Opposition to Default Judgments
Explanation
Clarificatory note: This presentation is intended for explanation and simplification and is not in itself a legislative text, as the legal texts are presented literally and independently in their designated place. The given legal provisions address the rules regulating the methods of recourse (les voies de recours) and the procedures for orders on petition (les ordonnances sur requête), and confirm that a request to annul a judgment is not permissible except by exclusively following the methods of recourse specified in the law, subject to the right of the harmed third party to annul the ex parte order (Article 602).
Exercising recourse requires the availability of capacity and legal interest, as recourse against a judgment is only accepted from the judgment debtor or the party harmed by it. Recourse is not accepted from someone who has explicitly or implicitly acquiesced to the judgment (l'acquiescement) or from someone who has been granted all their requests, unless the law provides a specific text to the contrary.
The general rule for judgments issued during the course of the litigation (les jugements avant dire droit) is that they may not be independently appealed except with the final judgment terminating the trial. However, the legislator has excepted exclusive cases where direct recourse is permissible, including: a judgment ordering the stay of the trial, the rejection of a request for intervention or joinder, a judgment directing or rejecting the decisive oath (le serment décisoire), judgments of partition of property or liquidation, provisional judgments, and a judgment deciding a point of dispute that is provisionally enforceable.
Recourse against the excepted judgments issued during the trial does not divest the court of jurisdiction over the remaining aspects of the dispute, nor does it suspend the continuation of the trial proceedings in everything not related to the appealed judgment.
The preclusive time limits for the right of recourse (les délais de recours) run from the date of notification of the judgment (la notification), unless the law specifies another date for their commencement. This time limit runs simultaneously against the party requesting the notification and the notified party at the same time.
As for an order issued on petition, it automatically lapses if it is not submitted for execution within thirty days from its issuance without recourse, or from the date of rejection of the recourse lodged against it. This lapse (la déchéance) does not prevent the issuance of a new order. Furthermore, bringing the dispute before the trial court does not prevent the judge who issued the order from retracting or amending it.
Official legal articles
replace · 1985-03-28: Open the official text
Think deeper
How does the principle of the recourse time limit running simultaneously against the party requesting notification and the notified party integrate with the rule prohibiting recourse by someone who has been granted all their requests or who has acquiesced to the judgment?
Flashcards
What is the only avenue permitted by law to request the annulment of a judicial judgment?
Exclusively using the methods of recourse specified in the law, subject to the right of the harmed third party to annul the ex parte order (Article 613 and Article 602).
Who is entitled to lodge recourse against a judicial judgment, and who is legally prohibited from doing so?
The judgment debtor or the harmed party is entitled to lodge recourse, while it is prohibited for someone who acquiesced to the judgment or was granted all requests (Article 614).
When is it permissible to lodge recourse against judgments issued during the trial as a general rule?
It is not permissible to lodge recourse against them except with the judgment that terminates the trial, with the exception of legally specified cases (Article 615).
What is the effect of recourse against one of the excepted judgments issued during the trial on the court's jurisdiction?
It does not divest the court of jurisdiction over the remaining points of the dispute, nor does it prevent proceeding with the trial in everything not related to the appealed judgment.
When does an order issued on petition legally lapse, and does its lapse prevent the issuance of another one?
It lapses if not submitted for execution within thirty days of its issuance or of the rejection of the recourse against it, and the lapse does not prevent the issuance of a new order (Article 612).
From what date does the preclusive time limit for the right of recourse run, and against whom does this time limit run?
The time limit runs from the date of notification of the judgment, and it runs simultaneously against the party requesting the notification and the notified party (Article 616).
Practice questions
In which case is a litigant precluded from exercising recourse against a judgment according to general rules?
Recourse is not accepted from someone who acquiesced to the judgment or from someone who was granted all their requests unless the law provides otherwise (Article 614).
What is the specified time limit for the lapse of an order issued on petition if it is not submitted for execution when no recourse has occurred?
An order issued on petition lapses after thirty days from the date of its issuance if it is not submitted for execution in the event no recourse is lodged against it (Article 612).
Which of the following judgments issued during the trial may be independently appealed before the final judgment?
