Incidents of Litigation: Interruption, Extinction, and Discontinuance
Explanation
This explanation serves as an illustrative educational tool to simplify the rules, and is not a substitute for the explicit legal texts presented separately. This section addresses the incidents of litigation represented by the interruption of the trial, its abatement, and the discontinuance of it or of the claimed right.
The interruption of the trial (l'interruption de l'instance) has a direct effect on the running time limits and results in the nullity of all procedures that take place during the interruption, unless the litigant to whom the cause of interruption relates expressly or implicitly waives the right to invoke the nullity (la nullité). The trial is resumed (la reprise de l'instance) either by notifying the person who replaces the litigant who died, lost their capacity to litigate, or lost their standing at the request of the other litigant, or by notifying the latter at the request of the former. It is also resumed if the heir of the deceased, the representative of the incapacitated person, or the person who lost their standing attends the scheduled hearing and proceeds with it.
As for the abatement of the trial (la péremption d'instance), its request is submitted to the court before which the action is brought either by a petition notified to the litigant, or by a defense raised against the litigant who takes any procedure to proceed with the trial after the expiration of two years. It is obligatorily required, under penalty of inadmissibility, to invoke the abatement before making any request, plea, defense, or taking any procedure related to the trial. The abatement period applies to all natural and legal persons, and even to those lacking or having diminished capacity, while preserving their right of recourse against their guardians or administrators. The trial expenses (les dépens) adjudged to be abated are borne by the person who brought the action.
Regarding discontinuance (le désistement), its completion is contingent as a general rule on the consent of the defendant. An exception to this is the case where the defendant, at the time of the discontinuance, has not submitted a response containing a defense on the merits (la défense au fond), a plea of inadmissibility (la fin de non-recevoir), or a counterclaim (la demande reconventionnelle), in which case their consent is no longer required.
Finally, the plaintiff may, at any stage of the trial, waive the claimed right itself. This waiver results in the forfeiture of the right and the termination of the action, while obligating the plaintiff to pay the expenses and compensation to their opponent if applicable, and obligating them to deliver the documents related to the right to the opponent. It should be noted that a partial waiver of the right, whether express or implied, does not in itself constitute a total waiver of this right.
Official legal articles
Think deeper
How does the right of the litigant to whom the cause of interruption relates to waive the invocation of nullity connect with the methods of resuming the proceedings in the action and their direct attendance at the scheduled hearing?
Flashcards
What is the effect on the procedures that take place during the interruption of the trial?
They are subject to nullity, unless the litigant to whom the cause of interruption relates expressly or implicitly waives the right to invoke the nullity (Article 507).
How is the trial resumed if the heir of the deceased attends the hearing scheduled for it?
The trial is resumed if the heir of the deceased attends the hearing that was scheduled for it and proceeds with it (Article 508).
What is the mandatory procedural deadline for submitting the plea for the abatement of the trial under penalty of inadmissibility?
It must be submitted before making any request, plea, defense, or taking any procedure related to the trial (Article 511).
Does the period specified for the abatement of the trial apply to those lacking or having diminished capacity?
Yes, it applies to those lacking or having diminished capacity, and they retain the right of recourse against their guardians or administrators (Article 516).
Who bears the expenses of the trial that has been adjudged to be abated?
The expenses of the trial that has been adjudged to be abated fall on the person who brought the action (Article 517).
When is the consent of the defendant not required for the completion of the discontinuance?
If the defendant, at the time of the discontinuance, has not submitted a response containing a defense on the merits, a plea of inadmissibility, or a counterclaim (Article 519).
What is the effect of a partial waiver of a right, whether express or implied?
It does not in itself constitute a total waiver of this right (Article 527).
Practice questions
A judicial procedure was taken during the period of the interruption of the trial. What is the correct legal description of the fate of this procedure?
The legal rule stipulates the nullity of all procedures that take place during the interruption, unless the litigant to whom the cause of interruption relates expressly or implicitly waives the right to invoke the nullity (Article 507).
What is the period stipulated by law that must expire to enable the invocation of the plea for the abatement of the trial against the proceedings?
The law stipulates submitting the plea against the litigant who takes any procedure to proceed with the trial after the expiration of two years (Article 511).
The defendant submitted a substantive defense requesting the dismissal of the action, then requested in the same brief a judgment for the abatement of the trial due to the expiration of the period. What is the fate of the abatement request?
The law requires invoking the plea for the abatement of the trial before making any request, plea, defense, or procedure, under penalty of inadmissibility (Article 511).
If the trial brought by a person with diminished capacity is adjudged to be abated, who bears the expenses of this trial?
The trial expenses fall on the person who brought the action (Article 517), and the period applies to those with diminished capacity with the right of recourse against their guardians (Article 516).
