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A decision is liable to be quashed where it puts

Reference decision: cc • N° 94-12.888 • 1995-12-13 • View the decision →

This decision provides important insight into your property law. Here is what it changes for you.

The situation

A decision is liable to be quashed where it releases an insurance company from the proceedings on the basis of the clauses of an individual policy that a company had taken out with that insurance company, which the insurer had relied upon for the first time on appeal, whereas the company had argued in its written submissions, which were not answered, that that policy was not enforceable against it.

What the law says

This decision confirms the fundamental principles of property law.

Key points to remember

Strictly comply with the statutory time limits for appeals
Keep all your supporting documents (title deeds, deeds, correspondence)
Anticipate: preventive advice always costs less than litigation

For an analysis of your situation: 30-minute consultation at €45 with Maître Zakine.

📌 Does this apply to your situation? Maître Cécile Zakine, French real estate lawyer, practises throughout France.
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Cas d'usage pratiques

Landlord in Paris faces insurer's new appeal defence

A landlord in Paris owns a rental flat where a water leak from the upstairs neighbour caused €12,000 of damage. The neighbour's insurer covered the claim at first instance, but on appeal the insurer now argues a policy exclusion for water damage was never raised before. The landlord is appealing the amount awarded and now faces this new defence.

Application pratique:

The Court of Cassation ruled that an insurer cannot rely for the first time on appeal on policy clauses not raised earlier. You should object immediately to this new argument in writing, highlighting that it was not part of the first-instance proceedings. Cite the decision (Cass. cc, 13 December 1995, No. 94-12.888) and demand that the court disregard the new exclusion. Gather your first-instance submissions and the insurer's original defence to show the argument is new.

First-time buyer in Lyon discovers hidden defects

A first-time buyer in Lyon purchased a 1960s apartment for €210,000 and six months later discovered severe structural cracks. The seller's insurer denied liability at trial, but on appeal by the buyer for higher damages, the insurer raises for the first time a clause requiring the buyer to prove the seller knew of the defects. The buyer never saw this clause before.

Application pratique:

This decision confirms that a party cannot introduce a new policy-based defence on appeal if it was not argued at first instance. You should formally object in your appellate submissions, citing this case law, and ask the court to strike out the insurer's new argument. Keep all correspondence and the first-instance judgment to prove the insurer's original position. If the court fails to address your objection, you may have grounds for cassation.

Co-owner in Nice faces insurer's late exclusion claim

A co-owner in a Nice condominium is part of a syndicate suing the building contractor for €85,000 over faulty balcony repairs. At first instance, the contractor's insurer was held liable. On appeal, the insurer now invokes a 'defective workmanship' exclusion clause from the contractor's professional liability policy for the first time, aiming to escape payment.

Application pratique:

Under this case law, an insurer may not rely on a policy clause for the first time on appeal if it failed to raise it earlier. As a co-owner, you should urge the syndicate's lawyer to file a written objection arguing inadmissibility of this new ground, citing Cass. cc, 13 Dec. 1995, No. 94-12.888. Preserve the trial court's ruling and the insurer's first-instance defence to demonstrate the argument's novelty. The appeal court must address your objection or risk being quashed.

A decision is liable to be quashed where it puts

The situation

What the law says

Key points to remember

Informations juridiques

Source

Mots-clés

Cas d'usage pratiques

Landlord in Paris faces insurer's new appeal defence

First-time buyer in Lyon discovers hidden defects

Co-owner in Nice faces insurer's late exclusion claim

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Maître Zakine, Doctor of Law