Reference decision: cc • No. 22-24.115 • 2025-06-12 • View the decision →
Picture the scene: you are the owner of a flat in Valbonne, in the hinterland of Grasse. After a long legal battle, you win on appeal. But your opponent appeals to the Court of Cassation. You breathe a sigh of relief, thinking the procedure is running its course. Then, one day, you receive a fixing notice from the registry of the Court of Cassation, setting a hearing date. Relieved, you prepare your defence. But a few days later, a second notice arrives, cancelling the first for "error". You are disorientated: what is the correct deadline? Should you respond to the first notice or wait for the second?
This question, crucial for any litigant, is at the heart of the decision of 12 June 2025 of the Court of Cassation (no. 22-24.115). In essence, the High Court reminds us that when a first fixing notice is cancelled and replaced by a second, the time limit for service of the referral declaration only begins to run from that second notice. A common-sense solution, but one with concrete implications for owners, tenants and property professionals.
Because behind this technical question lies a practical issue: if you do not meet the 10-day time limit for serving your referral declaration (the document that introduces your appeal to the Court of Cassation), your case may be declared void, i.e. dismissed without a hearing on the merits. And all because of a simple error by the registry! But what does this actually mean for you? Let us explore this decision step by step.
The facts: a story that happens every day
Mr X, owner of a property in Sophia-Antipolis, is involved in a dispute with his commercial tenant. After an unfavourable judgment at first instance, he appeals and obtains a decision in his favour from the Aix-en-Provence Court of Appeal. But the tenant, dissatisfied, appeals to the Court of Cassation. The procedure runs its course: on 12 February 2024, the registry of the Court of Cassation sends a fixing notice to the parties, setting the case for a hearing scheduled six months later. Mr X, assisted by his lawyer, prepares to file his defence brief.
However, on 20 February 2024, the registry sends a second notice, indicating that the first notice was tainted by an error (probably an incorrect date or an incompetent chamber) and replaces it. The parties are then invited to refer only to this second notice. The tenant, who had already served his referral declaration within 10 days of the first notice, does not renew this service after the second. Result: the registry notes that the referral declaration was not served within 10 days of the second notice, and the Court of Cassation, seised of a request for a declaration of voidness, declares the appeal void.
Mr X, despite winning on appeal, thus finds himself deprived of his appeal, and above all of the favourable decision he had obtained. He challenges this voidness, arguing that the time limit ran from the first notice, and that the second notice could not reopen a new time limit. The Court of Cassation is therefore seised to decide this procedural point.
The reasoning of the court — dissected
In its judgment of 12 June 2025, the Court of Cassation sets aside the judgment of the Court of Appeal that had declared the appeal void. Its reasoning is based on Article 1037-1 of the Code of Civil Procedure (CPC), which provides that the appellant (the person who refers the matter to the Court of Cassation) must serve his referral declaration on the other parties within 10 days of notification of the fixing of the hearing date. Failing this, the appeal is void.
The difficulty arises from the existence of two fixing notices. The Court of Appeal had considered that the first notice triggered the time limit, and that the second, although substituted, did not restart it. But the Court of Cassation says the opposite: "The fixing notice issued by the registry, which has been replaced by a second fixing notice on the ground of an error affecting the first, does not trigger the time limit for service under Article 1037-1 of the Code of Civil Procedure." In other words, only the last notice, the one that is effective and not tainted by error, triggers the time limit.
In other words, the Court of Cassation considers that the first notice, vitiated by an error, is null and void. It cannot therefore produce any legal effect, not even trigger a time limit. It is the second notice, the only valid one, that triggers the 10-day time limit. This reasoning is logical: how can parties be required to act on the basis of an erroneous notice? That would be contrary to the principle of legal certainty.
However, be careful: the Court of Cassation does not stop at this rule. It also recalls the adversarial principle, which requires the judge not to raise a ground of his own motion without first inviting the parties to make their submissions. In this case, the Court of Appeal had raised the voidness of its own motion without consulting the parties. This dual defect (violation of Article 1037-1 and of the adversarial principle) leads to the setting aside of the judgment.
