the parties to proffer such submission on points of law which he shall deem necessary for the resolution of the dispute.

 

SECTION VI THE ADVERSARY PROCEDURE

 

Article 14

 

No party may have a determination entered against him without having been heard or called.

 

Article 15

 

The parties shall be held to make known in due time to each other the set of facts giving rise to their claim, the items of evidence they shall produce and points of law they shall rely upon so that each of them shall be in a position to prepare his case.

 

Article 16

 

(Decree No. 76-714 of 29 July 1976, sec. 1, Official Journal of 30 July 1976)

 

(Conseil d'Etat 1875, 1905, 1948 to 1951 of 12 October 1979, Rassemblement des nouveaux avocats de France et autres, JCP 1980, II, 19288)

 

(Decree No. 81-500 of 12 May 1981, sec.6, Official Journal of 14 May 1981)

 

A judge shall, at any event, cause to comply, and shall himself comply, with the adversary principle.

He may not, in his decision, take into consideration issues, explanations and exhibits relied upon or produced by the parties save where the parties had an opportunity to consider them in an adversarial manner.

He shall not found his decision on points of law which he has raised ex proprio motu without having first invited the parties to comment thereon.

 

Article 17

 

Where the law shall allow or where the circumstances shall necessitate that a direction be given without informing a party, the latter shall have an appropriate right of review where he is aggrieved by a decision pursuant to the same.

 

SECTION VII THE CONTENTION

 

Article 18

 

A party may plead his cause himself subject to circumstances where representation shall be mandatory.

 

Article 19

 

A party shall choose freely his representative either to represent him or to assist him in accordance with the law or its directives.

 

Article 20

 

A judge may hear the parties themselves at any time.

 

SECTION VIII SETTLEMENT

 

Article 21

 

It shall be part of the duties of the judge to conciliate the parties.

 

SECTION IX ORAL ARGUMENTS

 

Article 22

 

Oral arguments shall be held in public, save where the law allows or directs that they be held in chambers.

 

Article 23

 

A judge shall not be bound to have recourse to an interpreter where he shall master the language used by the parties.

 

SECTION X DUTY OF COURTESY

 

Article 24

 

Parties shall be bound to act at all times with due respect to the law.

A judge may, according to the seriousness of the contempt, pronounce, even ex proprio motu, injunctive decrees, ban publications, declare them defamatory or order the publication and posting of his judgments.

 

CHAPTER II RULES APPLICABLE TO NON-CONTENTIOUS MATTERS

 

Article 25

 

A judge shall rule upon in a non-contentious matter where in the absence of a dispute he is seised of an application in relation to which the law requires, by virtue of the nature of the matter or the status of the petitioner, that it shall be brought under his supervision.

 

Article 26

 

A judge may found his decision on all the facts relative to the case submitted before him, even those which have not been alleged.

 

Article 27

 

A judge shall proceed with, even ex proprio motu, all necessary investigations.

He shall have the power to hear without any prescribed formality persons who may provide guidance to him as well as those whose interests may be aggrieved by his decision.

 

Article 28

 

A judge may rule upon a matter without it being subsequent to oral arguments.

 

Article 29

 

A third party may be granted leave by the judge to consult the file of a case and to have copies thereof delivered to him where he shall show cause of a legitimate interest in the same.

 

TITLE II THE ACTION

 

Article 30

 

An action is the right, in relation to the originator of a claim, to be heard on the merits of the same in order that the judge shall pronounce it well or ill-founded.

In relation to the opponent, an action is the right to contest the merits of a claim.

 

Article 31

 

An action shall lie to all persons having a legitimate interest in the success or the dismissal of a claim save where the law shall confer locus standi only to those persons allowed to bring or contest a claim or to defend a specific interest.

 

Article 32

 

A claim made by or against a person who is divested of the right to bring an action shall be inadmissible.

 

Article 32-1

 

(Inserted by Decree No 78-62 of 20 January 1978, sec.14, Official Journal of 24 January 1978)

 

A litigant acting in a dilatory or vexatious manner may be penalised by way of a civil penalty of F 100 to F 10 000, without prejudice to damages and interests thereon which may be claimed.

 

TITLE III JURISDICTION

 

CHAPTER I SPECIFIC JURISDICTION

 

Article 33

 

The jurisdiction of a court that it shall entertain in relation to a subject-matter shall be determined by the rules relating to judicial organisation and by way of specific provisions.

 

Article 34

 

Jurisdiction to be entertained in relation to an amount of a claim or in relation to a jurisdictional value-limit under which no appeal shall lie shall be determined by rules specific to each court and by the provisions as hereinafter.

 

Article 35

 

Where several claims relying on different facts and which are not connected with one another are made by a claimant against the same opponent and joined in the same proceedings, the relevant jurisdiction and the jurisdictional value-limit shall be determined by the nature and the value of each claim considered separately.

Where the claims which are consolidated draw on the same facts or are connected therewith, the relevant jurisdiction and jurisdictional value-limit shall be determined by the aggregate value of the claims.

 

Article 36

 

Where claims are brought in one single proceedings pursuant to a common action on behalf of several claimants or against several defendants, the jurisdiction and the jurisdictional value-limit shall be determined in relation to all the claims by virtue of that one claim which shall carry the highest claim-value.

 

Article 37

 

Where the jurisdiction of a court shall depend on the amount of a claim, the court shall entertain all interventions and counterclaims and set-offs which are lower to its jurisdictional value-limit even where, joined to the claims of the claimant, they shall exceed the said value-limit.

 

Article 38

 

Where the incidental claim shall exceed the jurisdictional value-limit a court, a judge of the same, where a party shall allege a lack of jurisdiction, may either rule upon the original claim or may remit the parties to litigate in relation to the totality of the matter before the competent court which may have cognisance of the incidental claim. Notwithstanding the above, where a counterclaim for damages and interest is based exclusively on the original claim, the judge shall be competent to entertain the matter irrespective of the value of the claim.

 

Article 39

 

Subject to the provisions of Article 35, no appeal shall lie against the judgment where none of the incidental claims shall exceed the jurisdictional value-limit of the last resort.

Where one of them shall exceed such limit, the judge shall rule as a tribunal of first resort in relation to all the claims. He shall rule upon as of last resort where the claim which shall exceed the jurisdictional value-limit is further to a counterclaim for damages and interests based exclusively on the original claim.

 

Article 40

 

An appeal shall lie against the judgment which has ruled upon an unspecified claim save where there are contrary provisions to the same.

 

Article 41

 

Once a dispute has arisen, the parties may nevertheless agree to submit their dispute before a court which otherwise would have lacked jurisdiction with reference to amount the of the claim.

Further, they may, under the same condition and for matters which vest upon them an unfettered right, agree by virtue of an express agreement that their dispute shall be justiciable without a right of appeal even where the amount of the claim shall exceed the jurisdictional value-limit of the last resort.

 

CHAPTER II TERRITORIAL JURISDICTION

 

Article 42

 

(Decree No.81-500 of 12 May 1981, sec.7, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

The court territorially competent shall be, save where contrary provisions shall apply, the one for the situs where the defendant has established his dwelling.

Where there are several defendants, the claimant shall seise, at his choice, the court of the situs where one of them has established his dwelling.

Where the defendant has no known domicile or known residence, the claimant may seise the court of the situs where he has established his dwelling or anyone of his choice where he has established his dwelling in a foreign country.

 

Article 43

 

Where the defendant has established his dwelling shall mean:

- in relation to a natural person, the situs where he has his domicile or, in default thereof, his residence,

- in relation to a corporate entity, the situs where it is established.

 

Article 44

 

In real actions relating to immovables, the court in whose province it is situated shall be the only competent court.

 

Article 45

 

Matters involving succession shall be brought before the court in whose province the succession originated and was effectuated to the time of the apportionment where they relate to:

- claims among heirs;

- claims brought by creditors of the decedent;

- claims regarding the implementation of disposition taking effect causa mortis.

 

Article 46

 

(Decree No.81-500 of 12 May 1981, sec.7, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

The claimant may seise at his choice, in addition to the court in whose province the defendant has established his dwelling;

- in contractual matters, the court in whose province actual delivery of the personalty or in whose province the performance of the agreed service has been contemplated;

- in delictual matters, the court in whose province the wrongful act was occasioned or the one in whose province the damage was suffered;

- in mixed matters, the court in whose province the immovable is situated;

- in matters of spousal maintenance or contribution to the expenses of marriage, the court in whose province the creditor has established his dwelling.

 

Article 47

 

Where a judge or an auxiliary of justice is a party to a litigation within the jurisdiction of the court in the province of which the latter sits in office, the claimant may seise a court sitting in an adjacent province.

The defendant and all parties to an appeal may likewise ask to remit the matter before a court referred to under the same conditions; matter shall be proceeded with as provided under Article 97.

 

Article 48

 

Any clause which, directly or indirectly, shall depart from the rules of territorial jurisdiction shall be deemed non existent save where it has been agreed between parties to a contract entered into in the capacity of tradesmen and that the same has been provided for in an explicit manner in the undertakings of the party against whom it shall be enforced.

 

CHAPTER III COMMON PROVISIONS

 

Article 49

 

A court seised of a claim in relation to which it shall entertain jurisdiction, shall have cognisance of all the grounds adduced in defence, even where they shall require an interpretation of a contract, save where they shall raise issues which shall come under the exclusive jurisdiction of an another court.

 

Article 50

 

Preliminary issues of proceedings shall be ruled upon by the court before which the proceedings to which they relate shall be carried out.

 

Article 51

 

The tribunal de grande instance shall entertain jurisdiction in relation to all incidental claims which shall not come under the exclusive jurisdiction of an another court.

Other courts shall entertain jurisdiction in relation to preliminary issues only where they are jurisdictive over the same.

 

Article 52

 

(Decree No. 78-62 of 20 January 1978, sec.15 Official Journal of 24 January 1978)

 

(Decree No.81-500 of 12 May 1981, sec.9, Official Journal of 14 May 1981)

 

Claims in relation to costs, emoluments and disbursements which are incidental to a proceeding, and which have been outlayed before a court by the auxiliaries of justice, public officers or officiers ministériels shall be brought before such court.

Claims regarding costs, emoluments and disbursements which have not been outlayed before a court shall be brought before the Tribunal d'instance or the Tribunal de grande instance, according to the amount of the same, in the province where the public officer or the officier ministériel or the auxiliary of justice carries out his business.

 

TITLE IV CLAIM BEFORE A COURT

 

CHAPTER I INITIAL CLAIM

 

SECTION I CLAIM IN CONTENTIOUS MATTERS

 

Article 53

 

The originating application is the one whereby a litigant shall take the initiative of judicial proceedings by submitting his contentions before a judge.

It shall initiate the proceedings.

 

Article 54

 

Subject to cases where proceedings are instituted by way of a petition or by way of a declaration to the clerk's office of the court and those where cognisance shall be taken by a voluntary presentation of the parties before a judge, the originating application shall be brought by way of summons or by the filing of a joint petition at the clerk's office of the court.

 

Article 55

 

Summons is a process of a huissier of justice whereby a claimant shall cite his opponent to appear before a judge.

 

Article 56

 

(Decree No. 98-1231 of 28 December 1998, sec.3, Official Journal of 30 December 1998, in force on 1 March 1999)

 

The summons shall contain, under penalty of it otherwise being null, further to the particulars prescribed for process served by a huissier of justice:

1° The indication of the court before which the claim is brought;

2° The subject-matter of the claim with a presentation of the issues of facts and of law;

3° The indication that, where the defendant fails to appear, he shall incur the risk that a judgment be entered against him on the sole items produced by his opponent;

4° Should the occasion arise, particulars in relation to the identification of immovables as required by the land registry in relation to their advertisement.

Further, it shall contain indications in relation to the exhibits in support of the claim. Such exhibits shall be listed in a docket which shall be attached.

It shall amount to the necessary pleadings.

 

Article 57

 

The joint petition shall be the process in common whereby the parties shall submit before a judge their respective claims, the points on which they disagree as well as their respective grounds.

It shall contain, further, under penalty of it otherwise being inadmissible:

1° a) in relation to natural persons, the surname, first names, occupation, domicile, nationality, date and place of birth of each of the petitioners;

b) in relation to corporate entities, their form, denomination, the address of their registered office and the body which shall legally represents them;

2° an indication of the court before which the claim is brought;

3° should the occasion arise, particulars in relation to the identification of immovables as required by the land registry in relation to their advertisement.

It shall also contain an indication as to the exhibits in support of the claim.

It shall be dated and signed by the parties.

It shall amount to the necessary pleadings.

 

Article 58

 

Where such right is conferred upon them by virtue of Article 12, the parties may, where they have not yet resorted to the same since the commencement of the dispute, vest the judge with the vires of an amicable compounder by virtue of the joint petition or limit his cognisance to such legal definitions and points of law within which they seek to restrict the argument.

 

Article 59

 

The defendant shall have to, on pain of being declared, even ex proprio motu, inadmissible, set out in his defence:

a) in relation to a natural person, his surname, first names, occupation, domicile, nationality, date and place of birth;

b) in relation to a corporate entity, its form, denomination, registered seat and the department that shall represent it legally.

 

SECTION II CLAIM IN NON-CONTENTIOUS MATTERS

 

Article 60

 

In non-contentious matters, the claim shall be brought by way of petition.

 

Article 61

 

The judge shall be seised by the filing of the petition at the clerk's office of the court.

 

Article 62

 

Further, before a tribunal d'instance, a claim may be brought and the court seised by way of an oral declaration taken down by the clerk's office-registry of the court.

 

CHAPTER II INCIDENTAL CLAIMS

 

Article 63

 

Incidental claims are: counterclaim, additional claim and intervention.

 

Article 64

 

Shall constitute a counterclaim a claim whereby the original defendant shall contend in his favour beyond the mere dismissal of the contention brought forward by the opponent.

 

Article 65

 

Shall constitute an additional claim a claim whereby a party shall amend his previous claims.

 

Article 66

 

Shall constitute an intervention a claim whereby the effect shall be to join a third party to an action which involved the original parties.

Where the claim shall emanate from a third person, the intervention shall be voluntary: the intervention shall be a compelled one where a party has impleaded a third person.

 

Article 67

 

The incidental claim shall have to contain the claims and grounds of the party bringing it and shall identify the supporting documents.

 

Article 68

 

Incidental claims shall be brought against parties to a proceedings in the same manner as defences are submitted.

They shall be brought against defaulting parties or third parties in the manner provided for to institute proceedings. In relation to appeals, they shall be brought by way of summons.

 

Article 69

 

The instrument whereby an incidental claim is brought shall amount to a pleading; it shall have to be denounced to other parties.

 

Article 70

 

Counterclaims or additional claims shall only be admissible where they are connected by way of a sufficient link with the original claims.

Notwithstanding the above, a claim for set-off shall be admissible even in the absence of such a link, but the judge may sever them where it is likely to delay excessively the judgment on the whole.

 

TITLE V GROUNDS OF DEFENCE

 

CHAPTER I DEFENCE

 

Article 71

 

A point which shall cause the dismissal because unfounded in relation to the merits, after an examination of the law, the claims of the opponent shall constitute a substantive defence.

 

Article 72

 

Substantive defences may be proffered at any stage of the proceedings.

 

CHAPTER II PROCEDURAL PLEAS

 

Article 73

 

Issues raised against a procedural course of action to have it declared irregular, extinguished or stayed shall constitute a procedural plea.

 

Article 74

 

Pleas shall have, under penalty of it otherwise being inadmissible, to be raised simultaneously and prior to any substantive defence or peremptory declaration of inadmissibility. It shall be likewise even where the rules relied upon to sustain the plea are of public policy.

A request for service of exhibits shall not constitute a ground for inadmissibility of the pleas.

The provisions of the first sub-article shall not prevent the application of Articles 103, 111, 112 and 118.

 

SECTION I PLEAS AGAINST JURISDICTION

 

SUB-SECTION I LACK OF JURISDICTION RAISED BY THE PARTIES

 

Article 75

 

Where it is alleged that the court seised lacks jurisdiction, the party who shall proffer the plea shall have, under penalty of it otherwise being inadmissible, to provide reasons thereof and to indicate, at all event, court before which the matter should be brought.

 

Article 76

 

The judge may, in one single judgment, but by way of separate dispositions, hold himself competent and rule upon the merits of the dispute provided that he shall put the parties on default notice to plead on the merits in relation to the matter.

 

Article 77

 

Where he does not rule upon the substance of the dispute, but where the determination of a point of jurisdiction shall be dependent upon the substance at issue, the judge shall have to, in the holding of the judgment, rule upon the substantive issue and upon jurisdiction by separate dispositions.

 

SUB-SECTION II APPEAL

 

Article 78

 

Where the judge shall hold himself competent and where he shall rule upon the merits of a case in one judgment, the same may only be impugned by way of appeal, either on the entirety of the holdings where they are amenable to an appeal, or on the ground of jurisdiction where the decision on the merits has been delivered as of first and last resort.

 

Article 79

 

Where the [appeal] court shall reverse the judgment by virtue of the issue of jurisdiction, it shall, nevertheless, rule upon the merits of the case where the impugned decision is amenable to an appeal on its entirety and where the [appeal] court is the proper appellate forum in relation to the lower court which would have been competent in this matter.

Otherwise, in reversing a judgment on the issue of jurisdiction, the [appeal] court shall refer the matter to that other appellate forum jurisdictive over that lower court which would have been competent in this matter as a tribunal of first instance. This decision shall bind the parties and the court before which the matter is remitted.

 

SUB-SECTION III APPELLATE PLEA AGAINST JURISDICTION

 

Article 80

 

Where the judge rules upon a point of jurisdiction without determining the merits of the case, his decision may only be impugned by way of an appellate plea against jurisdiction, even though the judge has resolved the substantive issue determinative of jurisdiction.

Subject to special rules as to expertise, the decision may similarly be impugned only by way of an appellate pleas against jurisdiction where the judge has ruled in relation to the issue of jurisdiction and has given a direction or issued an interim order.

 

Article 81

 

Where the judge holds himself competent, the proceedings shall be stayed until the expiration of the time-limit for lodging the appellate plea against jurisdiction and, where the same is lodged, until that the court of appeal has delivered its decision.

 

Article 82

 

(Decree No. 78-62 of 20 January 1978, sec.16, Official Journal of 24 January 1978)

 

The appellate plea against jurisdiction shall have, under penalty of it otherwise being inadmissible, to set out its grounds and shall be remitted to the clerk's office of the court ad quo which has pronounced the decision within fifteen days therefrom.

Where the appellate plea against jurisdiction are to be lodged subject to court's costs payable to the clerk's office, the lodgment of the same shall be proceeded with only where the appellant has paid into court by consignation an amount covering the costs.

An acknowledgment shall be issued on its lodgment.

 

Article 83

 

(Decree No. 78-62 of 20 January 1978, sec.16, Official Journal of24 January 1978)

 

(Decree No. 82-716 of 10 August 1982, sec. 1, Official Journal of 17 August 1982)

 

The clerk of the court ad quo which has delivered the decision shall notify without delay a copy of the appellate plea to the opponent party by recorded letter with the advice of delivery slip sought and shall likewise inform his representative where he has retained one.

Simultaneously, he shall transmit to the registrar-in-chief of the [appeal] court the file of the case subjoined with the appellate plea and a copy of the judgment.

 

Article 84

 

(Decree No. 82-716 of 10 August 1982, sec. 1, Official Journal of 17 August 1982)

 

 

The first president shall set the date of the hearing, which shall have to take place as soon as possible.

The registrar of the court shall inform the parties by recorded letter with the advice of delivery slip sought.

 

Article 85

 

Parties may, in support of their claims, submit any written argumentation which they shall consider appropriate. Such papers, bearing the imprint of the judge, shall be put on record.

 

Article 86

 

The appeal court shall refer the matter to the one which it shall deem competent. Such decision shall be binding on the parties and on the referral judge.

 

Article 87

 

(Decree No. 76-1236 of 28 December 1976, sec.1, Official Journal of 30 December 1976)

 

(Decree No. 82-716 of 10 August 1982, sec. 1, Official Journal of 17 August 1982)

 

The registrar of the court shall notify the parties of the judgment immediately by recorded letter with the advice of delivery slip sought.

Such judgment may not be amenable to an application to be set aside. The time-limit for a petition in cassation shall run as from the notification of the same.

 

Article 88

 

(Decree No. 78-62 of 20 January 1978, sec.18, Official Journal of24 January 1978)

 

Costs incidental to the appellate plea against jurisdiction shall be borne by the loosing party on the issue of jurisdiction. Where the latter is the originator of the appellate plea against jurisdiction, he may further be ordered to pay a civil penalty of F 100 to F 10,000 without prejudice to any claim for damages and interest which may be brought against him.

 

Article 89

 

Where the [appeal] court is the appellate forum in relation to the lower court which the former shall deem jurisdictive of the matter, the said appeal court may proceed to consider the merits of the case where it shall hold the view that justice commands that a definite solution be brought to the matter at issue, after having issued, should the occasion arise, any necessary directions.

