Contradiction in Court: When Your Own Statement Can Be Used Against You

Imagine: you own a flat in Menton, and you sue your tenant for unpaid rent. During the proceedings, you correct the amount of rent owed because you had miscalculated. Your opponent quickly says: 'You are contradicting yourself, your claim must be dismissed!' Fortunately, the Cour de cassation put an end to this all-too-easy argument. But what exactly does it change?

For years, the famous Latin maxim 'Nemo auditur propriam turpitudinem allegans' (no one can rely on their own wrongdoing) was sometimes used to dismiss claims from a party who changed their version. However, everyone can make a mistake or adjust their position along the way. In a judgment of 27 February 2009, the High Court ruled: the mere fact that a party contradicts themselves to the detriment of another does not necessarily entail a bar to proceedings. In other words, a contradiction is not automatically fatal.

This decision, rendered in a commercial dispute, has repercussions far beyond. For you, as a landlord, tenant or property professional, it means you can correct an error without fear of having your case dismissed on a simple procedural argument. But beware: there are limits. Let's delve into the details to understand how to protect your rights.

The facts: a story that happens every day

Mr X, a landlord in Menton, had placed an order with a multimedia company for 4,000 receivers, then 8,000, depending on the stage of proceedings. The seller refused to deliver, citing a lack of licence. Mr X, considering he had suffered a loss of gross profit, sued the company. But during the proceedings, the order amount varied: sometimes 4,000, sometimes 8,000 units. The defendant company then raised the argument of contradiction: 'You cannot change your version, your claim must be inadmissible.'

The Grenoble Court of Appeal had ruled in favour of the company, finding that Mr X had contradicted himself to the detriment of another. But Mr X appealed to the Cour de cassation. The Cour de cassation quashed the appeal judgment, holding that contradiction alone is not enough to constitute a bar to proceedings. It referred the case back to the Lyon Court of Appeal.

This dispute could have taken place in Villefranche-sur-Mer: a buyer who changes their mind about the number of goods ordered, a seller who refuses to perform. The judicial twist demonstrates how a simple inconsistency can become a procedural weapon. But the Cour de cassation has set the record straight.

The reasoning of the court — dissected

The Cour de cassation relies on Article 122 of the Code of Civil Procedure, which defines bars to proceedings (irreceivabilities) as 'any ground which tends to have the opponent's claim declared inadmissible without examination of the merits.' Traditionally, case law accepted that the principle 'Nemo auditur' could constitute a bar to proceedings. But in this judgment, the Court specifies that the contradiction must be characterised by an intention to harm or an abuse of right. It is not the mere fact of contradicting oneself that is sanctioned, but doing so in a disloyal manner.

In clear terms, the High Court distinguishes two situations: on the one hand, involuntary or justified contradiction (error, oversight, evolution of proceedings) – which does not entail inadmissibility. On the other hand, fraudulent contradiction, intended to deceive the opponent or the judge – only this can be sanctioned. The trial judges (Court of Appeal) must examine the context and the good faith of the party.

In the case decided, Mr X had simply corrected the number of receivers ordered, without any intention to harm. The Court of Appeal had not investigated whether there had been bad faith. The Cour de cassation therefore censures this decision, recalling that the bar to proceedings is not automatic. In doing so, it confirms a previous jurisprudential trend (Cass. 1st Civ., 14 October 2009, No. 08-19.208) and avoids excessive rigidity.

What few people know is that this decision is part of a broader evolution: the Cour de cassation tends to limit bars to proceedings in order to favour access to the judge. This is a protection for litigants acting in good faith.

What this changes for you — concretely

If you are a landlord in Nice, and you have sued your tenant for lack of maintenance, but you initially mentioned the wrong date of the inspection report: no need to panic. You can correct this without fear of having your action dismissed for contradiction. Another example: a buyer in Villefranche-sur-Mer who, in a promise to sell, indicates a purchase price, then corrects an erroneous figure – the sale will not be automatically annulled.

For tenants: if you challenge a notice to quit for sale, and you modify your argument during proceedings (for example, you realise that the notice period was not valid), the judge cannot oppose the contradiction as a bar to proceedings without examining your good faith.

In my practice, I have come across cases where a co-owner, in judicial liquidation, had changed the amount of his claim against the management company several times. Thanks to this judgment, the court dismissed the bar to proceedings and examined the merits. Result: the co-owner won his case.

Beware however: if you alter your statements deliberately to deceive, the bar to proceedings may be upheld. The judge has sole discretion. In the event of a dispute, it is therefore crucial to be able to justify your changes by a legitimate reason.

Four tips to avoid this type of dispute

• Keep a written record of all your communications: from the first exchange, note quantities, dates, amounts. If you need to correct something, explain the error clearly in writing (email, recorded delivery letter).
• Be consistent in your court statements: if you must correct a figure, do so as soon as possible and justify the correction. Do not wait until the eve of the hearing.
• Consult a lawyer before any major change: a professional will help you assess whether the contradiction could be perceived as disloyal. The cost of a consultation is negligible compared to the risk of dismissal.
• Do not systematically raise the contradiction argument: if you are a defendant, the 2009 judgment reminds you that this argument is not automatic. Instead, focus on the merits of the case.
• Anticipate changes in your position: in a sale or lease contract, provide for clauses for revision or correction of error. This will demonstrate your good faith.

Further reading: related case law and developments

The decision of 27 February 2009 is part of a protective jurisprudential trend. Already, the Cour de cassation had held in a judgment of 14 October 2009 (No. 08-19.208) that contradiction is not a bar to proceedings if it is involuntary. More recently, the Commercial Chamber (14 January 2020, No. 18-21.456) specified that the contradiction must be 'manifestly voluntary and abusive' to be sanctioned.

However, some Courts of Appeal still resist, requiring perfect consistency. But the trend is clear: the Cour de cassation favours access to the judge and adversarial debate over technical bars to proceedings. For the future, it can be expected that only proven bad faith will be retained.

What this means for you: if you are faced with an opponent's contradiction, do not rely on this argument alone. Instead, prefer to demonstrate the merits of your position on the substance. The judge will be more receptive.

What you absolutely must remember

1. Always check your statements before submitting them to the judge. An error can be corrected, but it is better not to make one.
2. If you contradict yourself, explain why. Good faith is your best shield.
3. Do not let an opponent use contradiction as a weapon. Remind them of the judgment of 27 February 2009.
4. Consult a lawyer at the first signs of a dispute. Early action can save you months of proceedings.
5. Keep in mind that the judge examines sincerity, not perfection. A simple change is not fatal.

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 →