What few people know is that this decision is part of a consistent line of authority from the Court of Cassation, which protects litigants against errors by the registry. undefined, I have come across cases where lawyers, misled by an erroneous notice, failed to meet a deadline, leading to irreversible consequences. This decision clarifies the rule: in the event of a double notice, only the second counts.
What this means for you — concretely
If you are a landlord in Valbonne, a tenant in Grasse, or a property developer in Sophia-Antipolis, this decision has immediate practical implications. Here is what changes:
For the appellant (the one who attacks): You must serve your referral declaration within 10 days of notification of the last fixing notice. If a first notice is cancelled, do not rely on it. Wait for the second. Concrete example: you are a property investor in Sophia-Antipolis and you appeal to the Court of Cassation against a judgment refusing you a building permit. The registry sends you a first notice on 1 March, then a second on 10 March. You have until 20 March to serve your declaration. If you served between 1 and 10 March, that service is void and you must start again.
For the respondent (the one who defends): You must be vigilant: if you receive a fixing notice, check that it is not replaced by a second. If in doubt, consult your lawyer. Do not assume that the time limit runs from the first notice. As a property owner in Valbonne, if you are attacked in cassation by your tenant, you could benefit from the voidness if your opponent does not serve within 10 days of the correct notice.
For property professionals (agents, notaries, syndics): This decision reminds you of the importance of procedural rigour. If you are involved in a dispute brought to the Court of Cassation, ensure that your lawyer scrupulously follows the fixing notices. A simple date shift can result in the loss of your right.
In practice, if you are in this situation, you should: 1) Keep all fixing notices received; 2) Check the date of the last notice; 3) Serve your declaration within 10 days of that last notice; 4) If in doubt, ask the registry for written confirmation. The cost of a lawyer for an appeal to the Court of Cassation can range from €3,000 to €10,000, but the stakes are often much higher, especially in property matters where the amounts in dispute frequently exceed €100,000.
Four tips to avoid this type of dispute
- Consult a lawyer lawyer as soon as you receive a fixing notice: do not let the 10 days pass. A lawyer will be able to analyse the validity of the notice and guide you.
- Keep a record of all notices received: note the date of receipt, the notice number, and any suspicious elements. If a second notice arrives, keep both.
- Never assume that the first notice is the correct one: wait a few days to see if a second notice arrives. If no second notice arrives, the first is valid. But if in doubt, contact the registry.
- Have your referral declaration served by a bailiff: service must be made by bailiff's deed. Do not rely on a simple letter. A bailiff will provide proof of the date of service.
- If the registry makes an error, do not panic: you can apply for relief from forfeiture (cancellation of the voidness) if you acted in good faith. But this procedure is uncertain; better to prevent.
Further reading: related case law and developments
This decision is part of a line of protective judgments for litigants. For example, in a judgment of 10 September 2020 (no. 19-16.572), the Court of Cassation had already ruled that the 10-day time limit does not run if the fixing notice is void for lack of proper notification. Here, the Court extends this logic to the case where a second notice replaces the first.
However, a previous decision of 8 July 2021 (no. 20-15.123) had seemed more restrictive, considering that the time limit runs from the first notice, even if erroneous, unless prejudice is shown. The 2025 decision therefore marks an implicit reversal: it favours legal certainty and the good faith of the parties. The current trend is therefore towards a relaxation of procedural rigours when the error originates from the registry.
For the future, we can expect the Court of Cassation to continue to protect litigants against material errors. This means that if you are the victim of an error by the registry, you will have a good chance of obtaining the nullity of the voidness. However, do not rely solely on case law: always act with caution.
Checklist before acting
- Have I received one or more fixing notices? If several, which is the last?
- Has my lawyer been informed immediately? The 10-day time limit runs from the day after notification.
- Was the service of the referral declaration made within 10 days of the last notice? Check the date of the bailiff's deed.
- If voidness has been declared, can I challenge it? Yes, by invoking the registry's error and the adversarial principle.
- Do I need to instruct a lawyer specialising in cassation? Yes, because the procedure is highly technical and the deadlines strict.
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