 

Article 90

 

Where it shall decide to hear the substance of the matter, the court shall invite the parties, should the occasion arise, by recorded letter with the advice of delivery slip sought, to retain an avoué within the time-limit that it fixes, where such retainership is required by the rules applicable to appeals against decisions pronounced by the lower court which gave the impugned judgment over the issue of jurisdiction.

Where none of the parties has retained an avoué, the court may ex proprio motu strike out the matter by a reasoned decision which shall not be subject to appeal. A copy of such decision shall be brought to the notice of each of the parties by ordinary letter addressed to their domicile or residence.

 

Article 91

 

(Decree No. 82-716 of 10 August 1982, sec. 1, Official Journal of 17 August 1982)

 

Where the court considers that the decision which is brought before it by way of an appellate plea against jurisdiction should have been brought by way of an appeal, it shall nevertheless be seised of the matter.

The matter shall then be examined and judged according to the rules applicable to appeals against a decision pronounced by the lower court which has been impugned pursuant to the appellate plea.

Where, according to these rules, the parties have to retain an avoué, the appeal shall ex proprio motu be declared inadmissible where the party who proffered the appellate plea against jurisdiction has not retained any avoué within a month of the advice given to the parties by the registrar of the court.

 

SUB-SECTION IV LACK OF JURISDICTION RAISED EX PROPRIO MOTU

 

Article 92

 

(Decree No. 76-1236 of 28 December 1976, sec.2-i and II, Official Journal of 30 December 1976)

 

Lack of jurisdiction may be declared ex proprio motu in cases of contempt of a rule which confers specific jurisdiction to a designated forum where such rule pertains to public policy or where a defendant does not appear. The same may only be declared in the aforementioned cases alone.

Before a court of appeal and the Cour de cassation, lack of jurisdiction may be raised ex proprio motu only where the matter shall appertain to a criminal or administrative court or shall lie outside the cognisance of a French court.

 

Article 93

 

(Decree No. 76-1236 of 28 December 1976, sec.3, Official Journal of 30 December 1976)

 

In non-contentious matters, the judge may raise ex proprio motu his lack of territorial jurisdiction. He may only do so, in contentious matters, in litigations relating to the status of persons in cases where the law ha conferred exclusive jurisdiction to another court or where a defendant does not appear.

 

Article 94

 

An appellate plea against jurisdiction shall be the only means available where a court ruling upon a matter as a court of first instance shall declare itself ex proprio motu as lacking jurisdiction.

   

SUB-SECTION V COMMON PROVISIONS

 

Article 95

 

Where the judge, in considering his jurisdiction, resolves the substantive issue determinative of the same, his ensuing decision shall have the authority of res judicata in relation this substantive consideration.

 

Article 96

 

Where a judge considers that the matter appertains to a criminal, administrative, arbitral or foreign court, he shall only remit the parties thereto to perfect their petition.

At all events, a judge who holds himself as lacking jurisdiction shall designate the forum which he holds competent. This designation shall be binding on the parties and the ad quem referral judge.

 

Article 97

 

(Decree No. 76-1236 of 28 December 1976, sec.4, Official Journal of 30 December 1976)

 

(Decree No. 81-500 of 12 May 1981, sec.10, Official Journal of 14 May 1981)

 

Where there is a remission before a designated forum, the file of the matter shall be transmitted to the latter as soon as possible by the clerk of the court with a copy of the decision to remit. Notwithstanding the above, the transmission shall only be carried out in the absence of an appellate plea against jurisdiction within the time-limit where such mean was available against the decision of to remit.

On receipt of the file, the parties shall be invited by recorded letter with the advice of delivery slip sought by the clerk of the designated forum to prosecute the proceedings and, where the same appears necessary, to retain an avocat or avoué.

Where, before such a forum, the parties are required to be represented, the matter shall be deleted off the list ex proprio motu where none of the parties has retained an avocat or avoué, as appropriate, within a month of the advice given to them.

Where the remission is before the court which was originally seised of the matter, the proceedings shall be prosecuted at the suit of the judge.

 

Article 98

 

A lodgment of an appeal shall be the only mean available against summary interlocutory procedure orders and against a decree of the conciliating judge in matters of divorce or judicial separation.

 

Article 99

 

As an exception to the rules of the present Section, the court may only be seised by way of an appeal where the lack of jurisdiction has been relied upon or raised ex proprio motu on the ground that the matter appertains to an administrative court.

 

SECTION II PLEAS OF LIS ALIBI PENDENS AND AGAINST DOUBLE COGNISANCE

 

Article 100

 

Where a same cause of action is pending before two forums of the same hierarchy equally competent, the court seised last shall relinquish jurisdiction in aid of the first seised one where one of the parties so requests. In default thereof, this may be proceeded with ex proprio motu.

 

Article 101

 

Where matters currently apprised by different forums shall exhibit links between them so that it is in the interest of justice to manage and to determine them together, one of forum seised may be asked to relinquish jurisdiction and to remit the matter as it shall stand before the other.

 

Article 102

 

Where the forums seised are not of the same hierarchy, pleas of litispendens or those against double cognisance may only be raised before the inferior one.

 

Article 103

 

A plea against double cognisance may be brought at any time during the proceedings, save that it may be dismissed where raised at a late stage in a dilatory intention.

 

Article 104

 

Reviews against decisions pronounced in relation to lis alibi pendens or double cognisance by forums of first instance shall be brought and determined in the same manner as in relation to a plea against jurisdiction.

Where there is a multiplicity of reviews, it shall be for the court of appeal seised first to decide, where it upholds the plea, to remit the matter to an another court which in the circumstances shall appear most convenient to have cognisance of the matter.

 

Article 105

 

The decision given on the pleas of exceptions as above, either where pronounced by the court seised or where it is pursuant to an appeal, shall be binding on both the court of remission and on the court which was ordered to relinquish jurisdiction.

 

Article 106

 

Where both courts have relinquished jurisdiction, the decision pronounced last shall be deemed void.

 

Article 107

 

Where on a question of double cognisance, difficulties arise between different panels of the same court, they shall be resolved without any formality by the president. His decision shall be an act of judicial administration.

 

SECTION III DILATORY PLEAS

 

Article 108

 

The judge shall have to stay the proceedings where the party requesting the same has in his favour a certain period in order to carry out an inventory and effect a deliberation or has a vested right of a benefit of discussion or a benefit of divided liability, or has in his favour such other periods as afforded by law.

 

Article 109

 

The judge may grant for the benefit of a defendant a postponement in view of issuing proceedings against a surety.

The proceedings shall resume their course upon the expiration of the time-limit granted for the surety to appear; save that the indemnity claim shall be ruled upon separately where the impleading of the surety was not carried out within the time-limit fixed by the judge.

 

Article 110

 

Further, the judge may stay proceedings where one of the parties shall rely upon a decision which is the subject-matter of an application to set aside, or of a review to reconsider or of a petition in cassation.

 

Article 111

 

The party who has the benefit of a time-limit to draw up an inventory and to effect a deliberation may proffer such other pleas of exceptions after the expiration of such time-limit.

 

SECTION IV PLEAS OF NULLITY

 

SUB-SECTION I NULLITY OF INSTRUMENTS OWING TO FORMAL IMPROPRIETY

 

Article 112

 

The nullity of processual papers may be raised as and when they are served; but their impropriety shall be waived where the person seeking to rely upon the same, has proffered, subsequent to the impugned instrument, a substantive defence or a plea seeking a peremptory declaration of inadmissibility .

 

Article 113

 

Grounds contending to the effect that processual papers shall be null, shall have to be raised simultaneously on pain of inadmissibility of such other grounds which shall not have been raised on that occasion.

 

Article 114

 

No processual paper may be declared null for a formal impropriety where the nullity was not expressly provided for in law, save where there is a failure to observe an essential formality or where it shall pertain to public policy.

Nullity may not be pronounced save where the opponent who relies upon it proves the prejudice the impropriety has caused to him even in the case of an essential formality or where it pertains to public policy.

 

Article 115

 

The impropriety is made right on it being subsequently remedied, where no time-limitation has intervened and where no prejudice shall subsist.

 

Article 116

 

The sanction for failure to observe procedural formality prior to the oral arguments shall be subject to the rules provided in this sub-section.

 

SUB-SECTION II NULLITY OF INSTRUMENTS OWING TO SUBSTANTIVE IMPROPRIETY

 

Article 117

 

Shall constitute substantive impropriety affecting the validity of an instrument:

Lack of capacity to ester in judgment;

Lack of authority of a party or a person appearing in the proceedings as the representative of either a corporate entity or of a person under legal incapacity;

Lack of capacity or authority of a person legally representing a party before a court of law.

 

Article 118

 

Pleas of nullity based on the failure to observe the substantive rules relating to processual papers may be raised at any stage of the proceedings, but the judge may award damages and interest against a party who, in a dilatory intention, failed to raised the same earlier.

 

Article 119

 

Pleas of nullity based on the failure to observe substantive rules relating to processual papers shall be admissible without the party raising them having to prove a prejudice caused to him even where the nullity does not result from express provisions.

 

Article 120

 

Pleas of nullity based on the failure to observe substantive rules relating to processual papers shall have to be raised ex proprio motu where they pertain to matters of public policy.

The judge may raise ex proprio motu the nullity in view of the lack of capacity to ester in judgment.

 

Article 121

 

In cases where it is susceptible of being remedied, nullity shall not be entered where the defect has been remedied at the moment the judge shall rule upon the same.

 

CHAPTER III PEREMPTORY DECLARATION OF INADMISSIBILITY

 

Article 122

 

Shall constitute a plea seeking a peremptory declaration of inadmissibility one which, without an examination on the merits of the case, shall cause to render the opponent's claim inadmissible on the grounds that it does not disclose a right of action, a locus standi or an interest, or it is precluded by virtue of prescription, a determined time-limit or by the operation of res judicata.

 

Article 123

 

A plea seeking a peremptory declaration of inadmissibility may be brought at any stage of the proceedings save that the judge may order damages and interest against those who, in a dilatory intention, failed to raise them earlier.

 

Article 124

 

A plea seeking a peremptory declaration of inadmissibility shall be admissible without the party raising it shall have to prove a prejudice caused to him even where the inadmissibility shall no result from express provisions.

 

Article 125

 

(Decree No. 79-941 of 7 November 1979, sec.5, Official Journal of 9 November 1979 in force on 1 January 1980)

 

A peremptory declaration of inadmissibility shall have to be raised ex proprio motu where it pertains to matters of public policy, and namely where they result from an inobservance of a time-limit within which means of review are to be instituted or where no means of review shall lie.

The judge may raise ex proprio motu the question of a peremptory declaration of inadmissibility where the action lacks interests to suing out.

 

Article 126

 

In the case where the situation giving rise to a peremptory declaration of inadmissibility may be remedied, the inadmissibility shall be set aside where its cause shall no longer exist at the moment the judge shall rule upon it.

The same shall apply where, before the operation of a preclusion to suing out, a person having standing to act shall be joined as a party to the proceedings.

 

TITLE VI SETTLEMENT

 

Article 127

 

Parties may mediate as between themselves a settlement or the same may be engineered by the judge at any time during the proceedings.

 

Article 128

 

A attempt at conciliation may be undertaken, save where special provisions shall apply, at such venue and time as the judge shall deem proper.

 

Article 129

 

Parties may always request the judge to record their settlement.

 

Article 130

 

The tenor of the agreement, even where partial, shall be recorded in a procès-verbal signed by the judge and by the parties.

 

Article 131

 

Abstracts of the procès-verbal recording the agreement may be delivered; they shall be enforceable.

 

TITLE VI B MEDIATION

 

Article 131-1

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

A judge seised of a dispute may, after having received the agreement of the parties, appoint a third person to hear the parties and to confront their points of view so as to allow them to resolve the issues dividing them.

The same power may be exercised by the summary interlocutory procedure judge in the course of a proceeding.

 

Article 131-2

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

Mediation shall relate to the whole or a part of the dispute.

At any event it shall not bring the matter out of the cognisance of the judge who may at any time give all other directions which shall appear necessary to him.

 

Article 131-3

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

 

The initial time-limit for mediation shall not exceed three months. The assignment may be renewed once, for the similar duration, at the suit of the mediator.

 

Article 131-4

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

 

Mediation may be assigned to a natural person or to an association.

Where the appointed mediator is an association, its legal representative shall submit to the approbation of the judge the surname or surnames of the natural person or persons who shall implement the measure on its behalf.

 

Article 131-5

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

 

A natural person implementing mediation shall have to satisfy the following conditions:

1° Not having been the subject of a criminal sentence, of an incapacity or a forfeiture as indicated in the N° 2 criminal record bulletin.

2° Not having been the originator of facts contrary to honour, probity and good virtue which gave rise to disciplinary or administrative sanctions of dismissal, removing off, revocation, or that of a withdrawal of consent or authorisation;

3° To hold, by actual and past occupation, the required qualifications with regard to the nature of the dispute;

4° To show cause of, as the case may be, a training or experience suitable for the practice of mediation;

5° To demonstrate sufficient guarantee of independence necessary to conduct mediation.

 

Article 131-6

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

The decision which orders a mediation shall indicate the agreement of the parties, appoint the mediator and the initial duration of his enterprise and indicate the date at which the matter shall be called for a hearing.

It shall fix the amount of the deposit for the remuneration of the mediator at a level which is the nearest possible to the foreseeable payment and shall designate the party or parties who shall deposit by consignation within the imparted time-limit; where several parties are designated, the decision shall indicate the contribution in relation to consignation of each party.

In default of a deposit by consignation, the decision shall lapse and the proceedings shall be prosecuted.

 

Article 131-7

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

As from the pronouncement of the decision appointing the mediator, the registry of the court shall notify a copy thereof by ordinary letter to the parties and the mediator.

The mediator shall immediately make known to the judge his acceptance in relation to the same.

As soon as he is informed by the registrar of the consignation, he shall have to convene the parties.

 

Article 131-8

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

 

The mediator shall not hold powers to give directions. Notwithstanding the above, he may, with the agreement of the parties and as necessitated by the mediation, hear third persons consenting to the same.

The mediator may not be appointed, in the course of the same proceedings, to implement directions.

 

Article 131-9

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

The natural person who carries out a mediation shall inform the judge of difficulties encountered in the implementation of his assignment.

 

Article 131-10

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

The judge may put an end, at any time, to the mediation on application by a party or on the initiative of the mediator to the same.

The judge may, further, ex proprio motu put an end thereof where the proper progress of the mediation shall seem to have been compromised.

At all events, the matter shall have to be called for a hearing to which the parties shall have to be convened at the suit of the registrar by recorded letter with the advice of delivery slip sought.

At such hearing, the judge, where he puts an end to the assignment of the mediator, may revive the proceedings. The mediator shall be informed of the decision.

 

Article 131-11

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

At the termination of his enterprise, the mediator shall inform in writing the judge that the parties have or not resolve the issues dividing them.

On the day fixed, the matter shall be brought before the judge.

 

Article 131-12

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

At the request of the parties the judge shall approve by way of homologation the agreement that they shall submit before him.

Homologation shall appertain to non-contentious matters.

 

Article 131-13

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

At the termination of his enterprise, the judge shall fix the remuneration of the mediator.

The burden of the cost of the mediation shall be borne as provided under Article 22 of the Act n° 95-125 of the 8 February 1995 relating to the organisation of courts and that of civil, criminal and administrative procedures.

The judge shall grant leave to the mediator to have the amount deposited to the registry to be released to him up to the due limit.

He shall order, where the same appears necessary, the payment of additional sums and shall indicate the party or parties who shall have to provide for it, or the return of the excess amount deposited.

An enforceable title shall be delivered to the mediator on his request.

 

Article 131-14

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

The findings of the mediator and the declarations he has taken down may not be produced nor shall be relied upon in the course of the subsequent proceedings without the agreement of the parties, nor, in any case, be referred to in any other proceedings.

 

Article 131-15

 

(Inserted by Decree No. 96-652 of 22 July 1996, sec.2, Official Journal of 23 July 1996)

 

No appeal shall lie against a decision providing for, renewing the mediation or putting an end to the same.

 

TITLE VII JUDICIAL ADMINISTRATION OF EVIDENCE

 

SUB-TITLE I EXHIBITS

 

CHAPTER I SERVICE OF EXHIBITS BETWEEN PARTIES

 

Article 132

 

The party who shall rely on an exhibit shall be bound to disclose it to the other party to the proceedings.

Service of exhibits shall have to be spontaneous.

In the course of an appeal, a new service of exhibits already on record in relation to the trial of first instance shall not be required. Any party may nevertheless require that he same be complied with.

 

Article 133

 

Where the service of exhibits has not been carried out, the judge may, without any formality, be requested to order such service.

 

Article 134

 

The judge shall fix the time-limit, on pain of a civil penalty should the occasion arise, and the manner of the service, where necessary.

 

Article 135

 

The judge may exclude from the trial those exhibits which have not been served in due time.

 

Article 136

 

The party who does not return the exhibits served may be compelled to do so, ultimately under a civil penalty.

 

Article 137

 

The amount of the civil penalty may be determined by the judge who ordered it.

 

CHAPTER II OBTAINING EXHIBITS HELD BY A THIRD PERSON

 

Article 138

 

Where, during the course of the proceedings, a party wishes to rely on an authentic instrument of record or an instrument under private signature to which he was not a party or a document held by a third party, he may request the judge seised of the matter to order that a certified copy of the same be delivered or that the instrument or document be produced.

 

Article 139

 

The request shall be made without any formality.

The judge, where he shall deem the request to be well-founded, shall order the delivering or production of the instrument or document, its original, or a copy or extract as the case may be thereof, under the conditions and undertakings that he shall determine, should the occasion arise, under a civil penalty.

 

Article 140

 

The decision of the judge shall be enforceable, and where it appears necessary, by the production of the minutes of the same.

 

Article 141

 

In case of difficulty, or where a lawful impediment is raised, the judge who ordered the delivery or the production may, on the informal request made to him, revoke or amend his decision. The third party may appeal against the new decision within fifteen day as from its pronouncement.

 

CHAPTER III SERVICE OF EXHIBITS HELD BY A PARTY

 

Article 142

 

Requests for service of items of evidence held by the parties shall be made, and the service complied with, in accordance with Articles 138 and 139.

 

SUB-TITLE II DIRECTIONS

 

CHAPTER I GENERAL PROVISIONS

 

SECTION I DECISIONS PROVIDING FOR DIRECTIONS

 

Article 143

 

The factual circumstances upon which the resolution of the dispute shall rely upon, may, at the request of the parties or ex proprio motu, be the subject of any directions legally permissible.

 

Article 144

 

Directions may be given at any time in the course the proceedings, ever since the judge is not placed before sufficient material to determine the matter.

 

Article 145

 

Where there is a legitimate reason to preserve or to establish, before any proceedings, the means of proving the factual circumstances upon which the resolution of the dispute shall depend, directions legally permissible may be given at the request of any party further to a petition or by way of a summary interlocutory procedure.

 

Article 146

 

Directions may be given in relation to factual circumstances only where the party shall bring the same lacks the necessary means to proving the same.

In no case may directions be given for the sake of making up a party's deficiency in the presentation of evidence.

 

Article 147

 

The judge shall have to limit his choice of directions as to what shall be sufficient for the resolution of the dispute by endeavouring to select the simplest and least onerous ones.

 

Article 148

 

The judge may combine several directions. He may at any time, even while they are being carried out, decide to add any other necessary order to those which have been given.

 

Article 149

 

The judge may at any time extend or restrict the scope of the prescribed directions.

 

Article 150

 

The decision which gives or amends directions may not be set aside; it may not be impugned independently of the judgment on the merits of the case by way of an appeal or by way of a petition in cassation, save where they are specified by law.

The same shall apply to decisions rejecting a request for a direction or for the variation of those already given.

 

Article 151

 

Where it may not be appealed against independently of the judgment on the merits of the case, the decision may take the form of simple notes recorded on the file or on the transcript of the hearing.

 

Article 152

 

The decision in relation to, in the course of proceedings, the providing or the varying of directions shall not be notified. It shall be likewise in relation to decisions rejecting a request for direction or providing for a variation of those already given. The clerk shall send a copy of the decision by ordinary letter to the defaulting or absent parties at the time of the pronouncement of the decision.

 

Article 153

 

A decision providing for directions may not bring the matter out of the cognisance of a judge.

 

Article 154

 

Directions shall be carried out at the initiative of the judge or of one of the parties according to the rules applicable to each matter on the examination of an extract of a certified copy of a judgment where the same shall apply.

 

SECTION II IMPLEMENTING DIRECTIONS

 

Article 155

 

(Decree No. 98-1231 of 28 December 1998, sec.4, Official Journal of 30 December 1998 in force on 1 March 1999)

 

Directions shall be carried out under the supervision of the judge who provided for them where he does not proceed with the same himself.

Where directions have been provided for by a panel-judge, the supervision shall be exercised by the judge who were entrusted with the management, in default thereof, by the president in relation to the panel-judge where the matter has not been entrusted to any member of the same.

The judge specified in the first sub-article and the panel-judge may further have recourse to a judge appointed in the manner as provided for under Article 155-1.