The plaintiff declared their discontinuance of the trial before the defendant submitted any response on the merits, plea of inadmissibility, or counterclaim, and the defendant objected. What is the legal result?
The consent of the defendant is no longer required if, at the time of the discontinuance, they have not submitted a response containing a defense on the merits, a plea of inadmissibility, or a counterclaim (Article 519).
What is the effect resulting from the plaintiff's waiver of the claimed right according to the law?
The waiver of the claimed right forfeits the right, terminates the action, and obligates the plaintiff to pay the expenses and the compensation due to their opponent if applicable, and to deliver the documents (Article 527).
Case problems
Samir filed a civil action against Rami, and the procedures therein completely stopped for a period exceeding two years without any measure being taken. After the expiration of the two years, Samir submitted a request to schedule a new hearing to proceed with the trial. Rami was notified of the date, attended the hearing, and submitted a memorandum which he began by requesting the dismissal of the action due to the incorrectness of its facts on the merits, then concluded his memorandum with a plea for the abatement of the trial based on the expiration of the two years according to the law, demanding at the same time that Samir bear the trial expenses.
Model answer
A plea for the abatement of the trial may be submitted against the litigant who takes any procedure to proceed with it after the expiration of two years (Article 511).
However, the law required submitting the petition or invoking the plea for the abatement of the trial before making any request, plea, defense, or taking any procedure, under penalty of inadmissibility (Article 511).
Applying this to the facts of the dispute, it is evident that Rami began his memorandum by presenting a defense on the merits related to the correctness of the facts, and then subsequently made the plea for the abatement of the trial.
Rami's conduct results in the inadmissibility of his plea for the abatement of the trial due to his violation of the mandatory order stipulated by law, as he was obligated to invoke the abatement before presenting any substantive defense.
Accordingly, the court dismisses the plea for being formally inadmissible, even if the two-year period had actually expired.
Self-grading rubric
During the course of the litigation in an action brought by Fouad against Jad, Jad died, which led to the interruption of the trial. During the interruption period, Fouad submitted a petition to appoint an expert in the dispute, and the court decided to add it to the file. Later, the hearing scheduled to consider the action was held, and the heir of the deceased Jad attended and proceeded with the trial. In the same hearing, he discussed the expert's mission and requested determining his fees without raising any objection regarding the nullity of the expert's petition. Explain the effect of the heir's attendance and the fate of the procedure to appoint the expert.
Model answer
The trial is resumed if the heir of the deceased attends the hearing that was scheduled for it and proceeds with it (Article 508).
Based on this, the attendance of Jad's heir at the scheduled hearing and his proceeding with the action achieves the resumption of the trial correctly according to the law.
As for the petition to appoint the expert submitted by Fouad during the interruption, the general rule is that it is null, as all procedures that take place during the interruption are null (Article 507).
However, the law established an explicit exception, meaning the nullity ceases if the litigant to whom the cause of interruption relates expressly or implicitly waives the right to invoke it (Article 507).
Whereas the heir of the deceased proceeded and discussed the expert's mission and fees without raising the nullity, his action is considered an implicit waiver of invoking the nullity of the procedure that took place during the interruption, thus the nullity ceases and the procedure becomes valid.
Self-grading rubric
Jihad filed an action against Hani demanding the principal debt and compensation for the delay. Hani did not submit any response containing a defense on the merits, a plea of inadmissibility, or a counterclaim. After a period, Jihad submitted a request stating her discontinuance of the trial, and she also explicitly declared her partial waiver of the claim for compensation for the delay only. Hani opposed the discontinuance of the trial, insisting on pursuing it, and pleaded that her waiver of the compensation is considered a total waiver of the principal debt as well, forfeiting her right entirely. What is the legal position regarding Hani's objection and his defense?
Model answer
The discontinuance is not completed except with the consent of the defendant, but this consent is no longer required if the defendant, at the time of the discontinuance, has not submitted a response containing a defense on the merits, a plea of inadmissibility, or a counterclaim (Article 519).
Since Hani did not submit any response containing any of those pleas or requests, his consent is not required, and Jihad's discontinuance of the trial is completed without regard to his objection.
Regarding the claimed right, a partial waiver of a right, whether express or implied, does not in itself constitute a total waiver of this right (Article 527).
It follows from this that Jihad's express waiver of the compensation portion forfeits her right to compensation only, and is not considered a total waiver of the principal debt, and Hani's plea for the forfeiture of the principal debt is contrary to the explicit text of the law (Article 527).
The plaintiff is obligated to pay the expenses and compensation to her opponent if applicable, along with delivering to him the documents related to the waived right (Article 527).