The judgment ordering the stay of the trial is an explicit exception that allows for independent recourse before the final judgment (Article 615).
How does the preclusive time limit for the right of recourse run legally?
The time limit runs from the date of notification of the judgment, and it runs simultaneously against the party requesting the notification and the notified party (Article 616).
To which authority is the objection against an order issued by the president of the appellate chamber submitted?
The objection against the order issued by the president of the appellate chamber is submitted to this chamber itself (Article 610).
If a litigant lodges recourse against a judgment issued for the partition of joint property during the trial, what is the effect of this on the course of the lawsuit?
Recourse against the excepted judgments does not divest the court that issued the judgment of jurisdiction over the remaining points of the dispute, nor does it prevent proceeding with the trial in everything not related to the appealed judgment (Article 615).
Case problems
A first-instance judgment was issued ordering the defendant to pay financial compensation to the plaintiff, granting the plaintiff all their requests stated in the statement of claim. The defendant signed an official written declaration of their acquiescence to the judgment and commitment to it, but after twenty days, they retracted and lodged recourse against the judgment. The plaintiff, in turn, also lodged recourse demanding an increase in compensation. Each party argued for the inadmissibility of the other's recourse. How should these two recourses be decided based on the legal texts?
Model answer
Regarding the plaintiff's recourse: Recourse is not accepted from someone who has been granted all their requests unless the law provides otherwise (Article 614). Since the judgment granted the plaintiff all their requests without exception, their recourse becomes formally inadmissible due to the absence of interest.
Regarding the defendant's recourse: Recourse is not accepted from someone who acquiesced to the judgment unless the law provides otherwise (Article 614). Since the defendant declared their explicit written acquiescence to the judgment, they have waived their right to it, and their subsequent retraction is not considered.
Conclusion: It must be ruled that both recourses are inadmissible in direct application of the legal rules that prevent recourse upon acquiescence or fulfillment of all requests (Article 614).
Self-grading rubric
A petitioner obtained an order on petition to establish an urgent situation, and did not submit it to the execution department until forty days had passed since its issuance without anyone lodging recourse against it. When their opponent invoked the lapse of the order, the petitioner replied that the dispute was already before the trial court, which preserves the effectiveness of the order, and simultaneously asked whether they had the right to obtain a new order in case their current request was rejected. How is this dispute addressed legally?
Model answer
An order issued on petition lapses if it is not submitted for execution within thirty days from the date of its issuance in the event no recourse is lodged against it (Article 612). Since the petitioner delayed for forty days, the order is considered lapsed by operation of law.
The petitioner's invocation of the existence of the dispute before the trial court does not suspend the time limit for the lapse. Bringing the case to the trial court does not prevent the judge who issued the order from retracting or amending it (Article 611), nor does it suspend the penalty of lapse (Article 612).
Regarding the possibility of issuing a new order, this lapse does not prevent the issuance of a new order (Article 612). Accordingly, they have the right to submit a new and independent request.
Self-grading rubric
In a lawsuit related to the liquidation of a company, the court issued a judgment rejecting a request for the joinder of a third-party guarantor submitted by one of the partners, and the judgment also included a provisionally enforceable clause separating the disputed share of one of the partners. The litigant immediately lodged recourse against the judgment during the course of the trial, so the other litigant argued that recourse is not permissible except with the final judgment and requested that the court be compelled to stay all litigation proceedings in the lawsuit. What is the sound legal position for these two procedures?
Model answer
The general rule is the prohibition of recourse against judgments issued during the trial except with the final judgment that terminates the litigation (Article 615).
However, the law explicitly excepted the judgment rejecting a request for joinder, the judgment ordering the liquidation of a company, and the judgment deciding a provisionally enforceable point of dispute (Article 615). Accordingly, direct recourse against this judgment is exceptionally acceptable and legally valid.
As for the request to stay all proceedings and divest the court of jurisdiction, it is legally rejected. Recourse against the excepted judgments does not divest the court that issued the judgment of jurisdiction over the remaining points of the dispute, nor does it prevent proceeding with the trial in everything not related to the appealed judgment (Article 615).