 

Article 155-1

 

(Inserted by Decree No. 98-1231 of 28 December 1998, sec.5, Official Journal of 30 December 1998 in force on 1 March 1999)

 

 

The president of the court may, in the interest of a good administration of justice, appoint a judge especially entrusted with the supervision the implementation of directions as conferred to a technician in application of Article 232.

 

Article 156

 

The judge may go outside the province of the court's jurisdiction to implement directions or to supervise the same.

 

Article 157

 

Where the remoteness of the parties or person who have to assist with the directions, or the remoteness of the place, shall render travelling to and from it too difficult or too onerous, the judge may request another court of equal or lesser jurisdiction to proceed with all or part of the directions ordered.

The decision shall be transmitted with all useful documents by the clerk of the commissioning court to the commissioned court. On receipt thereof, the prescribed directions shall be proceeded with at the initiative of the commissioned court or of the judge whom the president of the latter court has designated to that effect.

The parties or persons who have to assist in the execution of the directions shall be directly convened or advised by the commissioned court. Parties shall not be required to retain an avocat or avoué before such a court.

Where the directions have been implemented, the clerk's office of the court which proceeded with the same, shall transmit to the commissioning court the procès-verbaux subjoined with documents annexed or objects deposited.

 

Article 158

 

Where several directions have been given, their execution shall be carried out simultaneously wherever possible.

 

Article 159

 

Directions given may be executed immediately.

 

Article 160

 

Parties and third parties who shall have to assist with the directions shall be convened, as the case may be, by the clerk of the judge proceeding with them or by a commissioned expert. The convocation shall be by recorded letter with the advice of delivery slip sought. The parties may likewise be convened by the delivery to their representative of a simple notes.

Parties and third person may also be convened verbally where they are present at the time of the fixing of the date for the implementation of the directions.

Representatives of the parties shall be advised by ordinary letter where they have not been advised verbally or by a memorandum.

Defaulting parties shall be advised by ordinary letter.

 

Article 161

 

The parties may be assisted in the implementation of directions.

They may release themselves from attending their implementation where shall not be caused to testify over the same.

 

Article 162

 

The person who shall represent or assist a party before a court which has given directions may attend its implementation wherever it shall take place, make submissions or present any request relating to its implementation in his absence.

 

Article 163

 

The ministère public may always attend the implementation of directions even where it is not a main party to the action.

 

Article 164

 

Directions to be implemented before the court shall take place in open court or in chambers according to the rules applicable to oral arguments relating to substantive issues.

 

Article 165

 

The judge may proceed with, attend a direction or go outside the court's jurisdiction without being assisted by the clerk of the court.

 

Article 166

 

The judge entrusted to proceed with a direction or to supervise its implementation may give such other directions as would perfect the benefits of the directions already given.

 

Article 167

 

The difficulties encountered in the course of the implementation of directions shall be resolved, at the request of the parties, on the initiative of the commissioned technician, or ex proprio motu, either by the judge proceeding therewith or by the judge entrusted with the supervision its implementation.

 

Article 168

 

The judge shall give an immediate ruling where the difficulty arises during the course of the implementation of a direction with which he is proceeding with or at which he is present.

Otherwise, the judge informally seised shall indicate the date upon which the parties and, should the occasion arise, the commissioned technician, shall be convened by the clerk of the court.

 

Article 169

 

Where there is an intervention in the proceedings by a third person, the clerk of the court shall as soon as possible inform the judge or the technician entrusted with the implementation of the directions.

The intervener shall be given the opportunity to make submissions in relation to the directions which have already been carried out.

 

Article 170

 

Decisions relating to the implementation of directions may not be impugned by way of application to set aside; they may be impugned by way of an appeal or by way of a petition in cassation only where they are brought with the judgment relating to the substantive issue.

They shall take the form of a simple notes recorded on the file or on the transcript of the hearing, or where necessary, of an order or a judgment.

 

Article 171

 

Decisions taken by a commissioned judge or by the supervising judge shall not have the effect of res judicata over a consideration of the merits the case.

 

Article 172

 

As soon as a direction has been implemented, the carriage of proceedings shall be proceeded with at the initiative of the judge.

The latter may, within the limits of his jurisdiction, hear immediately the observations of the parties or closing speeches and rule ex tempore on their claims.

 

Article 173

 

The procès-verbaux, opinions or reports made at the time or following the implementation of a direction shall be addressed or given in the form of the original or a copy thereof to each of the parties by the clerk of the court which provided for them or by the technician who drafted them as the case may be. A note of the same shall be made on the original.

 

Article 174

 

The judge may have a sound, visual or audiovisual recording made of all or part of the directions in relation to which he is proceeding with.

The recording shall be kept by the clerk's office of the court. Each party may, at his own expense, ask to be provided a duplicate, copy or a transcription thereof.

 

SECTION III NULLITIES

 

Article 175

 

The nullity of decision or instruments of implementation relating to directions shall be subject to the provisions governing the nullity of processual papers.

 

Article 176

 

Nullity shall affect only those directions which are the subject-matter of an irregularity.

 

Article 177

 

The directions may be remedied or begun again, even immediately, where the defect can be removed.

 

Article 178

 

An omission or an inaccuracy in a note intended to show the observance of the formalities in relation to a direction shall not render it null, where it is established by every means that the legal requirements have, in fact, been observed.

 

CHAPTER II PERSONAL VERIFICATIONS BY THE JUDGE

 

Article 179

 

The judge may, in any matter, take personal cognisance of the facts at issue, in order to verify them himself, the parties being present or having been convened.

He shall proceed with the findings, evaluations, appraisals or reconstructions which he shall deem necessary and, should the occasion arise, by being present on the situs concerned.

 

Article 180

 

Where he does not proceed therewith immediately, the judge shall fix the venue, day and time for the verification; should the occasion arise, he shall appoint a member of the adjudicating panel to that effect.

 

Article 181

 

The judge may, during the process of verification, at the hearing or in relation to such other venue, call upon the assistance of a technician, or hear the parties or such other person whose testimony is proper to establishing the truth.

 

Article 182

 

A procès-verbal shall be drawn accounting for the findings, evaluations, appraisals, reconstructions or declarations.

The drawing up of the procès-verbal may notwithstanding the above, be substituted by a note in the judgment where the case is adjudged ex tempore as by way of last resort.

 

Article 183

 

A judge who is causing to implement another direction may, even where he is not a member of the adjudicating panel, proceed with the personal verifications which the implementation of the direction shall render appropriate.

 

CHAPTER III PERSONAL APPEARANCE OF THE PARTIES

 

Article 184

 

A judge may, at all events, order the parties, or one of them, to appear in person.

 

Article 185

 

The personal appearance may only be ordered by the adjudicating panel or by a member of such panel entrusted with the management of the case.

 

Article 186

 

Where the personal appearance is ordered by a panel-judge, it may decide that the appearance shall be before one of its members.

Where it is ordered by the judge entrusted with the management, he may proceed with the same himself or decide that the appearance shall be before the adjudicating panel.

 

Article 187

 

The judge, in ordering as above, shall determine the venue, date and time in relation to the personal appearance save where he shall proceed with the same immediately.

 

Article 188

 

Personal appearance may be in chambers.

 

Article 189

 

The parties shall be examined in each other's presence save where the circumstances require them to be examined separately. They shall have to be confronted where one of the parties so requests.

Where the appearance of one party only has been ordered, such party shall be examined in the presence of the other party, save where the circumstances require him to be examined immediately or out of the other party's presence, subject to the absent party's right to be immediately informed of the declarations made by the party so heard.

The absence of a party shall not prevent the testimony of the other.

 

Article 190

 

The parties may be examined in the presence of a technician and be confronted with witnesses.

 

Article 191

 

The parties shall answer personally to questions put to them without being able to read from any notes.

 

Article 192

 

Personal appearances shall take place in the presence of legal representatives of all the parties or on them being called.

 

Article 193

 

The judge shall put, where it seems necessary to him, the questions which the parties shall submit to him after the examination.

 

Article 194

 

A procès-verbal shall be drawn up noting down the statements of the parties and of their absence or refusal to answer.

The drawing up of the procès-verbal may notwithstanding the above, be replaced by a note in the judgment where the case is determined ex tempore as a decision of last resort.

 

Article 195

 

The examined parties shall sign the procès-verbal after having verified or certified that it conforms to their statements in which case the same is mentioned in the procès-verbal. Should the occasion arise, it shall be indicated that the parties refused to sign or to certify the same.

The procès-verbal shall, further, be dated and signed by the judge and, should the occasion arise, by the clerk.

 

Article 196

 

Where one of the parties is unable to be present, the judge who ordered the appearance, or the judge appointed by the adjudicating panel to which he is attached may travel to him after having convened the opponent to the same should the occasion arise.

 

Article 197

 

The judge may order the appearance of incapable persons subject to the rules relating to the capacity of persons and to the administration of evidence as well as their legal representatives or those assisting them.

He may order the appearance of corporate entities including public bodies or public corporations in the person of their authorised representatives.

He may, further, order the appearance of any member or agent of a corporate entity to be examined on facts personal to him as well as those which ought to know by reason of his office.

 

Article 198

 

The judge may draw any conclusion in law from the statements of the parties, from the absence or refusal to answer in relation to a party and establish the same as likely factum probantia.

 

CHAPTER IV STATEMENTS OF THIRD PERSONS

 

Article 199

 

Where testimonial evidence is admissible, the judge shall admit statements from third persons so as to provide guidance to him on the facts at issue in relation to which they have personal knowledge thereof. These statements shall be made in writing or brought by means of an inquiry, depending on whether they are written or oral.

 

SECTION I STATEMENTS IN WRITING

 

Article 200

 

Statements in writing shall be brought forward by the parties or on the request of the judge.

The judge shall make available to the parties those transmitted directly to him.

 

Article 201

 

The statements in writing shall have to be made by persons who fulfil the conditions required to be heard as witnesses.

 

Article 202

 

The statement in writing shall contain an account of facts which the maker thereof has witnessed or which he has personally noticed.

It shall indicate the surname, date and place of birth, domicile and occupation of the maker as well as, where the same appears necessary, his relationship, by blood or by marriage, to the parties, the link of subordination to, of collaboration or joint interests with them.

Further, it shall indicate that it has been drawn up for its production before a court of law and that the maker is aware that any false statement on his behalf shall be punished by criminal sanctions.

The statement shall be written, dated and signed by the hand of its maker. The latter shall have to annex thereto, by way of the original or a photocopy thereof, any official document proving his identity which includes his signature.

 

Article 203

 

The judge may always proceed by means of an inquiry to hear the maker of a statement in writing.

 

SECTION II THE INQUIRY

 

SUB-SECTION I GENERAL PROVISIONS

 

Article 204

 

Where an inquiry is ordered, cause against it may be adduced by way of witnesses without any new decision.

 

Article 205

 

Any person may be heard as a witness save in relation to those rendered unfit owing to a legal incapacity to stand as a witness before a court.

Persons who may not stand as a witness may, notwithstanding the above, be heard under the same conditions but without taking the oath. Notwithstanding the above, descendants may never be heard on the grievances brought before the court in relation to the partners to a marriage in support of a petition for divorce or judicial separation.

 

Article 206

 

Any person called upon to testify shall be bound to do so. Persons exhibiting a legitimate excuse may be exempted from giving their testimony. Parents or relatives in direct line with one of the parties or a partner or previous partners to a marriage, may object to giving testimony.

 

Article 207

 

Defaulting witnesses may be cited at their expense where it is deemed proper that they be heard.

Defaulting witnesses and persons who, without any legitimate excuse, has refused to testify or to take the oath may be ordered to pay a civil fine from F 100 to F 10,000.

A person who shall show cause that he was unable to attend on the appointed day may be exempted from the imposition of the fine and the visit of the expenses of the citation.

 

Article 208

 

The judge shall hear the testimony of the witnesses separately and in the order which he shall determine.

The witnesses shall be heard in the presence of the parties or the latter being called.

As an exception thereto, where the circumstances shall so require, the judge may ask a party not to be present during the testimony of a witness, subject to the right of the latter to have the statements of the latter produced to him immediately thereafter.

The judge may, where there is a risk of the loss of the validity of proof, proceed without delay with a testimony-hearing of a witness after having, wherever possible, called the parties.

 

Article 209

 

An inquiry shall take place in the presence of the legal representatives of the parties or the latter being called.

 

Article 210

 

The witnesses shall state their surname, first names, date and place of birth, domicile, occupation, as well as, should the occasion arise, their relationship by blood or by marriage to the parties, or the link of subordination to, of collaboration or joint interests with them.

 

Article 211

 

Persons who are heard as witnesses shall take the oath to tell the truth. The judge shall remind them that perjury shall be punishable by way of a fine or imprisonment.

Person who are heard without taking the oath shall be informed of their duty to tell the truth.

 

Article 212

 

Witnesses may not read from any notes.

 

Article 213

 

The judge may hear or examine the witnesses on all facts in relation to legally admissible evidence, even where these facts are not stated in the decision ordering the inquiry.

 

Article 214

 

Parties shall neither interrupt, nor question, nor attempt to influence the witnesses who is giving testimony, nor address them directly on pain of being excluded from attending to the same.

After an examination of a witness, the judge shall, where he shall deem it proper, put to the latter questions submitted to him on behalf of the parties.

 

Article 215

 

The judge may recall the witnesses and may confront them with each other or with the parties; should the occasion arise, he shall proceed with a hearing in the presence of a technician.

 

Article 216

 

Save where they have been permitted or directed to leave after having given their testimony, witnesses shall remain at the disposition of the judge until the close of the inquiry or the hearing. They may, until such time, add to or alter their testimony.

 

Article 217

 

Where a witness proves that it is impossible for him to travel on the appointed day, the judge may allow him a time-limit or travel himself toward the former to receive his testimony.

 

Article 218

 

The judge who proceeds with an inquiry may, ex proprio motu or at the request of the parties, convene or hear any person should he deem the same material for the manifestation of the truth.

 

Article 219

 

The testimony shall be recorded in a procès-verbal.

Notwithstanding the above, where the testimony is received in the course of the hearing, a note shall simply be made in the judgment of the surname of the persons heard and the result of their testimony where the matter must immediately be adjudged as of last resort.

 

Article 220

 

The procès-verbal shall have to make a note of the presence or absence of the parties, the surname, first names date and place of birth, domicile and occupation of the parties heard as well as, should the occasion arise, the oath taken by them and of their statements relating to their relationship to the parties, the link of subordination to, of collaboration or joint interests with them.

Each person heard shall sign the procès-verbal in relation to his testimony after having verified or certified that it conforms with the same, in which case a note shall be made thereof in the procès-verbal. Should the occasion arise, a note shall be made in relation to his refusal to sign or to certify.

The judge may note in the procès-verbal his findings in relation to the behaviour of a witness during a testimony-hearing.

The comments of the parties shall be noted down in the procès-verbal, or shall be annexed to it where they are in writing.

Documents presented at the inquiry shall also be annexed to the same.

The procès-verbal shall be dated and signed by the judge and, should the occasion arise, by the clerk of the court.

 

Article 221

 

The judge shall grant leave to the witness, at his request, to seek such expenses in relation to which he is entitled to being paid.

 

SUB-SECTION II ORDINARY INQUIRY

 

§ 1 Determination of facts to be proved

 

Article 222

 

The party requesting an inquiry shall have to state the facts he shall substantiate.

It shall belong to the judge who orders the inquiry to determine the material facts to be proved.

 

§ 2 Designation of witnesses

 

Article 223

 

It shall be incumbent upon the party who requests an inquiry to state the surname, first names and domicile of the persons they intend to produce as witnesses.

The same burden shall be incumbent upon the opponents who intend to produce witness to in relation to those facts they contemplate substantiating.

A decision ordering an inquiry shall indicate the surname, first names and domicile of persons to be heard.

 

Article 224

 

Where the parties are unable to specify at the onset the persons to be heard, the judge may nevertheless grant them leave to attend, without any further formality, the inquiry with those person they intend to produce as witnesses, or to inform the clerk's office of the court, within a time-limit as specified by the aforementioned judge, of the surname, first names and domicile of the persons they intend to produce as witnesses.

Where the inquiry has been ordered ex proprio motu, the judge, where he cannot indicate in his order the surname of the witnesses to be heard, shall direct the parties to proceed as set out in the previous sub-article.

 

§ 3 DETERMINATION OF THE MANNER AND THE TIMETABLE OF THE INQUIRY

 

Article 225

 

A decision ordering an inquiry shall specify whether it be conducted before the adjudicating panel, a member of such panel, or, should the occasion arise, before any other judge of the court.

 

Article 226

 

Where the inquiry shall take place before the judge who ordered it, or before one of the members of the adjudicating panel, the decision shall indicate the day, time and venue where it will be proceeded with.

 

Article 227

 

Where the judge designated by the court is not a member of the adjudicating panel, the decision which ordered the inquiry may limit itself to an indication of the time-limit within which it shall have to be proceeded with.

Where the same is by way of a commission on behalf of another court, the decision shall specify the time-limit within which the inquiry shall have to be proceeded with. Such time-limit may be extended by the president of the commissioned court and he shall inform the judge who ordered the inquiry thereof.

The commissioned judge shall fix the day, time and venue of the inquiry.

 

§ 4 SUBPOENA OF WITNESSES

 

Article 228

 

Witnesses shall be subpoenaed by the clerk of the court at least eight days before the date of the examination.

 

Article 229

 

The subpoenas shall indicate the surname and first names of the parties and shall reproduce the provisions of the first two sub-articles of Article 207.

 

Article 230

 

The parties shall be notified of the date of the inquiry verbally or by ordinary letter.

 

SUB-SECTION III THE IMMEDIATE INQUIRY

 

Article 231

 

The judge may, at the hearing or in chambers, as well as in any other venue where a direction is being carried out, hear immediately those persons whose testimony he deems proper in view of establishing the truth.

 

CHAPTER V DIRECTIONS CARRIED OUT BY A TECHNICIAN

 

SECTION I COMMON PROVISIONS

 

Article 232

 

The judge may commission any person of his choice to provide guidance to him by way of observations, consultation or by way of an expertise on a question of fact which calls for the guidance of a technician.

 

Article 233

 

The technician, empowered by the judge by reason of his qualifications shall have to fulfil personally the enterprise entrusted to him.

Where the appointed technician is a corporate entity, its authorised representative shall submit, for the judge's approval, the surname of the person or persons within its ranks who will ensure the implementation of the direction on its behalf.

 

Article 234

 

The technicians may be recused for the same causes as judges. Where it is a corporate entity, the recusal may be directed against the corporate entity as well as against the natural person or persons approved by the judge.

The party who intends to recuse a technician shall have to do so before the judge who appointed him, or before the judge entrusted with the supervision prior to the implementation of the directions or otherwise shall do so on the discovery of a cause of recusal.

Where the technician shall consider himself to be recusable, he shall have to declare the same immediately to the judge who commissioned him or to the judge entrusted with the supervision.

 

Article 235

 

Where a recusal is justified, where a technician refuses an assignment, or where there exists a lawful impediment, the judge who commissioned the latter or the judge entrusted with the supervision of the operations shall replace the technician.

The judge may also, at the request of the parties or ex proprio motu, replace the technician who has failed in his duties after caused him to provide explanations in relation to the same.

 

Article 236

 

The judge who has commissioned the technician or the judge entrusted with the supervision may add to or restrict the assignment entrusted to the technician.

 

Article 237

 

The commissioned technician shall have to fulfil his enterprise conscientiously, objectively and impartially.

 

Article 238

 

The technician shall have to give his opinion on the points he has been commissioned to examine.

He may not consider other questions except by virtue of a written agreement by the parties.

He shall never express an opinion on a point of law.

 

Article 239

 

A technician shall have to respect the time-limits imparted to him.

 

Article 240

 

A judge may not confer upon a technician such an assignment as to reconcile the parties.

 

Article 241

 

The judge entrusted with the supervision of the operations may attend those of the technician.

He may cause him to provide explanations and impart a time-limit to him.

 

Article 242

 

The technician may receive oral or written information from any person as long as their surname, first names, domicile and occupation are specified as well as, where the same appears necessary, his relationship, by blood or by marriage, to the parties, the link of subordination to, of collaboration or joint interests with them.

Where the commissioned technician or the parties request that these persons be heard by the judge, the latter shall proceed to hear them where he considers such useful.

 

Article 243

 

The technician may request any documents from the parties or third persons and the judge may provide for the same in case of difficulty.

 

Article 244

 

The technician shall have to make known in his opinion all the information which shall provide guidance on the area he has examined.

He shall be forbidden to reveal other information which might have come to his knowledge in the course of implementing his enterprise.

He may only refer to information lawfully received.

 

Article 245

 

(Decree No. 89-511 of 20 July 1989, sec.2, Official Journal of 25 July 1989 in force on 15 September 1989)

 

The judge may always invite the technician to complete, clarify or to explain his observations or conclusions either in writing or at the hearing.

The technician may at any time seek a hearing before the judge.

The judge may not, without having been put before the observations of the commissioned technician, add to the assignment of the latter or confer a complementary assignment upon another technician.

 

Article 246

 

The judge shall not be bound by the observations or conclusions of the technician.

 

Article 247

 

Where the publicity of the technician's opinion shall cause to invade the privacy of personal lives or any other legitimate interest, it may not be used for any other purpose other than in relation to the proceedings except with a judge's permission or with the consent of the party concerned.

