Interim Injunction and Prescription: When Proceedings Interrupt the Time Limit

Imagine: you are the owner of a commercial property in Bayeux, leased to a restaurateur. For years, the tenant has accumulated rent arrears. You eventually issue an interim injunction (assignation en référé) to have the arrears recorded and obtain an expert appraisal. The order is made, the expert works, but time passes. Suddenly, you realise that your debt dates back more than five years. Panic: is it prescribed? The decision of the Court of Cassation of 19 December 2001 answers this crucial question.

In law, extinctive prescription extinguishes a debt if the creditor does not act within a certain time limit. However, a court claim interrupts this time limit. But the interruption is not eternal. In other words, how long does this interruption last? The answer given by the High Court is precise: the interruption lasts only for the duration of the interim proceedings, until the order appointing an expert. After that, the prescription resumes its course. This point is often misunderstood by litigants.

What you need to remember: once the expert is appointed, the prescription clock restarts. If you wait too long to bring substantive proceedings, you risk losing your right. This decision, rendered in a dispute between a landlord and a commercial tenant, has practical implications for all owners and tenants. Let's analyse it together.

The facts: a story like any other

Mr X, owner of a building in Bayeux, grants a commercial lease to the company La Terrasse de l'École Militaire. In 1990, disagreements arise over the amount of rent and service charges. The landlord issues an interim injunction against his tenant to obtain an expert appraisal of the rental values. On 15 November 1990, the interim judge (juge des référés) makes an order appointing three experts to assess the eviction and occupation compensation. The expert appraisal is carried out.

Meanwhile, the tenant continues to occupy the premises without paying the full amounts claimed. On 14 February 1992, the company La Terrasse de l'École Militaire sues the owner for payment of the eviction compensation. But the owner pleads prescription: the unpaid rent dates back more than five years. The tenant retorts that the interim injunction of 1990 interrupted the prescription.

The Tribunal de grande instance of Caen, then the Cour d'appel of Caen, are seised. The central question: did the interim injunction interrupt the prescription and, if so, for how long? The owner argues that the interruption ceased with the interim order. The tenant argues that the interruption continues until the expert submits his report. The Court of Cassation rules in favour of the owner: the interruption lasts only for the duration of the interim proceedings, until the order appointing the expert.

The reasoning of the court — analysed

The Court of Cassation relies on Article 2244 of the Civil Code (old version), which provides that a court summons interrupts prescription. But it specifies that this interruption is only temporary: it ends with the proceedings that caused it. In this case, the interim proceedings ended with the order of 15 November 1990. From that date, a new prescription period began to run. Since the tenant brought substantive proceedings on 14 February 1992, more than five years after the facts (the arrears dated from 1985-1986), his debt was prescribed.

In short, the interruption of prescription by an interim injunction only benefits for the duration of those urgent proceedings. Once the order is made, the clock resets to zero. If you do not seise the substantive judge within the remaining time limit, you lose your right. This reasoning is logical: interim proceedings are provisional, not substantive. They cannot interrupt prescription indefinitely.

Note, however: the decision does not say that an interim injunction does not interrupt prescription. It does interrupt it, but only during the proceedings. This point is often confused with the interruptive effect of a substantive action, which lasts until the final judgment. The Court of Cassation thus clearly distinguishes between the two.

What this changes for you — practically

If you are a landlord: you must be vigilant when you bring interim proceedings to obtain an expert appraisal or provisional measures. Do not consider that the prescription is suspended indefinitely. Once the expert is appointed, you should act quickly in substantive proceedings, otherwise your claims may become prescribed. For example, in Vire, a landlord issued an interim injunction in 2020 for unpaid rent from 2015. The order is made in 2021. If he does not bring substantive proceedings until 2026, the 2015 rent will be prescribed because the 5-year period will have run from the order.

If you are a tenant: this decision may be unfavourable to you if you have claims against your landlord (e.g., overpayments). But it may also protect you if the landlord delays in acting. If you are a buyer: beware of prescription periods for hidden defects or warranty claims. An interim injunction for an expert appraisal does not give you a blank cheque.

undefined, I have encountered cases where landlords had brought interim proceedings for expert appraisals and then waited years before bringing substantive proceedings, believing the prescription was interrupted. Result: their claims were prescribed. This decision is therefore a warning: act quickly after the interim order.

Four tips to avoid this type of dispute

• Tip 1: As soon as the interim order is made, note the date of the end of interruption and calculate the remaining prescription period. If you are close to the deadline, bring substantive proceedings without delay.
• Tip 2: Prefer a direct substantive claim rather than an interim injunction if your goal is to obtain payment of a sum. The interim injunction is useful for expert appraisals or urgent measures, but does not definitively stop the prescription.
• Tip 3: Keep all dates: date of the interim injunction, date of the order, dates of expert acts. Rigorous monitoring avoids unpleasant surprises.
• Tip 4: When in doubt, consult a specialised lawyer before initiating proceedings. Early advice can save you time and money.

Further analysis: related case law and developments

This decision follows a consistent line of the Court of Cassation. Already, a judgment of 8 July 1992 (No. 90-21.028) held that an interim injunction interrupts prescription until the order. More recently, the Court reiterated this principle in a judgment of 13 September 2017 (No. 16-19.422): 'the interruption of prescription resulting from a court claim does not extend to a separate proceeding.' In other words, each proceeding produces its own interruptive effects.

What few people know is that the law of 17 June 2008 reduced the prescription period from 30 to 5 years in civil matters. Combined with this case law, it makes swift action after an interim injunction even more crucial. The courts are strict: the interruption is limited in time and scope.

Frequently asked questions

Does an interim injunction interrupt prescription? Yes, but only for the duration of the interim proceedings, until the order. After that, the time limit starts running again.

What if my landlord issued an interim injunction 3 years ago and has not brought substantive proceedings? Check the date of the order. If more than 5 years have passed since then, claims prior to the injunction are likely prescribed. You can plead prescription.

Can I interrupt the prescription again by issuing another interim injunction? Yes, each interim injunction produces a new interruptive effect, but only for its own proceedings. It does not retroactively extend the interruption.

What is the time limit to act after an interim order? You must bring substantive proceedings before the expiry of the prescription period that has started running again. For example, if the debt dated from 2018 and the order was in 2020, you have until 2025 to bring substantive proceedings (unless other causes of interruption).

Does this rule apply to all types of prescription? Yes, whether it is a five-year prescription (rent, salaries) or a thirty-year prescription (real property actions). But beware of special prescriptions (e.g., 2 years for actions between merchants).

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →