Declaration of Seisin on Referral after Cassation: The Procedural Trap to Know

Imagine: you are the owner of a building in Mont-de-Marsan, and after years of proceedings, you finally obtain a favourable cassation. You rejoice, thinking that the court of appeal on referral will quickly decide in your favour. But lo and behold, a simple oversight of formality can undo all your efforts. How is this possible?

The question that every litigant asks after a cassation is simple: how to restart the case? The answer is in Article 1037-1 of the Code of Civil Procedure. This decision of the Court of Cassation of 4 March 2021 (No. 19-12.564) clarifies the rules of the game, and woe betide those who ignore them.

In essence, the declaration of seisin on referral after cassation must be served on the other parties within ten days of notification of the notice of fixture, on penalty of lapse. And only the president of the chamber or the designated judge can find this lapse, not the court of appeal. A technical detail? Yes, but one that can prove costly. Let us discover together the lessons of this decision.

The facts: a story like many others

Mr X, a landlord owner in Mont-de-Marsan, rents a commercial premises to company Y, based in Tarnos. The lease expires, and a disagreement arises over the amount of the renewal rent. Mr X sues company Y for determination of the new rent. The Tribunal de Grande Instance fixes a rent, but company Y appeals. The court of appeal renders a judgment that Mr X challenges in cassation.

The Court of Cassation quashes the judgment and refers the case to another court of appeal. Mr X, assisted by his lawyer, files a declaration of seisin with the court of referral. The registry notifies a notice of fixture, and Mr X serves this declaration on the other parties within ten days. But company Y considers that the service is late or irregular, and requests the lapse of the declaration.

The court of appeal on referral declares itself competent to hear the incident and pronounces the lapse. Mr X files an appeal in cassation, arguing that the court of appeal was not competent to rule on this incident. The Court of Cassation is then seised to decide this procedural question.

The reasoning of the court — dissected

The Court of Cassation relies on Article 1037-1 of the Code of Civil Procedure (the text that organises the procedure on referral after cassation). This article provides that the declaration of seisin must be served within ten days following notification of the notice of fixture, on pain of lapse. And above all, that this lapse is found by the president of the chamber or the judge designated by the first president, and not by the court of appeal itself.

In clear terms, the Court of Cassation recalls that the president of the chamber has exclusive competence to hear this incident, until he is divested (i.e., as long as he has not transmitted the file to the trial panel). In other words, if a party wishes to raise the lapse, it must do so by submissions specially addressed to the president, and not to the court of appeal.

Caution, however: the Court of Cassation specifies that the party who is able to raise this incident by taking such submissions is not admissible to criticise the court of appeal for not having raised the lapse of its own motion. Indeed, Article 50 of the Code of Civil Procedure allows the judge to raise certain nullities of his own motion, but this is not an obligation. If the party does not seise the president, it cannot later complain that the court of appeal did not do so.

In other words, the Court of Cassation validates the principle that non-compliance with service deadlines leads to lapse, but it decides the question of competence: only the president (or the designated judge) can find it, not the court of appeal. In the case, the court of appeal exceeded its powers by ruling itself on the lapse. The judgment is therefore censured.

What few people know is that this decision is a confirmation of previous case law, but it provides an important clarification on the moment of the president's divestment. It also clarifies that the opposing party cannot rely on the judge's initiative.

What this changes for you — concretely

If you are a landlord owner, like Mr X in Mont-de-Marsan, this decision reminds you that the procedure on referral after cassation is a path strewn with pitfalls. A simple delay in service can lead to the lapse of your declaration, and therefore the loss of your right to seise the court of referral. Imagine: you have won your cassation, but you lose the benefit of that victory because of a missed deadline.

If you are a tenant, you must be vigilant: if the landlord does not serve his declaration within the time limits, you can seise the president of the chamber to have the lapse found. But beware, you must do so by submissions specially addressed to the president, and not to the court of appeal. undefined, I have come across cases where lawyers have seised the court of appeal by mistake, and the incident was declared inadmissible.

For property professionals, developers or co-owners, this decision is a reminder of the importance of procedural formalities. Concrete example: in Tarnos, a co-ownership obtained a cassation against a developer. The syndic filed the declaration of seisin, but the lawyer omitted to serve within ten days. Result: lapse, and everything must be done again. Additional cost: several thousand euros in fees and costs.

In short, this decision forces you to be reactive and precise. If you are in this situation, you must imperatively note the date of notification of the notice of fixture, and have your declaration served within ten days. A tight schedule, but essential.

Four tips to avoid this type of dispute

• Scrupulously respect the 10-day deadline: as soon as you receive the notice of fixture, have the declaration of seisin served by a bailiff. Use a shared calendar or an alarm so you don't forget. Do not rely on your memory; the deadline is short.
• Address your submissions to the right person: if you want to challenge the regularity of the service or raise the lapse, draft submissions specially intended for the president of the chamber or the designated judge, not the court of appeal. Check the exact heading in the notice of fixture.
• Anticipate service difficulties: if the opposing party is hard to reach, do not wait until the last day. Have service done from the first day, and if necessary, request authorisation for service by way of a report of unsuccessful searches.
• Keep all evidence: keep a copy of the notice of fixture, the receipt of service, and any exchanges with the registry. In the event of a dispute, you will need to prove that you complied with the deadlines.

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Further reading: related case law and developments

This decision is part of a series of judgments of the Court of Cassation that clarify the rules of the procedure on referral. For example, in a judgment of 13 September 2019 (No. 18-16.789), the Court had already held that the president of the chamber was solely competent to find the lapse. The decision of 4 March 2021 confirms and clarifies this solution.

However, a judgment of 12 December 2018 (No. 17-28.456) had suggested that the court of appeal could also raise the lapse of its own motion. But the 2021 decision rejects this interpretation: only the path of special submissions to the president is open. The trend is therefore towards a tightening of avenues of appeal, in favour of a clear and predictable procedure.

What this means for the future: lawyers and parties must be extremely vigilant as to form. The judges will not give any leeway. If you omit to seise the president, you will lose your incident. Conversely, if you respect the rules, you can effectively paralyse a late declaration.

In practice: what to do

Here is a checklist for litigants after a cassation with referral:

1. Receive the notice of fixture: note the exact date of notification by the registry.
2. Serve the declaration of seisin: within 10 days, by bailiff, on all parties to the proceedings that gave rise to the cassation.
3. Keep proof of service: the original bailiff's deed or a certified copy.
4. If the opposing party challenges: address submissions to the president of the chamber (not the court) requesting rejection of the challenge.
5. If you are the opposing party and the service is late: seise the president by special submissions within a reasonable time to request the lapse.

In summary, this decision teaches you that compliance with deadlines and correct identification of the interlocutor are crucial. Do not neglect these purely technical aspects, as they can undo months of substantive proceedings.

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