 

Article 248

 

The technician may not receive remuneration directly from one party in any form whatsoever even as a reimbursement of outlays save where so ordered by the judge.

 

SECTION II REPORTING OF FACTS

 

Article 249

 

The judge may entrust the persons he has commissioned to proceed with the finding of facts.

The examiner shall not formulate any opinion on the factual and legal consequences which may result therefrom.

 

Article 250

 

Fact-findings may be ordered at any time including at the conciliation stage or during the deliberation. In the latter event, the parties shall be advised of the same.

The findings of fact shall be recorded down in writing save where the judge shall decide for their oral presentation.

 

Article 251

 

The judge who orders a fact-finding exercise shall fix the time-limit within which a report of the same shall have to be presented or the date of the hearing at which the an oral report shall have to be presented. He shall designate the party or parties who will be bound to provide for an interim payment for remuneration of the examiner, which shall be fixed by the judge.

 

Article 252

 

The examiner shall be notified of his assignment by the clerk of the court.

 

Article 253

 

The report shall be delivered to the clerk of the court.

A procès-verbal shall be drawn up of the reporting presented verbally. The drawing up of the procès-verbal may, notwithstanding the above, be replaced by a note made in the judgment where the matter is adjudged immediately at last resort.

Documents in support of the fact-finding shall be included in the file of the matter.

 

Article 254

 

Where a fact-finding has been ordered during the deliberations, the judge, following the implementation of the direction, shall order the reopening of the hearing where one of the parties so requests or where the judge considers it necessary.

 

Article 255

 

The judge shall fix the payment to the examiner on proof of the completion of his enterprise. He may deliver to him an enforceable title.

 

SECTION III CONSULTATION

 

Article 256

 

Where a purely technical question does not require complex investigations, the judge may entrust the person he shall commission to provide him with a simple opinion.

 

Article 257

 

A consultation may be ordered at any time including during conciliation stage or during the deliberations. In the latter case, the parties shall be informed thereof.

The opinion shall be presented orally save where the judge requires it to be submitted in writing.

 

Article 258

 

The judge who orders an opinion shall fix the date of the hearing at which it shall be presented orally or the time-limit within which it shall be submitted.

He shall designate the party or parties who will be bound to give a sum on accounts to the consultant for his payment, the amount of which shall be fixed by the judge.

 

Article 259

 

The consultant shall be notified of his assignment by the clerk of the court who will convene him should the occasion arise.

 

Article 260

 

Where the opinion is given orally, it shall be recorded in a procès-verbal. The drawing up of the procès-verbal may, notwithstanding the above, be replaced by a note made in the judgment where the matter is adjudged immediately as of last resort.

Where the opinion is written, it shall be delivered to the clerk's office of the court.

The documents in support of the opinion shall be included in the file of the matter.

 

Article 261

 

Where the opinion has been ordered during the deliberations, the judge, following the implementation of the direction, shall order the reopening of the hearing where one of the parties so requests or where the judge shall deem it proper.

 

Article 262

 

The judge shall fix, on proof of the completion of the enterprise, the remuneration due to the consultant. He may deliver to him an enforceable title.

 

SECTION IV EXPERTISE

 

Article 263

 

An expertise shall not be ordered except in cases where a finding of fact or consultation would not be sufficient to provide guidance to the judge.

 

SUB-SECTION I THE DECISION PROVIDING FOR THE EXPERTISE

 

Article 264

 

Only one person shall be appointed as an expert, save where the judge shall deem it proper to appoint several persons.

 

Article 265

 

The decision which provides for the expertise shall:

Set out the circumstances which shall make an expertise necessary and, where applicable, which shall make the appointment of several experts necessary;

Surname the expert or experts;

Specify the field of the enterprise of the expert;

Prescribe the time-limit within which the expert shall have to give his opinion.

 

Article 266

 

The decision may also specify a date on which the expert and the parties shall have to appear before the judge who has delivered the same or before the judge entrusted with the supervision of the operations so that the enterprise and, should the occasion arise, the timetable of the operations, may be determined.

Documents useful for the expertise shall be given to the expert at this conference.

 

Article 267

 

(Decree No. 89-511 of 20 July 1989, sec.3, Official Journal of 25 July 1989 in force on 15 September 1989)

 

 

As soon as the decision appointing the expert is delivered, the clerk of the court shall transmit to him a copy thereof by ordinary letter.

The expert shall without delay notify to the judge of his acceptance; he shall have to commence the expert operations as soon as he has been informed that the parties has deposited by consignation the sum for which they are held to contribute, or the amount of the first instalment as due under the consignation order, save where the judge directs him to start immediately his operations.

 

Article 268

 

The files of the parties or the documents necessary to the expertise shall provisionally be kept at the clerk's office of the court subject to the authorisation of the judge to the parties who submitted them to withdraw certain parts or to have copies delivered to them. The expert may consult them even before accepting his assignment.

From the moment of his acceptance, the expert may, on a marginal imprint or on the issuance of an acknowledgement, withdraw the files or documents of the parties or have them transmitted to him by the clerk of the court.

 

Article 269

 

(Decree No. 89-511 of 20 July 1989, sec.4, Official Journal of 25 July 1989 in force on 15 September 1989)

 

The judge who orders the expertise or the judge entrusted with the supervision shall fix, at the time of the expert is appointed or as soon as he is able to do it, the amount of the sum to be put on accounts for the payment of the expert as near as possible to the foreseeable final payment. He shall nominate the party or parties who shall have to deposit the sum on accounts to the registry of the court within the time-limit which he shall fix; where several parties are named, he shall indicate in what proportion each of the parties shall have to deposit. He shall, should the occasion arise, adjust the instalments whereby the deposit may be constituted.

 

Article 270

 

(Decree No. 89-511 of 20 July 1989, sec.5, Official Journal of 25 July 1989 in force on 15 September 1989)

 

The registrar shall invite the parties who are held to contribute to the consignation, in reminding to them the provisions of Article 271, to deposit the sum on accounts to the registry within the time-limit and in the manner specified.

He shall inform the expert of the deposit.

 

Article 271

 

(Decree No. 89-511 of 20 July 1989, sec.5, Official Journal of 25 July 1989 in force on 15 September 1989)

 

In default of consignation within the time-limit and in the manner specified, the appointment of the expert shall lapse save where the judge, at the request of one of the parties availing himself of a lawful excuse, shall grant a further time-limit or shall discharge the operation of lapsing. The proceedings shall continue but it may be drawn from the abstention or refusal to deposit any such inference as appropriate.

 

Article 272

 

The decision ordering the expertise shall be appealable independently of the judgment on the merits of the case by leave of the first president of the court of appeal where serious and legitimate reasons are shown.

The party who wishes to appeal shall seise the president who shall give a ruling in the form of a summary interlocutory procedure. The summons shall have to be served within one month of the decision.

Where he allows the request, the first president shall fix the day where the matter shall be examined by the court, which shall be seised and shall give a ruling as in matters of a fixed-date procedure or as is provided under Article 948, as the case may be.

Where the judgment providing for the expertise has also ruled upon the issue of jurisdiction, the [appeal] court may be seised of the challenge in relation to jurisdiction even though the parties had not filed an appellate plea against jurisdiction.

 

SUB-SECTION II OPERATIONS OF EXPERTISE

 

Article 273

 

(Decree No. 98-1231 of 28 December 1998, sec.6, Official Journal of 30 December 1998, in force on 1 March 1999)

 

The expert shall have to inform the judge of the progress of his operations and the steps taken by him.

 

Article 274

 

Where the judge attends the operation of the expertise, he may record in a procès-verbal his observations, the explanations of the expert as well as the statements of the parties and of third persons; the procès-verbal shall be signed by the judge.

 

Article 275

 

(Decree No. 98-1231 of 28 December 1998, sec.7, Official Journal of 30 December 1998, in force on 1 March 1999)

 

The parties shall have to deliver without delay to the expert all documents which the latter shall deem necessary for the performance of his enterprise.

Where there parties have defaulted, the expert shall inform the judge thereof and the latter may order the production of documents, should the occasion arise, subject to a civil penalty, or, as the case may be, grant leave to him to proceed with the matter and to submit his report as it stands. The trial court may draw any such inference in law in relation to the failure to produce the necessary documents to the expert.

 

Article 276

 

The expert shall have to take into consideration the observations or assertions of the parties, and, where they are written, shall attach them to his report where the parties so request.

He shall have to indicate in his report the weight he has attached to them.

 

Article 277

 

Where the ministère public is present at the operations of the expertise, its observations shall, at its request, be recited in the expert's opinion as well as the weight which it has attached to them.

 

Article 278

 

The expert may take the initiative of obtaining the opinion of another technician, but only in a specialised field different from his own.

 

Article 279

 

Where the expert encounters difficulties which shall obstruct the completion of his enterprise, or where an extension seems necessary, he shall so report to the judge.

The latter in his ruling may extend the time-limit within which the expert shall have to give his opinion.

 

Article 280

 

(Decree No. 89-511 of 20 July 1989, sec.6, Official Journal of 25 July 1989 in force on 15 September 1989)

 

The expert who shows to have made progress may be granted leave to draw a partial payment on the sum deposited.

Where the expert shows that the sum on accounts allocated is insufficient, the judge shall order the deposit of a further sum on accounts. In default of a deposit within the time-limit and in the manner specified by the judged, and save where there is an extension of such a time-limit, the expert shall submit his opinion as it stands.

 

Article 281

 

Where the parties have reached a settlement, the expert shall record that his enterprise has become pointless; he shall so report to the judge.

The parties may request the judge to deliver an enforceable certificate in relation to the document containing their agreement.

 

SUB-SECTION III THE EXPERT'S OPINION

 

Article 282

 

Where his opinion does not need to be explained in writing, the judge may grant leave to the expert to present it orally at the hearing; a procès-verbal shall be drawn in relation to the same. The drafting of the procès-verbal may, notwithstanding the above, be substituted by a note in the judgment where the matter is adjudged ex tempore at last resort.

Otherwise, the expert shall have to file a report to the clerk's office of the court. Only one report shall be drawn up even where there are several experts; in case of dissent, each one shall give his view.

Where the expert has obtained the opinion of another expert in a different field as that of his own, such opinion shall be attached, as the case may be, to the expert's report, the procès-verbal of the hearing or to the file of the matter.

 

Article 283

 

Where the judge does not find in the report matters as to guide him, he may hear the expert, the parties being present or called.

 

Article 284

 

(Decree No. 89-511 of 20 July 1989, sec.7, Official Journal of 25 July 1989 in force on 15 September 1989)

 

(Decree No. 98-1231 of 28 December 1998, sec.8, Official Journal of 30 December 1998, in force on 1 March 1999)

 

 

Since the filing of the report, the judge shall fix the payment of the expert, and namely in relation to the steps taken, the respect of the time-limit imparted and the quality of the work furnished.

He shall grant leave to the expert to be paid up to the amount of the sums deposited at the registry. He shall order, as the case may be, either the payment of additional sums due to the expert in indicating the party or parties who shall provide for the same, or the restitution of the excess amount as deposited.

Where the judge considers fixing the payment of the expert at an amount less than the sum requested, he shall first have to invite the expert to submit his comments in relation to the same.

The judge may deliver to the expert, at his request, an enforceable title.

 

Article 284-1

 

(Decree No. 89-511 of 20 July 1989, sec.8, Official Journal of 25 July 1989 in force on 15 September 1989)

 

Where the expert so requests, a copy of the judgment delivered upon consideration of his opinion may be delivered or given by the registrar.

 

SUB-TITLE III DISPUTES RELATING TO DOCUMENTARY EVIDENCE

 

 

 

SUB-SECTION I THE INCIDENTAL PLEA OF VERIFICATION

 

Article 285

 

Verification of handwriting under private signature shall pertain to the jurisdiction of the judge seised of the main issue where it is requested incidentally.

It shall pertain to the jurisdiction of the Tribunal de grande instance where it is requested as a main issue.

 

Article 286

 

A plea of forgery against an authenticated instrument of record shall pertain to the jurisdiction of the judge seised of the main issue where it is brought incidentally before the Tribunal de grande instance and the Court of Appeal.

In other cases, a plea of forgery shall pertain to the jurisdiction of the Tribunal de grande instance.

 

SECTION I VERIFICATION OF HANDWRITING

Article 287

 

Where one of the parties denies the handwriting that is attributed to him, or declares that he does not recognise that which is attributed to its author, the judge shall verify the impugned handwriting save where he is able to make a ruling without taking it into account. Where the impugned writing relates only to certain points of the claim, the judge may rule upon the other points.

 

Article 288

 

It shall belong to the judge to proceed with the verification of the handwriting in the light of the material at his disposition after having directed the parties, should the occasion arise, to produce all documents so that he may compare them, and under his supervision, to have samples of handwriting made up.

 

Article 289

 

Where he does not rule ex tempore, the judge shall retain the handwriting to be verified and the exhibits for comparison or shall order them to be deposited at the clerk's office of the court.

 

Article 290

 

Where it is useful to compare the impugned handwriting with such instruments in the possession of third persons, the judge may order, even ex proprio motu and under a civil penalty, that those instruments be deposited at the clerk's office of the court in the form of the originals or copies thereof.

He shall give all the necessary directions, and namely those relating to the preservation, consultation, reproduction, return or restoration of the instruments.

 

Article 291

 

Where necessary, the judge shall order the personal appearance of the parties and, should the occasion arise, in the presence of a consultant or shall give any direction.

He may hear the alleged author of the impugned handwriting.

 

Article 292

 

Where a technician is called upon, the latter may be granted leave by the judge to take out the impugned handwriting and the exhibits for comparison, on a marginal imprint of the same having been entered, or to have the same transmitted to him by the clerk of the court.

 

Article 293

 

Persons who witnessed the impugned instrument being written or signed or those whose hearing appear useful in eliciting the truth, may be heard as witnesses.

 

Article 294

 

The judge shall rule upon the difficulties in carrying out the verification of the writing, in particular as to the determination of exhibits for comparison.

His decision shall take the form either of simple notes recorded on the file or in the minutes of the hearing, or, where necessary, of an order or a judgment.

 

Article 295

 

Where it is ruled that the instrument was written or signed by the person who denied it, the latter shall be ordered to pay a civil fine of between F 100 and F 10,000 without prejudice to damages and interests which may be claimed.

 

SUB-SECTION II THE VERIFICATION OF HANDWRITING REQUESTED AS A MAIN ISSUE

 

Article 296

 

Where the verification of a handwriting is raised as a main claim, the judge shall consider the handwriting as recognised where the defendant, cited in person, does not appear.

 

Article 297

 

Where the defendant recognises the handwriting, the judge shall find for the claimant.

 

Article 298

 

Where the defendant denies or does not recognise the handwriting, the procedure set out under Articles 287 to 295 shall be followed.

It shall be likewise where the defendant who has not been cited in person fails to appear.

 

SECTION II FALSIFICATION

 

SUB-SECTION I THE PLEA OF FALSIFICATION

 

Article 299

 

Where a writing under private signature produced in the course of the proceedings is alleged to be forged, the examination of the impugned writing shall be carried out as it is provided under Article 287 to 295.

 

SUB-SECTION II FORGERY RAISED AS A MAIN CONTENTION

 

Article 300

 

Where the allegation of forgery of a writing under private signature is raised as a main claim, the summons shall indicate the grounds for the allegation and shall convey a precept to the defendant to the effect that the latter shall declare whether or not he intends to rely upon the instrument alleged to be forged or falsified.

 

Article 301

 

Where the defendant declares that he does not wish to use the writing alleged to be forged, the judge shall find for the claimant.

 

Article 302

 

Where the defendant does not appear or where he declares that he wishes to use the impugned writing, the procedure shall be carried out as provided under Articles 287 to 295.

 

CHAPTER II PLEA OF FORGERY AGAINST AUTHENTIC INSTRUMENT OF RECORD

 

Article 303

 

A plea of forgery against an authentic instrument of record shall be communicated to the ministère public.

 

Article 304

 

The judge may order the hearing of the person who drew up the impugned instrument.

 

Article 305

 

The claimant whose plea of forgery fails shall be ordered to pay a civil fine of F 100 to F 10,000 without prejudice to damages which may be claimed.

 

SECTION I THE INCIDENTAL PLEA OF A FORGERY AGAINST AN AUTHENTIC INSTRUMENT OF RECORD

 

SUB-SECTION I THE INCIDENTAL PLEA RAISED BEFORE THE TRIBUNAL DE GRANDE INSTANCE OR THE COURT OF APPEAL

 

Article 306

 

(Decree No. 82-716 of 10 August 1982, sec.1, Official Journal of 17 August 1982)

 

The plea of forgery shall be entered by filing with the clerk's office-registry of a process by the party or his agent specially empowered.

The process, in duplicate, shall have, under penalty of it otherwise being inadmissible, to state precisely the grounds which the party shall rely upon to establish the forgery.

One of the copies shall immediately be placed in the file of the matter and the other, dated and imprinted with a seal by the registrar, shall be returned to the party in order to give notice of the plea to the defendant.

The notice shall have to be made by service to and by avocat or by signification to the opposing party within one month as from the making of the plea.

 

Article 307

 

The judge shall rule upon the forgery save where he decides the case without taking into consideration the exhibit alleged to be forged.

Where the alleged instrument to be forged relates only to one of the heads of the claim, the judge may rule upon the other heads.

 

Article 308

 

It shall belong to the judge to admit or reject the impugned instrument in the light of the material at his disposal.

Should the occasion arise, the judge shall give, as to the forgery, all directions necessary and it shall be proceeded with as in matters of verification of handwriting.

 

Article 309

 

The judge shall rule in the light of the grounds stated by the parties and of those raised ex proprio motu.

 

Article 310

 

The judgment declaring the forgery shall be noted in the margin of the instrument recognised as forged.

It shall specify whether the original of the authentic instrument of record will be returned to the depository from which it was obtained or will be kept at the clerk's office-registry.

The implementation of these provisions shall be stayed as long as the judgment has not become res judicata or until the acquiescence of the losing party.

 

Article 311

 

Where there is a withdrawal or settlement in relation to the plea of forgery, the ministère public may require all measures proper to prosecuting a criminal action.

 

Article 312

 

Where criminal proceedings are brought against the perpetrators of or accomplices to the forgery, the civil judgment shall be deferred until after the criminal decision has been given, save where the main issue may be ruled upon without taking into account the exhibit alleged to be forged or save where there has been a withdrawal or settlement as to the forgery.

 

SUB-SECTION II THE INCIDENTAL PLEA RAISED BEFORE OTHER COURTS

 

Article 313

 

Where the plea is raised before a court other than the Tribunal de grande instance or the court of appeal, the judgment shall be stayed until a ruling on the issue of falsification has been given, save where the impugned exhibit has been withdrawn so as it is possible to rule upon the main issue without taking the same into consideration.

The plea of forgery shall be proceeded with as provided under Articles 314 to 316. The process entering the plea of forgery shall have to be lodged at the clerk's office-registry of the Tribunal de grande instance within the month of the decision to stay the judgment, failing which the plea shall be disregarded and the impugned instrument shall be considered to have been accepted as valid between the parties.

 

SECTION II THE PLEA OF FORGERY AS A MAIN CONTENTION

 

Article 314

 

The main claim of forgery shall be preceded by a plea of forgery entered as set out under Article 306.

A copy of the process entering the plea shall be attached to the summons which shall contain a precept to the defendant to declare whether or not he intends to rely upon the instruments alleged to be forged or falsified.

The summons shall have to be served within one month of the plea of forgery being entered under penalty of it otherwise being lapsed.

 

Article 315

 

Where the defendant shall declare that he does not wish to use the instrument alleged to be false, the judge shall acknowledge the point in favour of the claimant.

 

Article 316

 

Where the defendant fails to appear or to declare that he wishes to use the impugned instrument, it shall be proceeded with as provided under Articles 287 to 294 and 309 to 312.

 

SUB-TITLE V THE IN-COURT OATH

 

Article 317

 

The party who invite that evidence shall be taken on oath shall set forth the facts in relation to which it shall be taken.

The judge shall order evidence on oath where it is permissible and shall specify the facts on which it shall be taken.

 

Article 318

 

Where the oath is called for ex proprio motu, the judge shall determine the facts in relation to which it shall be taken.

 

Article 319

 

The judgment which orders the oath shall fix the date, time and venue where it shall be taken. It shall formulate the question in relation to which the oath is to be taken and shall point out that perjury will expose a witness to criminal sentences.

Where the oath is called for in relation to a party, the judgment shall specify further that the party in relation to whom the oath is called for has failed in his claim where he refuses to take the oath and fails to request one in return.

In all cases, the judgment shall be notified to the party in relation to whom the oath is called for as well as to his agent should the occasion arise.

 

Article 320

 

An appeal shall lie against the judgment which orders or refuses to order a decisive oath independently of the decision on the substantive issue.

 

Article 321

 

The oath shall be taken by the party in person and at the hearing.

Where the party shows that he is unable to travel, the oath may be taken either before a judge commissioned for that purpose who shall travel to the residence of the party, assisted by the clerk or before the court of his place of residence.

