Implied Acquiescence to a Judgment: Beware of Losing Your Right of Appeal

Imagine: you own a plot of land in Saint-Gilles, in the Gard. Your neighbour has built a fence that encroaches on your land. You take them to court to assert your property right (possessory action) and request a boundary determination (official delimitation of boundaries). The court renders a judgment: it states that your possessory action is time-barred (too late to act), but orders an expert assessment for the boundary determination. You participate in the expert assessment without making reservations. Later, you want to appeal the inadmissibility of the possessory action. The court of appeal tells you: "You participated in the expert assessment, therefore you accepted the judgment, you can no longer appeal." Unfair, isn't it?

But what exactly does this change? This decision of the Court of Cassation of 25 February 1987 (No. 85-12.491) answers a crucial question: does the fact of executing part of a judgment (such as participating in an expert assessment) amount to a waiver of the right to contest the other parts? The answer is no, unless the judge explains why the acceptance of one provision implies the acceptance of another.

In short, the Court of Cassation overturned the decision of the court of appeal which had failed to provide reasons for its decision. It held that participating in an expert assessment is not, in itself, an acquiescence (acceptance) of the inadmissibility of the possessory action. These are two distinct matters. This decision protects litigants against implied waivers being too easily inferred.

The Facts: An Everyday Story

Mr X, owner of a house in Saint-Gilles, notices that his neighbour, Mr Y, has moved the boundary fence several metres, encroaching on his land. For years, the boundary between the two properties has been unclear. Mr X decides to take legal action: he brings two claims simultaneously. The first is a possessory action (to protect his possession and stop the disturbance). The second is an action for boundary determination (to officially determine the boundary of the lands).

The Tribunal de grande instance of Nîmes renders an initial judgment. Surprise: it declares the possessory action inadmissible as time-barred (the one-year limitation period for possessory actions had expired). However, it orders an expert assessment for the boundary determination. Mr X, although disappointed with the first claim, participates in the expert assessment without making reservations. He hopes that the boundary determination will prove him right on the merits.

But Mr X does not give up on contesting the inadmissibility of the possessory action. He appeals. The court of appeal of Nîmes surprises him: it declares his appeal inadmissible. Why? Because by participating without reservation in the expert assessment ordered by the judgment, Mr X implicitly accepted the judgment as a whole. In other words, he acquiesced (waived the right to contest) to the provision on the possessory action by executing the provision on the expert assessment.

Mr X appeals to the Court of Cassation. The Court of Cassation quashes the decision of the court of appeal. It holds that the court of appeal did not provide a legal basis for its decision: it did not explain why participating in the expert assessment (which concerns the boundary determination) implied an acquiescence to the inadmissibility of the possessory action. These are two distinct and independent provisions in terms of their subject matter. One cannot automatically be inferred from the other.

The Reasoning of the Court — Analysed

The Court of Cassation relies on the general principles of acquiescence to a judgment. Acquiescence (Article 408 of the Code of Civil Procedure) is the act of accepting a court decision, which extinguishes the right to appeal it. But such acquiescence must be certain and unequivocal. In this case, the court of appeal had inferred an implied acquiescence from the mere fact of participating in the expert assessment. However, for the Court of Cassation, this inference is not automatic.

The High Court reminds that each provision of a judgment may be independent. Here, the possessory action and the boundary determination action are two distinct claims: the first aims to protect possession, the second to fix boundaries. The judgment treats them separately. The fact of executing the expert assessment measure (for the boundary determination) does not imply acceptance of the inadmissibility of the possessory action. For acquiescence to be valid, the party must have manifested a clear intention to accept the contested provision.

In short, the court of appeal should have examined whether, by participating in the expert assessment, Mr X intended to waive the right to contest the inadmissibility. It did not do so. The Court of Cassation therefore quashes the decision for lack of legal basis. However, note: this decision does not prohibit that acquiescence may be implied. But it must be certain and result from acts that cannot be interpreted otherwise. What few people know is that participating in an expert assessment ordered by the judge is often a legal obligation; one cannot refuse without risking sanctions. Therefore, inferring acquiescence from it would be particularly unfair.

undefined, I have encountered cases where owners in Vauvert lost their right of appeal because they signed a report of expert assessment without reservation. This 1987 decision is therefore still relevant and protective.

