By an act of 28 May 2019, the plaintiff appealed against the judgment rendered by the executive judge and submitted his findings to the register on 11 July 2019, before the defendant appointed a lawyer.
The case was quickly recorded by the chairman of the chamber to which it was transferred according to the conclusion of September 3, 2019.
The appeal was declared invalid by an order of 19 September 2019 and upheld by a judgment of the Paris Court of Appeal of 16 January 2020 on the ground that the applicant failed to notify the defendant of his findings within the time period provided for in Article 911 of the Code of Civil Procedure.
According to the first-instance judges, the plaintiff had a period of one month from the date of submission of its findings to the register on July 11, 2019, to serve its findings to the defendant, who was not a lawyer, no matter what the notice of fixation was sent after that date. …
The Court of Cassation overturns and reverses the decision of the appellate instance on the ground that it follows from Articles 905, 905-2 and 911 of the Code of Civil Procedure that “when the appeal automatically falls within the immediate effect of the order, the applicant, who has submitted his findings to the register within the prescribed period and before the defendant appoints a lawyer, has two months after the notice of the hearing of the case at short notice to notify the defendant or his appointed lawyer of his findings at that time. “
The judges of the Quai de l’Horloge here rightly apply the rule resulting from the combination of Articles 911 and 905-2 of the Code of Civil Procedure.
The Court of Cassation reiterates that, according to the first of these texts, the deadline for the delivery of the opinion of the in breach of obligation begins with the expiry of the deadline for the conclusion (Civ. 2e, June 27, 2013, n ° 12-20.529 P, Dalloz actualité, July 15. 2013, obs. Mr. Kebir; D. 2013.2058, cron. H. Adida-Kanak, R. Salomon, L. Leroy-Gissinger and F. Renaud-Malignac ; in the same place… 2014.795, obs. N. Fricero ; JCP 2013.795, obs. Gerbay; in the same place. 1225, No 9, obs. Serine; in the same place. 1232, no.8, obs. Amrani-Mecca; Gas. Friend. July 20, 2013, p. 13 (1re especially), notes Piau; Doctor et al. 2013.220, Poisson’s note).
It follows from the provisions of the second article that the time limit given to the appellant for the conclusion begins to be calculated on the day of receipt of the notification of the hearing of the case in a short time (Civ. 2e, 22 October 2020, n ° 19-25.769 P).
Thus, from the combination of these two articles, it follows that the appellant has, under threat of losing his notice of appeal, a two-month period from the date of notification of the consideration of the case in a short time. To convey his findings to the defendant who did not appoint a lawyer.
In the present case, the delivery by the appellant of his findings to the register on 11 July 2019, before the fixation of the case in a short time on 3 September 2019, did not affect the commencement of the proceedings. the deadline on the first of these dates.
In any case, the deadline started to expire on the commit notice date of September 3, 2019 and expired two months later, i.e. November 3, 2019.
In accordance with the ruling issued by the Second Chamber on October 22, 2020 (tentatively), the situation for the defendant will be specific.
In fact, in the event of an appeal against a decision that necessarily falls under the short-term appeal procedure, the defendant must reach a finding within one month of the appellant’s withdrawal, regardless of whether the notification of fixation was notified of this or not. sides. The time limit for the service of opinions in respect of the co-defendant in breach of his obligations begins to be calculated after the expiration of the time limit for the conclusion, regardless of whether the case was resolved as soon as possible.