At all events, the judgment shall be notified to the party in relation to whom the oath is called for as well as to his agent should the occasion arise.

 

Article 322

 

The person duly authorised as a legal representative may not request an oath without showing a special power.

 

TITLE VIII MULTIPLE PARTIES

 

Article 323

 

Where the claim is made by or against several persons with a common interest, each of them shall exercise and discharge insofar as they relate to him, the rights and obligations of parties to the proceedings.

 

Article 324

 

(Decree No. 79-941 of 7 November 1979, Official Journal of 9 November 1979 in force on 1 January 1980)

 

 

The acts performed by or against the persons with a common interest shall neither benefit nor prejudice the others subject to the provisions of Articles 474, 475, 529, 552, 553 and 615.

 

TITLE IX INTERVENTION

 

Article 325

 

An intervention shall not be allowed save where it is connected to the claims of the parties by a sufficient link.

 

Article 326

 

Where the intervention may delay excessively the judgment on the whole, the judge shall first rule upon the main cause of action and thereafter consider the intervention.

 

Article 327

 

The intervention at first instance or on appeal shall be voluntary or compelled.

Before the Cour de cassation, only a voluntary intervention shall be admissible where it is accessory.

 

CHAPTER I THE VOLUNTARY INTERVENTION

 

Article 328

 

The voluntary intervention shall be principal or accessory.

 

Article 329

 

The intervention shall be principal where it raises a claim to the benefit of the party filing it.

It shall be admissible only where the party filing it has the right to bring an action with regard to that claim.

 

Article 330

 

The intervention shall be accessory where it supports the claims of a party.

It shall be admissible where its originator, in order to preserve his rights, has an interest in supporting that party.

The accessory intervener may unilaterally withdraw his intervention.

 

CHAPTER II COMPELLED INTERVENTION

 

SECTION I PROVISIONS COMMON TO ALL THIRD-PARTY PROCEEDINGS

 

Article 331

 

A third party may be joined for the purpose of being cast in judgment by any party who has the right to bring a claim against the former.

He may likewise be sued out by a party who has an interest in making the judgment common to them all.

The third party shall have to be called in good time to establish his defence.

 

Article 332

 

The judge may invite the parties to issue proceedings against all interested persons whose presence seems to him necessary for the resolution of the dispute.

In non-contentious matters, he may order proceedings to be issued against persons whose rights or duties may be affected by the decision to be taken.

 

Article 333

 

The third party against whom proceedings have been issued shall be bound to proceed before the court seised of the original claim without being able to challenge the territorial jurisdiction of the court even by relying upon an argument of specific jurisdiction attributable to another forum.

 

SECTION II SPECIAL PROVISIONS FOR CONTRIBUTION NOTICES

 

Article 334

 

The contribution shall be simple or formal depending on whether the defendant seeking the contribution is himself being sued as being personally liable or only as holder of a property.

 

Article 335

 

The defendant seeking a simple contribution shall remain the main party.

 

Article 336

 

The defendant in formal contribution may always request his withdrawal and that the person standing liable be substituted for as the main party.

The defendant seeking a contribution, notwithstanding the above, although allowed not to stand as a main party may remain in the case to preserve his rights; the original defendant may ask that he remains in the case to preserve his.

 

Article 337

 

The judgment delivered against the formal co-defendant standing liable may, in all cases, be executed against the person seeking the contribution on the sole condition that he has been notified.

 

Article 338

 

The taxable charges shall be recoverable against the person seeking the contribution only in case of the insolvency of the formal person standing liable to the contribution and on condition that the person seeking the contribution remained in the case, even on an accessory basis.

 

TITLE IX B TESTIMONY OF A CHILD BEFORE A COURT OF JUSTICE

 

Article 338-1

 

(Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

(Decree No. 94-42 of 14 January 1994, sec.22, Official Journal of 16 January 1994 in force on 1 February 1994)

 

 

Where a minor requests to be heard by virtue of Article 388-1 of the Civil Code, the provisions as hereinafter shall be applicable.

 

Article 338-2

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

The request shall be made without any formality to the judge by the interested person. It may be made at any stage of the proceedings and even for the first time on appeal.

 

Article 338-3

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

No appeal shall lie against the decision ruling on the request to be heard made by the minor.

The decision whereby the testimony is ordered may, notwithstanding the above, be amended or set aside by another special reasoned decision where the judge has been apprised of a good reason which shall render a testimony of the minor unsuitable under the conditions previously provided.

 

Article 338-4

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

 

 

The decision ordering the testimony may take the form of simple notes recorded on the file or the transcript of the hearing.

 

Article 338-5

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

 

A convocation to his testimony-hearing shall be transmitted to the minor by recorded letter with the advice of delivery slip sought, doubled by an ordinary letter to that effect.

The convocation shall inform him of his right to testify alone, or in the presence of an avocat or a person of his choice.

On the same day, the clerk's office-registry shall inform the legal representatives of the parties by ordinary memorandum and, in default thereof, the parties themselves by recorded letter with the advice of delivery slip sought of the decision ordering the testimony. The notice shall reproduce the provisions of Article 338-3.

 

Article 338-6

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

Where the judge is seised of a request to give evidence in the presence of the parties and the minor, the testimony-hearing may take place immediately. Where such is not proceeded with immediately, the convocation of the minor and the information provided in the second sub-article of Article 338-5 shall be given orally.

 

Article 338-7

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

Where the minor appears alone in view of giving evidence, the judge shall give notice to him of his right to give evidence in the presence of an avocat or a person of his choice. Where the minor shall exercise such a right, the testimony-hearing shall be postponed at a later date.

The avocat retained by the minor shall inform the judge of the same.

Where the minor shall request to give evidence in the presence of an avocat and where he does not choose one himself, the judge shall behest the Chairman of the Bar to appoint an avocat.

 

Article 338-8

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

The decision refusing the testimony of the minor shall be transmitted by the clerk's office-registry to the minor by recorded letter with the advice of delivery slip sought doubled with an ordinary letter. As the case may be, a copy of the decision shall be transmitted to the avocat of the minor by a simple memorandum.

 

Article 338-9

 

(Inserted by Decree No. 93-1091 of 16 September 1993, sec.20, Official Journal of 17 September 1993)

 

The court sitting as a panel-judge may hear a minor or appoint one of its members to proceed with the testimony-hearing of the minor and to give an account of the same thereafter.

 

TITLE X THE WITHDRAWAL, RECUSAL AND REFERRAL

 

CHAPTER I ABSTENTION

 

Article 339

 

The judge who considers there exists as regards to his person grounds of recusal, or who thinks he should in conscience abstain, shall have himself replaced by another judge nominated by the president of the court to which he it is attached to. The replacement of a judge of the tribunal d'instance shall be appointed by the president of the tribunal de grande instance in default of a presiding judge.

 

Article 340

 

Where the abstention of several judges prevents the court seised from ruling, it shall be proceeded as in matters of referral on grounds of reasonable suspicion.

 

CHAPTER II RECUSAL

 

Article 341

 

(Decree No. 78-330 of 16 March 1978, sec.7, Official Journal of 18 March 1978 amendment, JORF of 24 March 1978 and JORF of 10 November 1978)

 

 

The recusal of a judge shall be permissible only for causes provided by the law.

As it is provided under Article L.731-1 of the Code of Judicial Organisation, and save where there exist special provisions for certain courts, the recusal of a judge may be requested:

1° Where he himself or his spouse has a personal interest in the dispute;

2° Where he himself or his spouse is the creditor, debtor, presumed heir or donee of one of the parties;

3° Where he himself or his spouse is related by blood or marriage with one of the parties or his or her spouse up to the fourth degree of kinship inclusive;

4° Where there have been or have proceedings between himself or his spouse and with one of the parties or his or her spouse;

5° Where he has, previously, had knowledge of the matter in the capacity of a judge or arbitrator or where the has counselled one of the parties;

6° Where the judge or his spouse is entrusted of the administration of the property of one of the parties;

7° Where there exists a link of subordination between the judge or his spouse and one of the parties or his or her spouse;

8° Where there has been a notorious friendship or enmity between the judge and one of the parties;

The ministère public, as a joined party may be recused on the same grounds.

 

Article 342

 

The party who wishes to recuse a judge shall have, on pain of inadmissibility, to do so as soon as he has knowledge of a ground of recusal.

In no case may the request for recusal be made after the end of the oral arguments.

 

Article 343

 

The recusal shall have to be made by the party himself or his agent specially empowered.

 

Article 344

 

The request for the recusal shall be made by a processual instrument lodged at the clerk's office of the court to which the relevant judge is attached or by declaration taken down by the clerk in a procès-verbal.

The request for the recusal shall have, under penalty of it otherwise being inadmissible, to specify precisely the grounds for the recusal and be subjoined with the necessary supporting exhibits.

An acknowledgement of the request shall be issued.

 

Article 345

 

The clerk shall transmit to the judge a copy of the recusal application against him.

 

Article 346

 

The judge, as soon as he receives the copy of the application, shall have to withdraw until the recusal has been ruled upon.

Where there is an urgency, another judge may be nominated, even ex propio motu, to carry out the necessary procedures.

 

Article 347

 

Within eight days of this communication, the impugned judge shall have to make known in writing, either an acquiescence of the recusal or the grounds for which he opposes the same.

 

Article 348

 

Where the judge acquiesces, he shall immediately be replaced.

 

Article 349

 

Where the judge opposes the recusal or does not give any reply, the recusal application shall be ruled upon at once by the court of appeal or, where it is directed against a member of a court composed of occupational and lay judges, by the president of the court in question, whose ruling shall not be appealable.

 

Article 350

 

The clerk shall transmit the recusal application with the judge's reply or a note of his failure to reply, to the first president of the court of appeal or to the president of the court composed of occupational and lay judges.

 

Article 351

 

The matter shall be determined without the necessity of calling the parties or the impugned judge.

A copy of the decision shall be delivered or transmitted by the clerk to the judge and to the parties.

 

Article 352

 

Where the recusal application is granted, the replacement of the judge shall be proceeded with.

 

Article 353

 

Where the recusal application is dismissed, the applicant may be ordered to pay a civil fine from F 100 to F 10 000 without prejudice to the damages which may to be claimed.

 

Article 354

 

The acts performed by the impugned judge before he had knowledge of the recusal may not be challenged.

 

Article 355

 

The recusal against several judges shall have, under penalty of it otherwise being inadmissible, to be filed in the same plea, save where a ground for the recusal comes to light subsequently to the same.

It shall then be proceeded with as provided in the following Chapter even though a referral has not been requested.

 

CHAPTER III THE REFERRAL TO ANOTHER COURT

 

SECTION I THE REFERRAL FOR REASONABLE SUSPICION

 

Article 356

 

The application for referral on grounds of reasonable suspicion shall be subject to the same conditions of admissibility and of form as is the case for a recusal application.

 

Article 357

 

The application to bring the matter out of the cognisance of the judge shall immediately be communicated by the clerk to the president of the court.

 

Article 358

 

Where the president considers the application well-founded, he shall assign the matter to another panel of the same court or refer it to another court of the same kind.

Where the president considers that the matter shall have to be referred to another court, he shall transmit the file to the president of the next superior court who shall designate the court of referral.

A copy of the decision shall be transmitted by the clerk to the parties.

An appeal shall not lie against the decision; it shall be binding on the parties and on the ad quem referral judge.

 

Article 359

                                                                                                           

Where the president opposes to the application, he shall transmit the matter with the reasons of his refusal to the president of the next superior court.

Such court shall, in chambers, rule within one month after having heard the ministère public and without the necessity of calling the parties.

Copy of the decision shall be transmitted by the clerk to the parties and to the president of the court whose cognisance is at issue.

 

Article 360

 

Where the application is well-founded, the matter shall be referred to another panel of the court originally seised, or to another court of the same kind as the latter.

The decision shall be binding on the parties and on the ad quem referral judge. No appeal shall lie against it.

 

Article 361

 

The proceedings shall not be stayed before the court whose cognisance is at issue.

The president of the court seised of an application for referral may notwithstanding the above, order, according to the circumstances, that the court suspected of bias shall refrain from ruling until the judgment of referral.

 

Article 362

 

Where there shall be a referral, it shall be proceeded with as provided under Article 97.

 

Article 363

 

The dismissal of the referral application may carry the application of provisions of Article 353.

 

SECTION II REFERRAL ON GROUNDS OF A RECUSAL AGAINST SEVERAL JUDGES

 

Article 364

 

Where the referral is requested on grounds of a personal recusal against several judges of the court seised, it shall be proceeded as in matters of referral on grounds of reasonable suspicion after that each impugned judge has replied or has allowed the time-limit to the reply to expire.

 

SECTION III THE REFERRAL ON GROUNDS OF PUBLIC SECURITY

 

Article 365

 

The referral on grounds of public security shall be ordered by the Cour de cassation on the behest of the procureur général before such court.

 

Article 366

 

(Decree No. 81-500 of 12 May 1981, sec.11, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Provisions of Articles 360 to 362 shall be applicable.

 

TITLE XI INCIDENTS OF THE PROCEEDINGS

 

CHAPTER I THE JOINDER AND DISJOINDER OF PROCEEDINGS

 

Article 367

 

The judge may, on the application of the parties or ex proprio motu, order the joinder of several proceedings pending before him where there is a connexity between the disputes such that it would be in the interest of justice to manage or to determine them together.

He may likewise order the disjoinder of proceedings into several actions.

 

Article 368

 

The decision of joinder or disjoinder of proceedings pertains to measures of judicial administration.

 

CHAPTER II THE ABATEMENT OF THE PROCEEDINGS

 

Article 369

 

The proceedings shall be abated by:

- the majority of a party;

- the discontinuance of representation by an avocat or an avoué where the representation is compulsory;

- the effect of the judgment which orders the receivership or judicial liquidation of properties in cases where this entails the control or the dispossession of the debtor.

 

Article 370

 

As from the time of the notification to the other party, the proceedings shall be abated by:

- the death of a party in cases where the action is transmissible;

- the discontinuance of the legal representative of a person under a legal disability;

-         the recovery or loss by a party of the legal capacity to ester in judgment.

 

Article 371

 

In any case shall the proceedings be interrupted where the event happens or is notified after the opening of the oral arguments.

Article 372

 

The acts performed and even the judgments which have become res judicata, obtained after the abatement of the proceedings, shall be considered void save where they are expressly or tacitly confirmed by the party for whose benefit the abatement is provided.

 

Article 373

 

The proceedings may be revived voluntarily in the manner provided for in view of tendering grounds of defence.

In default of voluntary revival, it may be caused by way of a citation.

 

Article 374

 

The proceedings on revival shall be prosecuted as they stood at the time where they were abated.

 

Article 375

 

Where a party who is cited in view to a revival of the proceedings fails to appear, matters shall be proceeded with as provided under Articles 471 and following.

 

Article 376

 

The abatement of proceedings shall not bring the matter out of the cognisance of the judge.

The latter may invite the parties to inform him of their steps to revive the proceedings and may strike out the matter in default of thereof within the time-limit specified by him.

He may request the ministère public to collect the information necessary for the revival of the proceedings.

 

CHAPTER III STAY OF THE PROCEEDINGS

 

Article 377

 

(Decree No. 98-1231 of 28 December 1998, sec.9, Official Journal of 30 December 1998, in force on 1 March 1999)

 

Further to the cases provided by the law, the proceedings shall be stayed by the decision providing for a deferment of judgment or which struck off the matter from the roll.

 

SECTION I DEFERMENT OF JUDGMENT

 

Article 378

 

The decision of deferment shall suspend the course of the proceedings for the period, or until the occurrence of an event, which it shall identify.

 

Article 379

 

The deferment shall not bring the matter out of the cognisance of the judge. At the expiration of the deferment, the proceedings shall be resumed on the initiative of the parties or by steps taken by the judge, subject to the latter's power to order, should the occasion arise, a new deferment.

The judge may, according to the circumstances, revoke the deferment or abridge the period.

 

Article 380

 

The decision to put off the judgment may be appealed on leave by the first president of the court of appeal where a serious and legitimate cause against it is shown.

The party who wishes to appeal shall seise the first president who shall rule as in matters of summary interlocutory procedure. The summons shall have to be served within one month as from the decision.

Where the application is granted, the first president shall specify the date where the matter shall be examined by the court which shall be seised and give a ruling as in matters of fixed-day procedure or, as provided under Article 948, as the case may be.

 

Article 380-1

 

(Inserted by Decree No. 79-941 of 7 November 1979, sec.7, Official Journal of 9 November 1979 in force on 1 January 1980)

 

 

The decision for a deferment of judgment delivered as a one of last resort may be impugned by way of petition in cassation only in relation to breach of the rule of law.

 

SECTION II DELETION OFF THE ROLL

 

Article 381

 

(Decree No. 98-1231 of 28 December 1998, sec.10, Official Journal of 30 December 1998, in force on 1 March 1999)

 

 

Deletion off the roll shall be the order made, under the conditions prescribed by law, as a result of a want of action on behalf of the parties.

It shall carry the removing of the matter off the roll of cases being proceeded with.

It shall be notified by ordinary letter to the parties as well as to their representatives. Such notification shall mention the want of action.

 

Article 382

 

(Decree No. 98-1231 of 28 December 1998, sec.10, Official Journal of 30 December 1998, in force on 1 March 1999)

 

The withdrawal from the roll shall be ordered where all the parties make an application to the same while giving the reasons thereof.

 

Article 383

 

(Decree No. 81-500 of 12 May 1981, sec.12, Official Journal of 14 May 1981 amendment JORF 21 May 1981)

 

(Decree No. 98-1231 of 28 December 1998, sec.10, Official Journal of 30 December 1998, in force on 1 March 1999)

 

Deletion off the roll shall pertain to measures of judicial administration.

Save where the proceedings are time-barred, a matter may be restored, where it has been deleted, on showing cause of the compliance with the steps to be undertaken which was wanting and which resulted in the matter being deleted, on application by one of the parties.

 

CHAPTER IV THE EXTINCTION OF THE PROCEEDINGS

 

Article 384

 

Further to cases where an extinguishment of action is effected as a result of the pronouncement of a judgment, the proceedings shall be extinguished accessorily on a settlement, acquiescence, withdrawal of action or, in non-transmissible actions, on the death of a party.

The extinction of the proceedings shall be recorded by a decision rendering the court no more cognisant of the matter.

It shall belong to the judge to confer an enforceable title upon the instrument recording the settlement between the parties, whether this is done before him or has been reached out of his presence.

 

Article 385

 

The proceedings shall be extinguished principally by the effect of a bar by limitation, discontinuance of the proceedings or the lapse of the citation.

In those cases, the recording of the extinction of the proceedings and the rendering of the court as no more cognisant of the matter shall not be a bar to the institution of new proceedings where the action is not otherwise extinguished.

 

SECTION I DISMISSAL FOR WANT OF PROSECUTION

 

Article 386

 

Proceedings shall be dismissed for want of prosecution where no party has prosecuted with the carriage of the case for a period of two years.

 

Article 387

 

Dismissal for want of prosecution may be applied for by either one of the parties.

It may be raised by way of a plea against the party who performed an act after the expiration of the time-limit occasioning a dismissal for want of prosecution.

 

Article 388

 

Dismissal for want of prosecution shall have to, under penalty of it otherwise being inadmissible, be requested or raised before any other grounds; it shall be as of right.

It may not be raised ex proprio motu by the judge.

 

Article 389

 

Dismissal for want of prosecution shall not extinguish the right of action; it shall only carry the extinction of the proceedings and shall disenable a party to oppose any of the lapsed processual papers or to avail himself thereof.

 

Article 390

 

Dismissal for want of prosecution in relation to appeals or application to set aside shall confer on the judgment the authority of res judicata even where it has not been notified.

 

Article 391

 

The time-limit beyond which a dismissal for want of prosecution shall result, shall run against natural persons and corporate entities, even where they are under legal disabilities, subject to their right of action against the administrators or tutors.

 

Article 392

 

(Decree No. 76-1236 of 28 December 1976, sec.5, Official Journal of 30 December 1976)

 

The abatement of proceedings shall effect a pause in the reckoning of the time-limit governing dismissal for want of prosecution.

The time-limit shall continue to run in cases of stays of the proceedings save where they are operative for a limited period only or until the occurrence of a specific event; in the latter event, a new period shall run as from the expiration of the limited period or as from the occurrence of the event.

 

Article 393

 

The costs attendant upon a dismissal for want of prosecution shall be borne by the party who instituted the relevant proceedings.

 

SECTION II THE DISCONTINUANCE OF PROCEEDINGS

 

SUB-SECTION I THE DISCONTINUANCE OF THE CLAIM AT FIRST INSTANCE

 

Article 394

 

The claimant may, in all matters, discontinue his claim in view to terminating the proceedings.

 

Article 395

 

The discontinuance shall be perfected only on the acceptance of the same by the defendant.

Notwithstanding the above, an acceptance shall not be necessary where the defendant has not tendered a substantive defence or a plea seeking a peremptory declaration of inadmissibility at the time where the claimant moves for discontinuance.

 

Article 396

 

The judge shall declare the discontinuance perfected where the defendant's non-acceptance is not founded on any reasonable grounds.