What This Changes for You — Practically

This decision has important practical implications for owners, tenants, and real estate professionals. Here is what to remember:

• For the landlord owner: If a judgment orders an expert assessment (for example, on the condition of the premises) and at the same time rejects another of your claims (such as damages), do not fear participating in the expert assessment. You do not lose your right of appeal on the rejection of your damages, provided you do not clearly manifest your agreement on that point.
• For the tenant: If you are in dispute with your landlord and the court orders an investigatory measure (expert assessment) while rejecting your claim for a reduction in rent, you can participate in the expert assessment without losing the possibility of appealing the reduction in rent.
• For the purchaser: In the context of a property sale, if a judgment orders an expert assessment on latent defects but declares your warranty action inadmissible due to limitation, do not deprive yourself of appealing by thinking that the expert assessment binds you.
• For the co-owner: If the court orders an expert assessment on common parts but rejects your challenge to a general meeting, participating in the expert assessment does not amount to acceptance of the general meeting.

Example with figures: in Vauvert, an owner saw his appeal declared inadmissible for having participated in an expert assessment after a judgment. He had to go to the Court of Cassation to restore his rights, which cost him several thousand euros. With a good strategy, he could have made written reservations from the start.

In practice, if you are in this situation, you should always manifest your disagreement in writing. For example, send a letter to the court or to the expert stating that your participation does not amount to acquiescence to the other provisions of the judgment.

Four Tips to Avoid This Type of Dispute

• Never participate in an enforcement measure without making written reservations: Before participating in an expert assessment or executing a decision, send an email or a registered letter to the expert and the opposing party stating that your participation does not mean you accept the judgment as a whole.
• Consult a lawyer before executing a decision: As soon as a judgment is rendered, seek advice to know whether you can execute certain parts without risking losing your right of appeal on others.
• Clearly separate your claims in your statement of claim: When bringing an action, formulate distinct and independent claims. Thus, if the court rejects one, the others remain autonomous. This will facilitate the distinction on appeal.
• Check the appeal deadlines: The time limit for appeal is generally one month (Article 538 of the Code of Civil Procedure). Do not let it pass on the pretext that you are participating in an expert assessment. File an appeal within the deadlines, even if you may later discontinue it.

Further Reading: Related Case Law and Developments

This 1987 decision is part of a consistent line of case law from the Court of Cassation on implied acquiescence. For example, in a decision of 13 March 2013 (No. 12-14.789), the Court reminded that voluntary enforcement of a judgment only amounts to acquiescence if it is done without reservation and with full knowledge of the facts. Similarly, a decision of 9 July 2015 (No. 14-18.456) held that payment of a sum due under a judgment does not entail acquiescence to the provision setting that sum if the debtor otherwise contests the principle of the debt.

The current trend of the courts is to protect litigants against waivers too easily inferred. Judges now require a positive and unequivocal act to characterise acquiescence. This means that mere participation in an expert assessment, mediation, or any investigatory measure is not sufficient, by itself, to extinguish the right of appeal.

For the future, this case law should be confirmed. Legal professionals therefore advise always drafting written reservations and never executing a decision without having consulted a lawyer.

In Practice: What to Do

Checklist: What to Do If a Judgment Orders an Expert Assessment but Rejects One of Your Claims

1. Consult a lawyer immediately after the judgment to assess your chances of appeal.
2. File an appeal within the one-month deadline if you contest the rejected provision. Do not delay.
3. Participate in the expert assessment (it is often mandatory), but send a written statement to the expert and the opposing party stating that your participation does not amount to acquiescence to the other provisions.
4. Keep a copy of your reservations and the proof of receipt.
5. Monitor the progress of the appeal in coordination with your lawyer. You can always discontinue the appeal if the expert assessment gives you satisfaction.

Quick FAQ:

• Can I refuse to participate in an expert assessment? No, it is a legal obligation. But you can make reservations.
• What if I have already participated without reservation? Consult a lawyer to know if you can still appeal. There may be arguments to avoid acquiescence.
• How much does an appeal cost? Fees vary, but expect between €1,500 and €5,000 in lawyer's fees, plus procedural costs.
• What is the time limit for appeal? One month from the notification of the judgment (Article 538 CPC).

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