Oblique Action in Cassation: When the Creditor Cannot Act in the Debtor's Place

Imagine: you are a landlord in Marseille, you rent out a flat on Rue de la République, and your tenant stops paying. You obtain a judgment, but the tenant appeals. Then the tenant lodges an appeal in cassation. Suddenly, the tenant abandons it… and you, as creditor, would like to take over to protect your interests. The question arises: can you use the oblique action (the right to act in place of your debtor) to lodge an appeal in cassation yourself?

This decision of the Court of Cassation of 21 September 2022 answers: no, unless you prove that your debtor has been negligent and that this failure compromises your rights. A crucial clarification that concerns all creditors, whether banks, suppliers or individuals.

In this case, a Crédit Agricole bank was attempting to use the oblique action to lodge an appeal in cassation in place of a debtor SCI (property investment company). The Court of Cassation dismissed its claim, as the bank failed to demonstrate that the manager of the SCI had neglected its rights. Analysis.

The facts: a story that happens every day

Mr Dupont, manager of an SCI based in Aubagne, had taken out a loan from Crédit Agricole to finance a building. But the repayments stop, the bank obtains a judgment, the SCI appeals… and loses. It then has the possibility to lodge an appeal in cassation, but does not do so. The deadline for lodging an appeal runs, and the bank, worried, decides to act itself: it sues the SCI to obtain authorisation to exercise the oblique action, i.e. to lodge an appeal in cassation in place of the SCI.

The bank argues that the manager of the SCI is inactive, that there is a conflict between the shareholders as to who is the manager, and that this failure compromises its rights as creditor. It invokes the articles of association of the SCI which would limit the manager's powers, but claims that these limitations cannot be raised against it (are unenforceable against it) because it was unaware of the internal conflict.

The Tribunal de Grande Instance of Marseille, and then the Court of Appeal of Aix-en-Provence, dismiss the bank's claim. The bank then lodges an appeal in cassation. The Court of Cassation, in a judgment of 21 September 2022, dismisses its appeal. It considers that the bank did not establish that the debtor's (the SCI) failure to exercise its right to lodge an appeal in cassation compromised its rights. In other words, the creditor who wishes to use the oblique action must prove the prejudice caused by the debtor's inaction.

The reasoning of the court — analysed

The Court of Cassation relies on Article 1341-1 of the Civil Code (arising from the Ordinance of 10 February 2016) which governs the oblique action. This article provides that the creditor may exercise the rights and actions of its debtor, except those that are exclusively personal. But this action is subject to two conditions: the debtor must neglect its rights, and this neglect must compromise the creditor's rights.

In this case, the bank did not demonstrate that the absence of an appeal in cassation by the SCI caused it prejudice. Indeed, an appeal in cassation is an extraordinary remedy which is not suspensive (it does not suspend enforcement of the judgment). The bank could therefore pursue recovery of its debt despite the absence of an appeal. Moreover, the SCI had already been condemned on appeal, and the bank had an enforceable title (a judgment that can be enforced).

The Court also specifies that the creditor relying on the oblique action must assert and establish that the debtor's failure compromises its rights. However, the bank merely claimed that the manager was inactive, without demonstrating how this inactivity actually prejudiced it. The judges therefore considered that the condition was not satisfied.

This decision confirms consistent case law: the oblique action is not an automatic right for the creditor; it must prove actual and certain prejudice. It also reminds that the appeal in cassation is a personal right of the debtor, and the creditor can only substitute itself if the debtor's inaction causes it irreparable harm.

What this means for you — concretely

For creditors (banks, suppliers, individuals): if your debtor does not exercise a remedy, you cannot automatically do so in its place. You must prove that its inaction causes you prejudice. For example, if the judgment is not final and the debtor could obtain a more favourable decision in cassation, you must demonstrate that this absence of appeal prevents you from recovering your debt. In practice, if you are a landlord in Marseille whose tenant has appealed an eviction order, and the tenant abandons the appeal, you have no interest in lodging an appeal in cassation yourself in its place. It is better to seek interim enforcement of the judgment.

For debtors (SCIs, individuals): this decision protects you against abusive interference by your creditors. A creditor cannot substitute itself for you to exercise your rights, unless it demonstrates that your failure harms it. If you are the manager of an SCI in Aubagne, you can sleep easy: your creditor cannot force you to lodge an appeal in cassation if you consider it unnecessary.

Numerical example: imagine a loan of €150,000 granted to an SCI in Aubagne, with monthly repayments of €1,200. The SCI stops paying, the bank obtains a judgment. The SCI appeals, but the appeal is dismissed. The SCI has 2 months to lodge an appeal in cassation. It does not do so. The bank wants to act in its place. If the bank cannot prove that the absence of an appeal compromises its rights (for example, if the SCI has already sold its assets and is insolvent), the oblique action will be dismissed. The bank will then have to be satisfied with enforcement of the appeal judgment.

Four tips to avoid this type of dispute

• For creditors: document the debtor's failure. If you suspect that your debtor is not exercising its rights, gather written evidence: registered letters, formal notices, bailiff's reports. Show that you invited the debtor to act and that it refused or ignored your requests.
• For debtors: exercise your remedies within the time limits. If you have an interest in lodging an appeal in cassation, do so within two months of service of the appeal judgment. In case of internal conflict (as in the SCI), appoint an ad hoc agent to represent the company.
• For both parties: anticipate contractual clauses. In a loan agreement, include a clause authorising the creditor to exercise the debtor's remedies in case of default. This will facilitate proof of the debtor's consent.
• Consult a specialist lawyer. The oblique action is a complex procedure. A lawyer in Marseille or Aubagne can assess your chances and advise you on the evidence to provide. Do not attempt to do it alone.

Further reading: related case law and developments

This decision is part of a consistent line of case law. Already, in a judgment of 13 September 2017 (no. 16-19.901), the Court of Cassation had held that the creditor can only exercise the oblique action to lodge an appeal in cassation if it shows a present and actual interest. More recently, in a judgment of 10 March 2021 (no. 19-22.701), it specified that the debtor's failure must be established, not merely alleged.

The trend is therefore towards protecting the debtor against interference by creditors. The Court of Cassation reminds that the oblique action is an exception, which must not become a means of pressure. In future, we can expect judges to be increasingly strict on the condition of prejudice. Creditors will have to provide concrete evidence: for example, an expert report showing that the debtor's property is deteriorating due to lack of maintenance, or a threat of prescription of the debt.

Frequently asked questions

What is the oblique action?
The oblique action allows a creditor to exercise the rights of its debtor, when the debtor neglects to exercise them itself and this neglect compromises the creditor's rights. Example: a tenant who does not claim compensation for water damage from its insurance; the landlord can act in its place.

Can I use the oblique action to lodge an appeal in cassation in place of my debtor?
Yes, but only if you prove that the debtor has been negligent and that this negligence causes you prejudice. Simple inaction is not enough; you must demonstrate concrete prejudice, such as the loss of a chance to recover your debt.

What are the time limits for acting by oblique action?
The creditor must act within the limitation period of the action it exercises. For an appeal in cassation, the time limit is two months from service of the appeal judgment. After this time limit, the oblique action is no longer possible.

What should I do if my debtor is a company in internal conflict?
Request the appointment of a provisional administrator or an ad hoc agent by the commercial court. This person can represent the company and exercise the necessary remedies. In Marseille, the commercial court has jurisdiction for this type of request.

Does this decision apply to all types of debts?
Yes, the oblique action is governed by the Civil Code and applies to all debts, whether contractual (loan, rent) or tortious (damages). But certain rights are excluded, such as actions relating to personal status (divorce, filiation).

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