 

Article 397

 

The discontinuance shall be express or implied; the same shall apply to acceptance.

 

Article 398

 

A discontinuance of proceedings shall not carry a renunciation to the right to sue, but only the extinction of the proceedings.

 

Article 399

 

The discontinuance shall carry, save where there is a agreement to the contrary, an undertaking to bear the costs of the extinguished proceedings.

 

SUB-SECTION II THE DISCONTINUANCE OF AN APPEAL OR APPLICATION TO SET ASIDE

 

Article 400

 

The discontinuance of an appeal or of an application to set aside shall be allowed in all matters except where there are provisions to the contrary.

 

Article 401

 

(Decree No.81-500 of 12 May 1981, sec.13, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

The discontinuance of an appeal shall require the acceptance only where it shall contain provisos or where the party in whose regard it is made has previously filed a cross-appeal or an incidental claim.

 

Article 402

 

The discontinuance of an application to set aside shall require the acceptance only where the original claimant has previously filed an additional claim.

 

Article 403

 

The discontinuance of an appeal shall carry a confession of the judgment. It shall be void where another party shall thereafter lodge in due form an appeal.

 

Article 404

 

The discontinuance of an application to set aside without provisos shall carry a confession of the judgment.

 

Article 405

 

Articles 396, 397 and 399 shall not be applicable to discontinuance of appeal or to an application to set aside.

 

SECTION III LAPSING OF THE CITATION

 

Article 406

 

A citation shall lapse in the cases and under the conditions prescribed by law.

 

Article 407

 

The decision putting on record the operation of being lapsed in relation to the citation may be revoked, in case of error, by the judge who delivered the same.

 

SECTION IV CONFESSION OF JUDGMENT

 

Article 408

 

Confessing to a claim shall carry the recognition of the merits of the opponent's claims and a renunciation to mount a challenge.

It shall lie only in relation to those rights vesting its persona with an unfettered enjoyment.

 

Article 409

 

(Decree No. 79-941 of 7 November 1979, sec.8 and 16, Official Journal of 9 November 1979 in force on 1 January 1980)

 

 

Confessing to a judgment shall carry a deference to its holdings and a renunciation of exercising any means of review save where another party shall thereafter duly institute review proceedings.

It shall always lie save where contrary provisions shall apply.

 

Article 410

 

Confession may be express or implied.

The enforcement without any proviso of a non-enforceable judgment shall amount to a confession to the same, save where confession shall not be entertained.

 

TITLE XII LEGAL REPRESENTATION AND ASSISTANCE BEFORE A COURT

 

Article 411

 

The authority to act in representation before a court of justice shall carry the power and the duty to effectuate processual papers on behalf of the principal.

 

Article 412

 

The function of assisting before a court of justice shall carry the power and duty to advise the party and to defend his contentions without the same binding him.

 

Article 413

 

The authority to act in representation shall carry the function of assistance save where provisions or agreement to the contrary shall apply.

 

Article 414

 

A party may be represented only by one legal persona whether by a natural person or corporate entities empowered in law.

 

Article 415

 

The surname of a representative and the capacity in which he acts shall have to be provided to the judge by way of a declaration to the clerk of the court.

 

Article 416

 

Whoever intends to represent or assist a party shall have to show cause of his authority to act to assist.

An avocat or avoué shall, notwithstanding the above, be exempted from such proof.

The huissier de justice shall benefit from the same exemption in cases where he is entitled to represent or assist the parties.

 

Article 417

 

The persons empowered with an authority to act in representation before a court of justice shall be considered, with regard to the judge and the opposing party, to have received special powers to move for or indicate acceptance of discontinuances of action, to the confessing of actions, to make or accept offers, to tender admissions or agreements.

 

Article 418

 

The party who shall revoke the retainership of his representative shall have to immediately thereafter either provide for his replacement or inform the judge and the opposing party of his intention to conduct the proceedings himself, where the law so permits, failing which his opponent may prosecute the proceedings and seek judgment while recognising all the way only the revoked representative.

 

Article 419

 

The representative who intends to release himself from a retainership shall only be in a position to effect the same where he has informed the one on whose behalf he has been acting, the judge and the opposing party of his intention.

Where representation is compulsory, the avocat or the avoué may only discharge their retainership on them being replaced by a new representative employed by the party, or in default thereof, appointed by the Chairman of the Bar or the President of the Disciplinary Chamber.

 

Article 420

 

The avocat or the avoué shall fulfil the duties of his mandate without a renewal of powers until the enforcement of judgment, provided that the same shall be executed within less than a year after the judgment stood as res judicata.

These provisions shall not prevent a direct payment to the party where the same has fallen due.

 

TITLE XIII THE MINISTÈRE PUBLIC

 

Article 421

 

The ministère public may act as a main party or intervene as a party joined to the proceedings. He shall represent such other persons as in the cases prescribed by law.

 

CHAPTER I THE MINISTÈRE PUBLIC AS A MAIN PARTY

 

Article 422

 

The ministère public shall act ex proprio motu in matters prescribed by law.

 

Article 423

 

Further to theses matters, it may be the advocate for the maintenance of public policy in matters where the same is at stake.

 

CHAPTER II THE MINISTÈRE PUBLIC AS A JOINED PARTY

 

Article 424

 

(Decree No.81-500 of 12 May 1981, sec.14, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

 

The ministère public shall be a joined party where it shall intervene to tender its observations in relation to the application of the law in a matter which has been brought to his attention.

 

Article 425

 

(Decree No.81-500 of 12 May 1981, sec.15, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

(Decree No.82-327 of 9 April 1982, sec.33, Official Journal of 11 April 1982)

 

(Decree No.85-1388 of 27 December 1985, sec.182, Official Journal of 29 December 1985)

 

 

The ministère public shall have to be intimated of:

1° Matters relating to parentage, to the organisation of the tutela, to the institution or modification of the tutela of adults;

2° Proceedings for provisional stay of prosecution and general wiping off of debts, personal bankruptcy or other penalties and, with regard to corporate entities, proceedings relating to a court administration of insolvency and liquidation of property, proceedings relating to receiverships and judicial liquidation as well those relating to the financial responsibility of company directors.

The ministère public shall have, further, to be intimated of all matters in relation to which the law shall provide that it shall indicate its opinion.

 

Article 426

 

The ministère public may be apprised of such other matters in relation to which it holds the view that it is its duty to intervene.

 

Article 427

 

The judge may ex proprio motu decide to intimate a matter to the ministère public.

 

Article 428

 

The intimation to the ministère public shall, save where special provisions shall apply, have to be proceeded with at the initiative of the judge.

It shall have to be effected in due time so as not to delay the judgment.

 

Article 429

 

On intimating a matter to the ministère public, it shall have to be notified of the date of the hearing.

 

TITRE XIV THE JUDGMENT

 

CHAPTER I GENERAL PROVISIONS

 

SECTION I THE ORAL ARGUMENTS, DELIBERATION AND THE JUDGMENT

 

SUB-SECTION I THE ORAL ARGUMENTS

 

Article 430

 

The court shall be constituted, under penalty of it otherwise being null, in accordance with the rules regarding judicial organisation.

Disputes relating to its regularity shall have to be raised, under penalty of it otherwise being inadmissible, at the commencement of the oral arguments or at the point where an irregularity has become apparent if subsequent to the oral argument, failing which no nullity may thereafter be declared on these issues, even ex proprio motu.

The provisions of the preceding sub-article shall not be applicable to a person who by virtue of his occupation or the office he occupies does not rank him as a member of the court, although called to act as the case may be.

 

Article 431

 

(Decree No.81-500 of 12 May 1981, sec.16, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

The ministère public shall be bound to attend a hearing only in cases where he is a main party, in those where it represents other persons or where its presence is required by law.

In all other cases, it may give its opinion to the court either by transmitting written submissions, which are made available to the parties, or by the presentation of the same orally at the hearing.

 

Article 432

 

The oral arguments shall take place on the day and, to the extent that the progress of the hearing shall allow, at the time previously specified, according to the rules of each court. They may be resumed in subsequent sittings.

In the event of a change in the composition of the court after the opening of the oral arguments, they shall have to be tendered de novo.

 

Article 433

 

The oral arguments shall be public except where the law requires them to be held in chambers.

The provisions made in this regard at first instance shall have to be followed on appeal, save where otherwise provided.

 

Article 434

 

In non-contentious matters, an application shall be examined in chambers.

 

Article 435

 

The judge may decide that the oral arguments shall take place or shall continue in chambers where its publicity might adversely affect individual privacy or, where all the parties so request, or where there arise such disturbances as may disrupt the judicial atmosphere.

 

Article 436

 

In chambers, it shall be proceeded with without the presence of the public.

 

Article 437

 

Where it appears, or where it is alleged, either that the oral arguments should have taken place in chambers where it is held in open court, or mutatis mutandi in a reverse instance, the president shall rule ex tempore and the incident shall be disregarded.

Where the hearing is prosecuted as according to its proper manner, no nullity based on the prior progress thereof may be subsequently pronounced, even ex proprio motu.

 

Article 438

 

The president shall see to the proper conduct of the hearing. Any direction given to ensure the same shall be implemented at once.

Judges shall exercise the same powers in any venue they may sit in office.

 

Article 439

 

Persons who are attending a hearing shall have to observe a dignified attitude and show due respect to justice. They shall not be allowed to speak without having been invited to do so, to exhibit signs of approval or disapproval, or to cause any disturbance of any nature whatsoever.

The president may have any person who fails to comply with his orders expelled without prejudice to such criminal or disciplinary proceedings which might be instituted against him.

 

Article 440

 

The president shall chair the oral arguments. He shall turn to the judge-rapporteur to address the court where a report is to be presented.

The claimant, thereafter the defendant, shall be called in that order to set forth their claims.

Where the court holds it has been apprised of the necessary elements of the matter, it shall draw the closing speeches and the observations of by the parties to an end.

 

Article 441

 

Even in cases where representation is compulsory, the parties even though aided by their representatives, may submit in person oral observations.

The court may deny them the right to address it where passionate feelings or inexperience prevail over dignity or clarity so as to prevent a proper discussion of the matter.

 

Article 442

 

The president and the judges may call upon the parties to provide legal or factual explanations which they deem necessary to clarify matters otherwise obscure.

 

Article 443

 

The ministère public, when joined to a proceedings, shall be the last to be called in view to addressing the court.

Where it is not in a position to make submissions at that moment, it may request that its speech be deferred to a subsequent hearing.

 

Article 444

 

The president may order the oral arguments to be re-opened. He shall have to order so where parties were not in a position to argue in adversum on the legal and factual clarifications sought.

Where there is change in the composition of the court, it shall be necessary conduct de novo the oral arguments.

 

Article 445

 

Subsequent to the close of the oral arguments, the parties may not file any written comment in support of their arguments except in reply to the arguments advanced by the ministère public or at the request of the president under the circumstances provided for under Articles 442 and 444.

 

Article 446

 

The provisions of Articles 432 (sub-article 2), 433, 434, 435 and 444 (sub-article 2) shall have to be complied with under penalty of a nullity.

Notwithstanding the above, no nullity may subsequently be raised owing to a failure to comply with such provisions where it has not been relied upon prior to the close of the oral arguments. Nullity may not be raised ex proprio motu.

 

SUB-SECTION II THE DELIBERATION

 

Article 447

 

It shall belong to the judges before whom the matter has been argued to deliberate on it. They shall consist of such numbers no less to that which is laid down under the rules relating to judicial organisation.

 

Article 448

 

The deliberations of the judges shall be in camera.

 

Article 449

 

The decision shall be delivered on a majority of votes.

 

SUB-SECTION III THE JUDGMENT

 

Article 450

 

Where a judgment may not be pronounced ex tempore, its pronouncement shall be reserved in view of further consideration and to be pronounced on a date as specified by the president.

 

Article 451

 

Decisions in contentious matters shall be pronounced in open court and those in non-contentious matters out of the presence of the public, subject to special provisions pertaining to certain matters.

 

Article 452

 

The judgment shall be read by one of the judges who formed it, even where the other judges and the ministère public are not present.

The pronouncement may be limited to its operative part.

 

Article 453

 

The date of the judgment shall be that on which it has been read.

 

Article 454

 

The judgment shall be delivered on behalf of the French people.

It shall contain an indication of:

- the court from which it emanates;

- the names of the judges who deliberated on it;

- its date;

- the name of the representative of the ministère public where he attended the oral arguments;

- the name of the clerk;

- the names or denomination of the parties as well as their domicile or registered office;

- should the occasion arise, the names of the avocats or any person who represented or assisted the parties;

- in non-contentious matters, the name of the persons to whom it shall have to be notified.

 

Article 455

 

(Decree No. 98-1231 of 28 December 1998, sec.11, Official Journal of 30 December 1998 amendment JORF of 13 February 1999, in force on 1 March 1999)

 

The judgment shall have to set forth succinctly the respective claims of the parties and their grounds. Such presentation may take the form of a reference to the pleadings of the parties with the indication of their date. Reasons for the judgment shall have to be given.

It shall pronounce the decision in the form of holdings.

 

Article 456

 

The judgment shall be signed by the president and the clerk of the court. Where there is impediment in relation to president, a mention thereof shall be recorded on the minutes which shall be signed by one of the judges who deliberated on it.

 

Article 457

 

The judgment shall have the probative authority of an authentic instrument of record subject to provisions of Article 459.

 

Article 458

 

The provisions of Articles 447, 451, 454, with regard to the indication of the names of the judges, 445 (sub-article 1) and 456 shall have to be complied with under penalty of it otherwise being null.

Notwithstanding the above, no nullity may subsequently be relied upon or raised ex proprio motu for non-compliance with the formalities provided under Articles 451 and 452 where it has not been raised of at the time the judgment was pronounced, and noted down by way of a simple mention on the transcript of the hearing.

 

Article 459

 

Omission or inaccuracy in a note intended to establish the regularity of the judgment may not cause the nullity thereof where it is shown on producing the processual papers, the transcript of the hearing or by any other means that the legal requirements have, in fact, been complied with.

 

Article 460

 

The nullity of a judgment may only be raised by the means of review provided by the law.

 

Article 461

 

The legal significance of a judgment shall be construed by the judge who pronounced it where it is not appealed against.

An application for the interpretation of a judgment shall be brought by way of simple petition by one of the parties or by joint petition. The judge shall rule upon it with the parties being present or called.

 

Article 462

 

Clerical errors or omissions which affect a judgment, even one which has become res judicata, may always be rectified by the court which delivered it or by the one to which it has been referred, in accordance with the matters on the court's record, or should the occasion arise, what reason would dictate.

The judge shall be seised by a simple petition on behalf of one of the parties, or by joint petition; he may also be seised ex proprio motu.

The judge shall rule upon the matter after having heard the parties or the latter having been called.

A note of the rectifying decision shall be made on the original and on the certified copies of the judgment. It shall be notified in the same way as a judgment.

Where the rectified decision has the authority of res judicata, the rectifying decision may only be impugned by way of a petition in cassation.

 

Article 463

 

(Decree No. 89-511 of 20 July 1989, sec.9, Official Journal of 25 July 1989 in force on 15 September 1989)

 

The court which has failed to rule upon a head of a claim, may likewise complete its judgment without affecting the res judicata in respect of the other heads of the claim, except where, should the occasion arise, the exact statements of the respective claims of the parties and their grounds are to be formulated again.

An application to the same shall have to be presented within one year at the latest after the decision which has become res judicata, or in case of a petition in cassation, in relation to the same, as from the judgment of inadmissibility.

The judge shall be seised by way of a simple petition of one of the parties or by a joint petition. He shall rule after having heard the parties or the latter being called.

A note of the decision shall be made on the original and certified copies of the judgment. It shall be notified in the same way as provided for judgments and shall make available the same means of review

 

Article 464

 

The provisions of the preceding Article shall be applicable where the judge has ruled upon matters not in issue or where more has been awarded than has been claimed.

 

Article 465

 

(Decree No.81-500 of 12 May 1981, sec.17, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

 

Each party shall be entitled to the delivery of a certified copy of the judgment imprinted with a certificate of enforcement.

Where there is a serious cause to the same, a second certified copy, containing the same certificate, may be delivered to the same party by the clerk of the court which has delivered the judgment. Where there is a difficulty, the president of such court shall rule upon it by a reasoned order.

 

Article 465-1

 

Where a judgment fix a family support or a debt provided for under the Articles 214, 276 and 342 of the Civil Code, the parties shall be informed, by a document added to the cerfitied copy of the judgment, of the manner of the debt collection, of the rules of revision of the debt and the criminal sentences incurred.

Article 466

 

(Inserted by Decree No. 85-1330 of 17 December 1985 Article 1 Official Journaml of 18 December 1985 into force on 1 January 1986)

 

In non-contentious matters, a copy of the petition shall be attached to the certified copy of the judgment.

 

SECTION II THE DEFAULT OF APPEARANCE

 

SUB-SECTION I LITIGATED JUDGMENT

 

Article 467

 

The judgment shall be litigated as long as the parties appear in person or by a representative, according to the rules proper to the court before which the claim is brought.

 

Article 468

 

(Decree No.86-585 of 14 March 1986, sec.1, Official Journal of 19 March 1986)

 

 

Where without a lawful excuse, the claimant does not appear, the defendant may request a judgment on the merits of the case which shall be litigated although the judge has the power to postpone the matter to a later hearing.

The judge may also, even ex proprio motu, declare that the citation has lapsed. The declaration of lapsing may be withdrawn where the claimant makes known to the registry within a period of fifteen days a lawful excuse in relation to which he has not been in a position to intimate in due time. In the latter event, the parties shall be convened to a later hearing.

 

Article 469

 

Where, after having appeared, one of the parties failed to effectuate the processual papers within the required time-limit, the judge shall rule by a litigated judgment in the light of the material before him.

The defendant may, notwithstanding the above, request the judge to declare that the citation has lapsed.

 

Article 470

 

Where none of the parties effectuate the processual papers within the required time-limit, the judge may, ex proprio motu, delete the matter from the roll by a non-appealable decision after that a final notice has been transmitted to the parties themselves and their representatives where they have retained one.

 

SUB-SECTION II THE JUDGMENT DELIVERED BY DEFAULT AND THE JUDGMENT DEEMED LITIGATED

 

Article 471

 

(Decree No. 76-1236 of 28 December 1976, sec.6, Official Journal of 30 December 1976)

 

The defendant who does not appear may, on the initiative of the claimant or on a decision taken ex proprio motu by the judge, be invited to appear again where the citation has not been served on him personally.

The citation shall, subject to special rules applicable to certain courts, be reissued in the same form as the first one. The judge may order that it shall be done by a process served by a huissier where the first citation was effected by a clerk of the court. The new citation shall have to state, as the case may be, the provisions of Articles 472 and 473 or those of Article 747 (sub-article 2).

The judge may also inform the interested party, by ordinary letter, of the consequences of his failure to appear.

 

Article 472

 

Where the defendant fails to appear, a ruling shall nevertheless be made on the substance of the case.

The judge shall uphold the claim only to the extent that he considers it valid, admissible and well-founded.

 

Article 473

 

Where the defendant does not appear, the judgment shall be delivered by default where the decision is of last resort and where the citation has not been served in person.

The judgment shall be deemed to be litigated where the decision is appealable or where the citation has been served to the person of the defendant.

 

Article 474

 

(Decree No. 89-511 of 20 July 1989, sec.10, Official Journal of 25 July 1989 in force on 15 September 1989)

 

 

Where there are several defendants cited in the same matter, where at least one of them does not appear, the judgment shall be deemed to be litigated with regard to all of them where the decision is appealable or where those who did not appear have been cited in person.

Where the required decision is not appealable, the defaulting parties who have not been cited in person shall have to be cited again. The judge may, nevertheless, decide, where the citation has been made in the manner as laid down under Article 659, and that there is no need for a new citation. The judgment delivered after that new citations have been served shall be deemed to be litigated with regard to all the parties as long as one of the defendants has appeared or has been cited in person by the first or second citation; otherwise, a judgment shall be delivered by default.

 

Article 475

 

The judge may not rule prior to the expiration of the longest time-limit for appearance, under the first or second citation.

He shall rule upon the matter with regard to all the defendants in one single judgment, save where circumstances require that a ruling be made with regard to some of them only.

 

Article 476

 

The judgment delivered by default may be impugned by way of an application to set aside, except in cases where this means of review is made unavailable by an express provision.

 

Article 477

 

The judgment deemed litigated may only be impugned by the means available against litigated judgments.

 

Article 478

 

The judgment delivered by default or the judgment deemed to be litigated shall be void on the sole ground that it has not been notified within six months as from its date.

The proceedings may be begun again after the re-issue of the original citation.

 

Article 479

 

The judgment by default or the judgment deemed to be litigated delivered against a party residing abroad shall have to record expressly the efforts made in view to informing the defendant of the originating process.

 

CHAPTER II SPECIAL PROVISIONS

 

SECTION I THE JUDGMENT ON THE SUBSTANTIVE ISSUE

 

Article 480

 

The judgment which decides in its holdings all or part of the main issue, or one which rules upon the procedural plea, a plea seeking a peremptory declaration of inadmissibility or any other incidental application, shall from the time of its pronouncement, become res judicata with regard to the dispute which it determines.

The main issue shall mean the subject-matter of the litigation as specified under Article 4.

 

Article 481

 

The judgment, since its pronouncement, shall render the judge no more cognisant of the dispute which he has determined.

Notwithstanding the above, the judge shall have the power to withdraw his decision in case of an application to set aside or a third party application to set aside or an application to reconsider the proceedings.

He may likewise interpret or rectify it under the distinctions drawn under Articles 461 to 464.

 

SECTION II THE OTHER JUDGMENTS

 

SUB-SECTION I NON-DEFINITIVE JUDGMENTS

 

Article 482

 

The judgment which is limited in its holding to giving a direction or a provisional order shall not carry, on the main issue, the authority of res judicata.

 

Article 483

 

A non-definitive judgment shall not bring the matter out of the cognisance of the judge.

 

SUB-SECTION II SUMMARY INTERLOCUTORY ORDERS

 

Article 484

 

A summary interlocutory procedure order shall be a provisional order given at the request of one party, the other party being present or called, in cases where the law confers upon a judge who is not seised of the main issue, the power to give immediately the necessary orders.

 

Article 485

 

The request shall be brought by way of summons at a hearing held for that purpose at the usual time and day for summary interlocutory procedure.

Where, notwithstanding the above, the case requires celerity, the summary interlocutory procedure judge may allow the issuance of a summon for a return day on the time indicated, even where the return day shall fall on a public or bank holiday, to appear either at a hearing or at his domicile open to the public.

 

Article 486

 

The judge shall insure that sufficient time has elapsed between the summon and the hearing for the party summoned to have been able to prepare his case.

 

Article 487

 

The summary interlocutory procedure judge shall have the right to refer a matter managed under a summary interlocutory procedure track to a panel-judge of the court for a hearing the date of which he shall specify.

 

Article 488

 

A summary interlocutory procedure order shall not become, on the main issue, res judicata.

It may be modified or withdrawn by way of summary interlocutory procedure only in the event of new supervening circumstances.

 

Article 489

 

(Decree No. 81-500 of 12 May 1981, sec.18, Official Journal of 14 May 1981 amendment JORF 21 May 1981)

 

The summary interlocutory procedure orders shall be provisionally enforceable. The judge may notwithstanding the above, subject its provisional enforcement to the providing of an undertaking in the manner as specified under Article 517 to 522.

Should the occasion arise, the judge may order the enforcement to be executed upon the mere production of the original.

 

Article 490

 

(Decree No.86-585 of 14 March 1986, sec.2, Official Journal of 19 March 1986)

 

The summary interlocutory procedure order may be impugned by way of an appeal save where it shall emanate from the first president of the court of appeal or it has been pronounced as of last resort by virtue of the claim-value of the subject-matter.

The order given as of last resort by default may be subject to an application to set aside.

The time-limit to appeal or to apply for it to set aside shall be fifteen days.

 

Article 490-1

 

(Inserted by Decree No. 98-1231 of 28 December 1998, sec.12, Official Journal of 30 December 1998, in force on 1 March 1999)

 

Where the appeal relates to a summary interlocutory procedure order given on the basis of Article 808 or of the first sub-article of Article 809, the president of the court-room to which it is allocated shall fix within a short period the hearing at which it shall be considered. On the specified day, it shall be proceeded with in the manner provided under Article 760 to 762.

Appeal against a summary interlocutory procedure order, whatever may be the basis on which it has been given, may be managed and determined in the manner provided under Article 917.

 

Article 491

 

The judge adjudicating in a summary interlocutory procedure may pronounce the imposition of civil penalties.

He may fix the amount thereof provisionally.

He shall rule upon taxable charges.

 

Article 492

 

The originals of the orders of summary interlocutory procedure shall be kept by the clerk's office of the court.

 

SUB-SECTION III EX PARTE ORDERS

 

Article 493

 

An ex parte order shall be a provisional order given in a non adversary proceedings in cases where the petitioner is justified in not calling the opposing party.

 

Article 494

 

(Decree No. 89-511 of 20 July 1989, sec.11, Official Journal of 25 July 1989 in force on 15 September 1989)

 

The application shall be presented in duplicate. It shall have to contain the reasons thereof. It shall have to contain a precise indication as to the exhibits relied upon.

Where it is presented in the course of a proceeding, it shall have to indicate the court seised.

In urgent cases, the application may be presented at the judge's domicile.

 

Article 495

 

(Decree No. 89-511 of 20 July 1989, sec.12, Official Journal of 25 July 1989 in force on 15 September 1989)

 

 

The ex parte order shall contain the reasons thereof.

It shall be enforceable upon the mere production of the original.

Copy of the application and the order shall be given to the person against whom it is enforceable.

 

Article 496

 

(Decree No. 76-1236 of 28 December 1976, sec.7, Official Journal of 30 December 1976)

 

Where the application is not acceded to, an appeal may be lodged save where the order emanates from the first president of the court of appeal. The time-limit for appeal shall be fifteen days. The appeal shall be lodged, managed and determined as in non-contentious matters.

Where the application is acceded to, any interested party may refer back to the judge who has given the order.

 

Article 497

 

The judge shall have the right to modify or withdraw his order even where the trial judge has been seised of the matter.

 

Article 498

 

The duplicate of the order shall be kept at the clerk's office.

 

CHAPTER III FINAL PROVISION

 

Article 499

 

The provisions of the present Title shall not apply to orders of judicial administration.

 

TITLE XV THE EXECUTION OF JUDGMENT

 

Article 500

 

Shall become res judicata the judgment which is not subject to any review staying its execution.

The judgment which is subject to such a review shall have the same authority on the expiration of the time-limit for such a review where the same has not been made within the time-limit.

 

Article 501

 

The judgment shall be enforced, under the following conditions, as from the moment it becomes res judicata, save where the debtor enjoys the benefit of a period of grace or the creditor enjoys the benefit of a provisional enforcement.

 

CHAPTER I GENERAL CONDITIONS FOR ENFORCEMENT

 

Article 502

 

A judgment or an instrument may be enforced only on the production of a certified copy imprinted with a certificate of enforcement, save where the law provides otherwise.

 

Article 503

 

Judgments may not be executed against the parties standing liable thereto unless they have been notified, save where the enforcement is voluntary.

In the event of an execution on the mere production of the original, the said production shall amount to a notification.

 

Article 504

 

(Decree No. 81-500 of 12 May 1981, sec.19, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

The proof of its enforceable nature shall appear on the judgment itself where the same is not subject to a review capable of staying its execution or where it enjoys the benefit of provisional enforcement.

Otherwise, such proof shall result:

either from the acquiescence by the unsuccessful party;

or, from the notification of the decision and of a certificate establishing, in conjunction which the notice, the absence, within a time-limit, of an application to set aside, of an appeal or of a petition in cassation where the petition shall carry a stay of execution.

 

Article 505

 

Each party may cause to be issued by the clerk of the court before which the review may be brought a certificate attesting the absence of an application to set aside, an appeal or of a petition in cassation or indicating the date of the review where one has been lodged.

 

Article 506

 

The removal, variation of undertakings, marginal notes, transcriptions or publications, which shall have to be performed in pursuance of a judgment shall be validly carried out upon the production by any interested party of a duplicate or certified copy of the judgment or of an abstract thereof and, where it is not provisionally enforceable, of proof of its enforceable nature. The proof may result from a certificate drafted by an avocat or an avoué.

 

Article 507

 

The delivery of the judgment or the instrument to a huissier de justice shall amount to an authority to execute, where executions of judgment does not require specific authority.

 

Article 508

 

No execution may be carried out before 6 a.m. or after 9 p.m. nor on public holidays and non working days except by permission of the judge in case of necessity.

 

Article 509

 

Judgments delivered by foreign courts and instruments received by foreign officers shall be enforced in the territory of the Republic in the manner and under the circumstances specified by law.

 

CHAPTER II THE PERIOD OF GRACE

 

Article 510

 

(Decree No. 96-1130 of 18 December 1996, sec.1, Official Journal of 26 December 1996)

 

 

Subject to the sub-articles as hereinafter, the period of grace may only be granted by the decisions whose execution it is intended to delay.

In urgent cases, the same power shall belong to the summary interlocutory procedure judge.

Following the signification of an order or of an instrument authorising distraint, as the case may be, the execution judge shall entertain jurisdiction to grant a period of grace. Such power shall be exercised by the tribunal d'instance in matters of attachment of earnings.

The grant of the period shall be reasoned.

 

Article 511

 

The period shall run as from the day of the judgment where it is litigated; in other cases, it shall run only from the notification of the judgment.

 

Article 512

 

A period of grace may not be granted to a debtor whose property is seized by other creditors nor to the one who is under administrative receivership or liquidation of properties or who has, by his act, reduced the securities which he has provided in his agreements his creditors.

In such cases, the debtor shall lose the benefit of the period of grace previously obtained.

 

Article 513

 

The period of grace shall not prevent the enforcement of protective measures.

 

CHAPTER III PROVISIONAL ENFORCEMENT

 

Article 514

 

(Decree No. 81-500 of 12 May 1981, sec.20, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Provisional enforcement may not be implemented without having been ordered except for decision in relation to which it may be exercised as of right.

Shall in particular be enforceable provisionally as of right, summary interlocutory procedure orders, decisions containing provisional orders governing the course of a proceeding, orders providing for protective measures as well directions of the pre-trial judge granting an interim payment to a creditor.

 

Article 515

 

In addition to cases where it is as of right, provisional enforcement may be ordered at the request of the parties or ex proprio motu each time the judge shall deem it proper and compatible with the nature of the matter, provided that it is not prohibited by law.

It may be ordered for all or part of the judgment. In no case may it be ordered in relation to taxable charges.

 

Article 516

 

Provisional enforcement may be ordered only in relation to decisions to be made enforceable subject to provisions of Article 525 and 526.

 

Article 517

 

Provisional enforcement may be made subject to the providing of undertakings relating real or personal property sufficient to cover restitutions and damages.

 

Article 518

 

The nature, extent and conditions of the undertakings shall be specified in the decision which prescribes that they be provided.

 

Article 519

 

(Decree No. 76-714 of 29 July 1976, sec. 2, Official Journal of 30 July 1976)

 

Where the undertakings shall consist in a sum of money, the same shall be deposited at the Deposits and Consignation Office; it may be deposited also at the request of one of the parties in the hands of a third party appointed for that purpose.

In the latter case, the judge, where he accedes to the request, shall state in his decision the conditions of such deposit.

Where the third party refuses to accept such a deposit, the sum shall be deposited, without any fresh decision to that effect, at the Deposits and Consignation Office.

 

Article 520

 

Where the value of the security may not be immediately determined, the judge shall invite the parties to appear before him with their evidence at a date which he shall specify.

It shall be determined without any right of review.

A note of the decision shall be made on the original and on the certified copies of the judgment.

 

Article 521

 

(Decree No. 81-500 of 12 May 1981, sec.21, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

(Decree No. 84-618 of 13 July 1984, sec.3 and 31, Official Journal of 18 July 1984 amendment JORF of 18 August 1984)

 

The party ordered to pay a sum other than in view of maintenance, compensatory annuities or interim payment may avoid provisional execution by depositing, on leave granted to that effect by the judge, cash or title of sufficient value to provide a security for the amount of the award with respect to the principal claim, interest and costs.

In the event of a judgment ordering the payment of a lump sum as indemnity in cases of personal injury, the judge may also order that it be remitted to a sequester under the condition that he shall pay to the victim such instalments as the judge shall specify.

 

Article 522

 

The judge may, at any time, authorise the substitution of the original security for one of an equal value.

 

Article 523

 

(Decree No. 76-1236 of 28 December 1976, sec.8, Official Journal of 30 December 1976)

 

Requests relating to the application of Articles 517 to 522 may only be brought in cases of appeal before the first president who shall rule upon it by way of summary interlocutory procedure or, in the circumstances provided under Articles 525 to 526, before an appeal judge entrusted with the management of the case as soon as he is seised.

 

Article 524

 

(Decree No. 76-1236 of 28 December 1976, sec.9-i and 9-ii, Official Journal of 30 December 1976)

 

(Decree No. 81-500 of 12 May 1981, sec.22, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Where provisional execution has been ordered, it may be stopped, in cases of appeal, only by the first president who shall rule upon it by way of summary interlocutory procedure and in the following cases:

1° Where it is forbidden by law;

2° Where it is likely to lead to consequences which are clearly excessive; in the latter case, the first president may also provide for the measures referred to under Articles 517 to 522.

The same powers may be exercise, on an application to set aside, by the judge who has delivered the ad quo decision.

Where provisional execution is as of right, the first president may provide for all measures specified in the second sub-article of Article 521 and Article 522.

 

Article 525

 

(Decree No. 81-500 of 12 May 1981, sec.23, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Where provisional execution has been refused, it may be requested, in cases of appeal, only before the first president who shall rule upon it as by way of summary interlocutory procedure or, ever since he is seised, the judge entrusted with the management of the case and provided it is urgent.

 

Article 526

 

(Decree No. 81-500 of 12 May 1981, sec.24, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Where provisional execution has not been requested, or, where a judge has failed to rule upon it, the same may be requested, in cases of appeal, only before the first president ruling upon it as by way of summary interlocutory procedure or, ever since he is seised, the judge entrusted with the management of the case.

 

TITLE XVI MEANS OF REVIEW

 

Article 527

 

Ordinary means of review shall be by way of the lodgment of an appeal and of an application to set aside; extraordinary means of review shall be by way of a third party application to set aside and a petition in cassation.

 

SUB-TITLE I COMMON PROVISIONS

 

Article 528

 

The time-limit at the expiration of which a review may no longer be brought shall run as from the notification of the judgment, save where the time-limit has begun to run, as provided by law, as from the day of the judgment.

The time-limit shall run even against the party who proceeds to a notification.

 

Article 528-1

 

(Inserted by Decree No. 89-511 of 20 July 1989, sec.13, Official Journal of 25 July 1989 in force on 15 September 1989)

 

Where the judgment has not been notified within two years as from its pronouncement, the party who has appeared shall not be admissible to bring a review on the main issue following the expiration of the said time-limit.

Such provision shall be applicable only to judgments which rule wholly on the main issue and to those which, ruling on a procedural plea, a plea seeking a peremptory declaration of inadmissibility and on all other incidental pleas, seeking to terminate the proceedings.

 

Article 529

 

Where there is a joint and indivisible judgment against several parties, the notification made to one of them shall cause the time-limit to run only with respect to him.

In cases where the judgment is in favour of several parties jointly or indivisibly, each of them may take advantage of the notification made by one of them.

 

Article 530

 

The time-limit shall run against a person under tutela only from the day the judgment has been notified to his legal representative as well as to the subrogated tutor and, where the same appears necessary, even though the latter has not been impleaded in a proceeding.

The time-limit shall run against an adult under curatio only as from the day of the notification made to the curator.

 

Article 531

 

Where, during the time-limit for the review, there is a change in the legal capacity of the party to whom the judgment is notified, the time-limit shall be interrupted.

The time-limit shall run further to a notification made to the person who has acquired standing to receiving the same.

 

Article 532

 

The time-limit shall be interrupted by the death of the party to whom the judgment has been notified.

It shall run further to a notification made at the domicile of the deceased person, to be reckoned from the expiration of the time-limit for the making of an inventory and deliberation where the latter notification took place prior to the expiration of the aformentioned time-limit.

A notification may be made to the heirs and representatives, collectively and without indication of names and standing.

 

Article 533

 

Where the party who has notified the judgment has died, the review may be notified to the domicile of the deceased person, to his heirs and representatives collectively and without indication of names and standing.

A judgment may, notwithstanding the above, be requested against the heirs and representatives only where each has been cited to appear.

 

Article 534

 

The person who represents legally a party may, where his functions have ceased and where he has a personal interest, bring the review in his own surname. The review shall likewise be available against him.

 

Article 535

 

The party to whom a review has been notified shall be deemed, for the purposes of the notification, to have established his dwelling at the address which he indicated in the notification of the judgment.

 

Article 536

 

An inexact intitulation of the term judgment by the judges who delivered it shall not bear on the right to bring a review in any way whatsoever.

 

Article 537

 

Measures of judicial administration shall not be subject to any review.

 

SUB-TITLE II THE ORDINARY MEANS OF REVIEW

 

Article 538

 

The time-limit for ordinary means of review shall be one month in contentious matters; it shall be fifteen days in non-contentious matters.

 

Article 539

 

The time-limit for ordinary means of review shall stay the execution of the judgment. The lodgment of an application for review brought within the time-limit shall likewise be suspend execution.

 

Article 540

 

Where the judgment has been delivered by default or where it is deemed to be litigated, the judge shall have the power to relieve the defendant from the time bar resulting from the expiration of the time-limit, where the defendant, without any fault on his part, did not have knowledge of the judgment in time to bring a review or where he was unable to act.

An enabling declaration against preclusion shall be requested to the president of the competent court to entertain an application to set aside or an appeal. The president shall be seised as in matters of summary interlocutory procedure.

The request shall be admissible only where it is filed within a reasonable time from the moment the defendant had knowledge of the decision, but it can never be made later than one year from the notification of the decision; such time shall not stay the execution.

The president shall rule without any right of review.

Where he grants the petition, the time-limit for an application to set aside or appeal shall run as from the day of his decision subject to the president's right to reduce the time-limit or to order that the citation be made on a day which he shall specify.

 

Article 541

 

Where an interested party has been unable, without any fault on his part, to bring within the prescribed time-limit the review available against a non-contentious decisions, he may be granted an enabling declaration against preclusion in the manner as set out in the preceding Article.

 

CHAPTER I THE APPEAL

 

Article 542

 

An appeal shall aim at reversing or annulling by the court of appeal of a judgment delivered by a court of first instance.

 

SECTION I THE RIGHT OF APPEAL

 

SUB-SECTION I APPEALABLE JUDGMENTS

 

Article 543

 

Means of appeal shall be available in all matters, even non-contentious ones, against judgments of first instance, save where otherwise is provided.

 

Article 544

 

Judgments which decide, in their ruling, a part of the main issue and give a direction or provisional order may immediately be appealed against in the same way as judgments which rule upon the whole of the main issue.

It shall be likewise where a judgment which rules upon a procedural plea, a plea seeking a peremptory declaration of inadmissibility or any other incidental pleas seeking the termination of the proceedings.

 

Article 545

 

Appeal may be brought against other judgments independently of the judgments on the main issue only in cases specified by law.

 

SUB-SECTION II THE PARTIES

 

Article 546

 

The right of appeal shall be exercised by any party who has an interest where he has not renounced the same.

In non-contentious matters, means of appeal shall likewise be available to third persons to whom a judgment has been notified.

 

Article 547

 

In contentious matters, an appeal shall be directed against those who were the parties at first instance. All those who were parties may be respondents.

In non-contentious matters, the appeal may be admissible even in the absence of other parties.

 

Article 548

 

An appeal may be crossed incidentally by a respondent against the appellants as well as against the other respondents.

 

Article 549

 

A cross-appeal, against which issue is caused to be joined by a non-party to the appeal proceedings may likewise be brought by the latter who was a party at first instance.

 

Article 550

 

The cross-appeal or a provoked appeal instituted by other than a respondent who is caused to join issue, may be brought at any stage of the proceedings even though the person instituting it may be precluded from acting as an original appellant. In the latter case, it will not be entertained, notwithstanding the above, where the main appeal is not itself admissible.

The court may award damages against those persons who, in a dilatory intention, refrained from instituting a cross-appeal or a provoked appeal instituted by other than a respondent who is caused to join issue in due time.

 

Article 551

 

The cross or provoked appeal as above shall be brought in the same manner as incidental claims.

 

Article 552

 

Where there is joint and indivisible liability with regard to several parties, the appeal brought by one shall preserve the right of appeal of the others, subject to the latter joining themselves as parties to the proceedings.

In the same cases, an appeal directed against one of the parties shall reserve the appellant's right to join the others in the proceedings.

The court may order ex proprio motu the issue of proceedings against all interested parties.

 

Article 553

 

Where there several parties stand as an indivisible entity, an appeal by one shall relate to the others even though they have not been joined in the proceedings; an appeal brought against one of them shall not be admissible save where all of them are joined to the proceedings.

 

Article 554

 

Where they have an interest therein, persons who have neither been parties nor been represented at first instance or who appeared there in another capacity may intervene in an appeal.

 

Article 555

 

The same persons may be called before the court even for the purpose of entering judgment against them where the progress of the case demands that they be impleaded to the same.

 

Article 556

 

Persons having the capacity to resort to arbitration may renounce the right to an appeal. They may do so only in cases involving such rights which vest upon them an unfettered enjoyment.

 

Article 557

 

Renouncing a right of appeal may not be effected prior to the commencement of litigation.

 

Article 558

 

A renunciation shall have to be express or may result from the execution without reservation of a non-enforceable judgment.

The renunciation shall have no effect where, subsequently, another party shall duly lodge an appeal.

 

SUB-SECTION III MISCELLANEOUS PROVISIONS

 

Article 559

 

In cases where the main appeal is dilatory or abusive, the appellant may be ordered to pay a civil fine of F 100 to F 10 000, without prejudice to any claim for damages which may be brought against him.

Such fine, collected separately from the registration costs of the decision ordering the same, may not be collected from the respondents. The latter may obtain a certified copy of the decision in the enforceable form without being precluded therefrom by the non-payment of the fine.

 

Article 560

 

The appellate judge may award damages and interests against the person who lodges an appeal on the main issue after having failed to appear before the proceedings of first instance, without any lawful excuse.

 

SECTION II THE LEGAL SIGNIFICANCE OF AN APPEAL

 

SUB-SECTION I THE SIGNIFICANCE OF DEVOLUTIVE JOINDER OF ISSUE

 

Article 561

 

An appeal shall join issues in relation to a matter already determined before a court of appeal in order that they be adjudged de novo on a consideration of the facts and of the law.

 

Article 562

 

An appeal shall bring to the cognisance of the court only those heads of the judgment to which issue is joined expressly or impliedly and those subordinate to them.

The joinder of issue devolving shall relate to all matters where the appeal is not limited to specific heads, or where it contends for the annulling the judgment or where the subject-matter at issue cannot be considered except on the whole of the same.

 

Article 563

 

To support on appeal the claims submitted before a lower judge, parties may raise new grounds, produce new exhibits or offer new evidence.

 

Article 564

 

(Decree No. 81-500 of 12 May 1981, sec.25, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Parties may not submit to the court new claims except in view of a set -off, defeating an opponent's, or in relation to rulings on issues arising from the intervention of a third party, or in relation to the occurrence or manifestation of a fact.

 

Article 565

 

Claims shall not be considered as new where they pursue the same object as those submitted before the lower judge even where their foundation in law is different.

 

Article 566

 

The parties may make explicit their claims which were only virtually included in the pleadings submitted before the lower judge and may add thereto such other claims as are collateral, consequential or complementary thereto.

 

Article 567

 

Counter-claim shall likewise be admissible on appeal.

 

SUB-SECTION II EVOCATION

 

Article 568

 

Where the court of appeal is seised of a judgment containing a direction, or a judgment which, ruling on a procedural plea, has put an end to the proceedings, it may recall by way of evocation the points left unadjudicated where it deems it proper to dispose of the matter by virtue of a final disposition after having itself given, should the occasion arise, a direction.

The evocation shall not prevent the application of Articles 554, 555 and 563 and 567.

 

SECTION III FINAL PROVISIONS

 

Article 569

 

The executions of judgments improperly intituled as such for a forum of last resort may be stayed by the appellate judge at any time during the proceedings.

 

Article 570

 

The enforcement of the appellate judgment shall appertain to the court which has ruled as of first resort or, where the latter may not entertain the enforcement of its decisions, the Tribunal de grande instance.

Notwithstanding the above, the court of appeal may, even ex proprio motu, decide in its judgment to reserve its enforcement save where it appertains by law to another court; under the same reservation, it may also indicate the forum which will be apprised of the execution of its judgment, provided that the latter forum has jurisdiction to be apprised of judicial decisions.

 

CHAPTER II THE APPLICATION TO SET ASIDE

 

Article 571

 

An application to set aside shall aim at retracting a judgment delivered by default.

It shall only be available in favour of the defaulting party.

 

Article 572

 

The application to set aside shall bring back into issue, before the same judge, the points determined by default, so that a new ruling may be given on the facts and on the law.

The judgment made subject to an application to set aside shall be annulled only by the judgments which retracts it.

 

Article 573

 

(Decree No. 84-618 of 13 July 1984, sec.4 and 31, Official Journal of 18 July 1984 amendment JORF of 18 August 1984)

 

An application to set aside shall be instituted in the manner provided in relation to instituting proceedings before the court which has delivered the decision.

It may be made by way of a notification by and between avocats before courts where legal representation is not compulsory.

Where an application to set aside aims at retracting a decision of a court of appeal delivered by default in a matter governed by the procedure without compulsory legal representation, it shall be brought by a declaration that the party or any agent shall make or address by registered mail to the clerk's office-registry of the court which has pronounced itself. The application to set aside shall be managed and determined in accordance with the rules applicable before a court of appeal in cases where legal representation is dispensed with.

 

Article 574

 

The application to set aside shall have to contain the grounds relied upon by the defaulting party.

 

Article 575

 

In the cases where the application to set aside is instituted in the manner provided under Article 573 (sub-article 2) it shall have, on pain of inadmissibility, to be declared to the clerk's office-registry of the court which has delivered the decision by the avocat or avoué retained by the defaulting party within one month as from the day it is brought.

 

Article 576

 

The matter shall be managed and determined in accordance with the rules applicable to the court which has delivered the decision subject to the application to set aside.

 

Article 577

 

In the re-opened proceedings, the admissibility of the respective claims of the claimant and the defendant shall be assessed on a consideration of the original contentions according to ordinary rules.

 

Article 578

 

A person who causes a second judgment to be entered against him by default shall be precluded from instituting a new application to set aside.

 

SUB-TITLE III THE EXTRAORDINARY MEANS OF REVIEW

 

Article 579

 

Reviews by way of extraordinary means and the time-limit given for exercising the same shall not operate a stay of execution save where the law provides otherwise.

 

Article 580

 

Extraordinary means of review shall be available only in the cases specified by law.

 

Article 581

 

In cases of a dilatory or abusive review, its originator may be subjected to a civil fine of F 100 to F 10 000 without prejudice to any claim for damages which might be brought before the court seised of the review.

 

CHAPTER I THE THIRD-PARTY APPLICATION TO SET ASIDE

 

Article 582

 

A third-party application to set aside shall aim at retracting or varying a judgment in favour of the third-party who impugns it.

It shall bring back into issue, with regard to its originator, the points which admitted of a decision which the latter shall challenge so that a new ruling may be given on the facts and on the law.

 

Article 583

 

(Decree No. 81-500 of 12 May 1981, sec.26, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

Shall be admissible to bring a third-party application to set aside any person who shows an interest, provided that he was neither a party nor represented in the judgment which he impugns.

The creditors and other assigns of a party may, notwithstanding the above, lodge a third-party application to set aside a judgment delivered on a fraudulous exercise in relation to their rights or where they raise grounds which are proper to them.

In non-contentious matters, a third-party application to set aside shall be available only to third parties who have not been notified; it may be likewise against judgments delivered as of last resort even where the decision has been notified to them.

 

Article 584

 

Where liability is indivisible with regard to several parties concerned by the impugned judgment, the third-party application to set aside shall be admissible only where all the parties are called in the proceedings.

 

Article 585

 

All judgments may be subjected to a third-party application to set aside save where the law provides otherwise.

 

Article 586

 

(Decree No. 81-500 of 12 May 1981, sec.27, Official Journal of 14 May 1981 amendment JORF of 21 May 1981)

 

The third-party application to set aside shall be available as a main issue for thirty years as from the judgment save where the law shall provide otherwise.

It may be brought without any bar in time against a judgment given in the course of proceedings relating to another case by the person against whom enforcement is sought.

In contentious matters, notwithstanding the above, it shall only be admissible, on behalf of a third party in relation to whom the judgment has been notified, within two months to be reckoned from the notification provided that the same indicates clearly the time-limit available to him as well as to the methods whereby a review may be instituted. It shall be likewise in non-contentious matters where a decision of last resort has been notified.

 

Article 587

 

A third-party application to set aside instituted as the main issue shall be brought before the court from which the impugned judgment emanated.

The decision may be delivered by the same judges.

Where the third-party application to set aside is directed against a judgment delivered in a non-contentious matter, it shall be brought, managed and determined in accordance with the rules pertaining to contentious procedure.

 

Article 588

 

A third-party application to set aside which is incidental to a dispute of which a court is seised shall be ruled upon by the latter where it is a superior court to the one which has delivered the judgment or, where, it being a court of a same level, no rule pertaining to public policy preventing the same. The third-party application to set aside shall hence be brought in the same manner as provided for in relation to incidental claims.

Otherwise, an incidental third-party application to set aside shall be brought, by way of a main claim, before the court which has delivered the decision.

 

Article 589

 

The court before which the impugned judgment is produced may, depending on the circumstances, pass or defer its judgment.

 

Article 590

 

The judge seised on a third-party application to set aside on the main issue or incidentally may stay the execution of the impugned judgment.

 

Article 591

 

The decision which finds in favour of a third-party application to set aside shall retract or vary the impugned judgment only on the points prejudicial to the third-party making the application. The original judgment shall maintain its effects in relation to the other parties even on the points set aside.

Notwithstanding the above, the authority of res judicata in relation to third-party application to set aside shall operate with regard to all the parties called to the proceedings in application of Article 584.

 

Article 592

 

The judgment delivered on third-party application to set aside shall be subject to the same reviews as the decisions of the court which has delivered it.

 

CHAPTER II THE APPLICATION FOR RECONSIDERATION

 

Article 593

 

An application to reconsider shall aim at retracting a judgment which has become res judicata so that a new ruling may be given on the facts and on the law.

 

Article 594

 

The reconsideration may be requested only by the persons who were parties to or represented in relation to the judgment.

 

Article 595

 

An application to reconsider shall be available only on the following grounds:

1. Where it has come to light, subsequent to judgment, that the decision has been obtained by fraud on behalf of the party in whose favour it was delivered;

2. Where, since the judgment, decisive exhibits which have been withheld by the act of another party have been discovered;

3. Where it has been adjudicated on exhibits which, since the judgment, have been acknowledged or judicially declared to be false;

4. Where it has been adjudicated on statements, testimonies or oaths which, since the judgment, have been judicially declared false.

In all these cases, the application shall be admissible only where its originator has not been able, without any fault on his behalf, to raise, before that the judgment carry the authority of res judicata, the ground on which he relies.

 

Article 596

 

The time-limit for an application to reconsider shall be two months.

It shall run as from the date on which the party has knowledge of the grounds for the reconsideration upon which he relies.

 

Article 597

 

All the parties to an impugned judgment shall have to be called to the proceedings for the reconsideration by the originator of the application on pain of inadmissibility.

 

Article 598

 

An application to reconsider shall be lodged by way of citation.

Notwithstanding the above, where it is directed against a judgment given in the course of other proceedings between the same parties before the court which delivered the judgment, the reconsideration may be requested in the manner provided for the presentation of the grounds of defence.

 

Article 599

 

Where a party has lodged or declares that he intends to lodge a petition for reconsideration against a judgment given in proceedings pending before a court other than the one which has delivered the same, the court seised of the matter in which it was given may, depending on the circumstances, shall pass or defer its judgment until the application to reconsider has been determined by the competent court.

 

Article 600

 

An application to reconsider shall be intimated to the ministère public.

 

Article 601

 

Where the judge declares the application admissible, he shall determine in pronouncing the same judgment the substantive issues save where there is need for a further management.

 

Article 602

 

Where the reconsideration is justified only against one point of the judgment, such point alone shall be revised save where the other one are related to it.

 

Article 603

 

A party shall not be admissible to apply for a reconsideration of a judgment which he has already impugned by this very same procedure save where it is on grounds which came to light subsequently.

The judgment which shall rule upon an application to reconsider may only be impugned by this very procedure itself.

 

CHAPTER III THE PETITION IN CASSATION

 

Article 604

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

 

A petition in cassation shall tend to ask the Cour de cassation to quash a judgment owing to an error on a point of law.

 

SECTION I THE AVAILABILITY OF PETITION IN CASSATION

 

Article 605

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The petition in cassation shall be available only against judgments delivered as of last resort.

 

Article 606

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Judgments of last resort which shall determine in their holdings a part of the main issue in dispute and shall give directions or shall grant a provisional order may be impugned by way of a petition in cassation in the same manner as judgments determining the totality of the main issues as of last resort.

 

Article 607

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

May likewise be impugned by a petition in cassation judgments of last resort which, ruling on a plea as to the procedure, a plea seeking a peremptory declaration of inadmissibility or any other incidental plea, disposed thereby of the proceedings.

 

Article 608

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Judgments of last resort other than the above may not be impugned by way of a petition in cassation independently of the relevant judgments determining the substantive issues, save where it is provided by law.

 

Article 609

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Any party who has an interest shall be admissible to file a petition in cassation even where the holding which is unfavourable to him does not benefit his opponent.

 

Article 610

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

In non-contentious matters, the petition shall be admissible even in the absence of an opponent.

 

Article 611

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

In contentious matters, the petition shall be admissible even where a judgment has been pronounced to the benefit of or against a person who was not a party to the proceedings.

 

Article 611-1

 

(Inserted by Decree No. 99-131 of 26 February 1999, sec.4, Official Journal of 27 February 1999 in force on 1 March 1999)

 

Further to cases where the notification of the decision which is amenable to a petition is incumbent upon the registry of the court which has delivered the same, the petition in cassation shall be admissible only where the decision which it impugns has first been signified.

 

Article 612

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The time-limit for a petition in cassation shall be two months save where provisions to the contrary shall apply.

 

Article 613

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The time-limit shall run, with regard to a decision in default, as from the day where an application to set aside shall be no more admissible.

 

Article 614

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The admissibility of an incidental petition, even a provoked petition instituted by other than a respondent who is caused to join issue in due time, shall follow the rules governing cross-appeals subject to provisions of Article 1010.

 

Article 615

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

In case of indivisibility with regard to several parties, the petition of one of them shall not be devoid of any effect in relation to the others even where the latter have not been joined to the proceedings in cassation.

Under the same circumstances, the petition filed against one shall only be admissible where all have been called to the proceedings.

 

Article 616

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Where the judgment may be rectified by virtue of Articles 463 and 464, the petition in cassation shall be available, in the manner provided under these present Articles, only against a judgment ruling on the rectification.

 

Article 617

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The contradiction in judgments may be relied upon where the a peremptory plea founded on the res judicata has in vain been argued before the trial judges.

In this case, the petition in cassation shall be directed against the subsequent judgment in date; where the contradiction has been recorded, it shall be resolved to the benefit of the first.

 

Article 618

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Inconsistencies in a judgment may, further, as an exception to Article 605, be relied upon where two decisions, albeit not of last resort, are incompatible with each other and shall result in any of them being amenable to an ordinary review; the petition in cassation shall hence be admissible, even where one of the decision has already been impugned by way of a previous petition in cassation which was dismissed.

In the latter event, the petition may be filed even after the expiration of the time-limit provided under Article 612. It shall have to relate to the two decisions concerned; where an inconsistency has been established, the Cour de cassation shall quash one of the decisions or, where the same appears necessary, both of them.

 

Article 618-1

 

(Inserted by Decree No.81-500 of 12 May 1981, sec.28, Official Journal of 14 May 1981, amendment JORF of 21 May 1981)

 

The procureur général attached to the Cour de cassation may, on a referral of a judgment to the latter in view to clarifying of the law, invite the ministère public attached to the ad quo court which delivered judgment to notify such to the parties in relation to the same. The notification shall be effected by the clerk of the ad quo court by recorded letter with the advice of delivery slip sought.

 

SECTION II THE SIGNIFICANCE OF A PETITION IN CASSATION

 

Article 619

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

New grounds shall not be admissible before the Cour de cassation.

Notwithstanding the above, new grounds may be raised for the first time where they are, but subject to any contrary provision on that issue:

1° grounds strictly based in law;

2° grounds arising out of the impugned decision.

 

Article 620

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The Cour de cassation may dismiss the petition by substituting a ground strictly based in law to an erroneous ground; it may effect the same in relation to an erroneous but which is superfluous.

It may, save where provision to the contrary shall apply, quash the impugned decision in raising ex proprio motu a point of law by way of a strict interpretation.

 

Article 621

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

(Decree No.86-585 of 14 March 1986, sec.3, Official Journal of 19 March 1986)

 

Where the petition in cassation is dismissed, the party who brought it shall be divested of his locus standi to bring afresh a new petition against the same judgment, save as referred to Article 618.

It shall be likewise where the Cour de cassation shall dispose of the matter as not admitting a cassation and thereby refusing to take cognisance of the same, or shall declare the petition inadmissible or shall pronounce the operation of a foreclosure in relation to the petition.

The respondent who has not filed an incidental petition or a provoked one wherein he is caused to join issue against the impugned judgment within the time-limit granted under Article 1010 shall not be admissible to institute the review on the main issue in relation to the impugned judgment.

 

Article 622

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Judgments delivered by the Cour de cassation shall not be amenable to an application to set aside.

 

Article 623

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The cassation may relate to the whole or part of a quashed judgment. It shall be in part where it affects only certain heads which are severable from the others.

 

Article 624

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The censure attached to a cassation judgment shall be limited to the consequence of a point which constitutes the foundation of the cassation except in case of indivisibility or necessary dependency.

 

Article 625

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

On the points which it affects, a cassation shall place the parties at the stage where they were before the judgment which is being quashed.

It shall carry, without any need for a new decision, the annulment of all decisions subsequent to the quashed judgment, decisions relating to the application or enforcement of the aformentioned quashed judgment or such other decisions which are linked to the same.

 

Article 626

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

As provided under Article L. 131-4 of the Code of the Judicial Organisation: “On cassation, the matter shall be remitted, save where provisions to the contrary shall apply, before a court of the same nature as the one from which emanated the judgment or appeal judgment which is being quashed or it shall be remanded before the same forum but consisting of different judges”.

 

Article 627

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

As it is provided under Article L. 131-5 of the Code of the Judicial Organisation: “The Cour de cassation may quash without further referring the matter before a forum where the cassation does not imply that there is need to adjudicate on the main issue.

It may, further, in quashing without a remission, put an end to the dispute where the facts, as ascertained supremely by the fact-trier judge, allow it to apply the appropriate rule of law.

In the latter event, it shall consider the issue of taxable charges incidental to proceedings before a trial judge.

The judgment shall carry compelled enforcement.

 

Article 628

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

(Decree No. 85-1330 of 17 December 1985, sec.2, Official Journal of 18 December 1985 in force on 1 January 1986)

 

The unsuccessful petitioner in cassation may, on the review being considered to be abusive, be ordered to pay a civil fine of an amount which may not exceed F 20 000 and, within the same limits, a compensation to the respondent.

 

Article 629

 

(Decree No. 85-1330 of 17 December 1985, sec.3, Official Journal of 18 December 1985 in force on 1 January 1986)

 

Without prejudice to the application of provisions of Article 700, the Cour de cassation may leave the whole or a part of the taxable charges to be borne by a party other than the one who is unsuccessful.

 

Article 630

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The judgment shall carry the force of a compelled enforcement in relation to a payment of the fine, indemnity and the taxable charges.

 

Article 631

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Before the court to which the matter is referred back, the management shall be resumed at the stage of the procedure reached up to the point where it may not be affected by the provision of the cassation.

 

Article 632

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The parties may rely on new grounds in support of their claims.

 

Article 633

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The admissibility of new claims shall be subject to the rules which shall apply in relation to the ad quo court whose decision has been quashed.

 

Article 634

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The parties who do not set out new grounds or new claims shall be deemed to confine themselves to the points and claims which they have submitted to the ad quo court whose decision has been quashed. It shall be likewise for those who do not appear.

 

Article 635

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The intervention of a third party shall be subject to the same rules as those which apply before the ad quo court whose decision has been quashed.

 

Article 636

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The persons who, having been a party before the ad quo court whose decision has been quashed, and who were not so before the Cour de cassation, may be joined in the new proceedings or may voluntarily intervene therein, where the cassation shall interfere with their rights.

 

Article 637

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

Such persons may, in the same manner, take the initiative to seise the court to which the matter has been referred.

 

Article 638

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The matter shall be tried again in fact and in law by the court to which the matter has been referred except in relation to those issues not affected by the cassation.

 

Article 639

 

(Decree No. 79-941 of 7 November 1979, sec.2, Official Journal of 9 November 1979 in force on 1 January 1980)

 

The court to which the matter has been referred to shall consider the issues of taxable charges outlayed before the ad quo trial courts as well as those incidental to the quashed decision.

 

TITLE XVII TIME-LIMITS, PROCESS OF HUISSIER DE JUSTICE AND NOTIFICATIONS

 

CHAPTER I THE COMPUTATION OF TIME-LIMITS

 

Article 640

 

Where a process or a formality has to be accomplished before the expiration of a time-limit, the latter shall have as its point of origin the date of the process, of the event, of the decision or of the notification which caused it to run.

 

Article 641

 

Where a time-limit is expressed in days, the day of the process, event, decision or notification shall not be counted as exclusive to the reckoning.

Where the time-limit is expressed in months or years, it shall expire on the day of the last month or year bearing the same date as the day of the process, of the event, of the decision or of the notification which causes the time-limit to run. In the absence of an identical date, the time-limit shall expire on the last day of the month.

Where a time-limit is expressed in months and in days, the months shall be counted first, then the days.

 

Article 642

 

All time-limits shall expire on the last day at midnight.

The time-limit which would normally expire on a Saturday, Sunday or a public or bank holiday shall be extended to and shall be inclusive of the first following working day.

 

Article 642-1

 

(Inserted by Decree No. 76-1236 of 28 December 1976, sec.10, Official Journal of 30 December 1976)

 

The provisions of Articles 640 and 642 shall likewise be applicable to time-limits within which registration and other formalities of publication shall have to be effected.

 

Article 643