Lapse of Proceedings: When a Letter to the Expert Saves Your Case

Imagine: you are the owner of a commercial property in Wittenheim. For months, you have been waiting for an expert appraisal to revise the rent. The expert is slow, the proceedings drag on. One year, two years, three years pass. And suddenly, your opponent claims lapse of proceedings: the case would be extinguished for lack of diligence. Yet your lawyer did write to the expert to chase them up. But the other party is unaware of it. What can you do?

This question was decided by the Court of Cassation in 1975: a letter addressed to the expert, even without informing the opponent, can be sufficient to prevent lapse of proceedings. This decision reassures all those who fear losing their rights through mere apparent inaction. But beware: the letter must clearly manifest the intention to continue the proceedings. Explanations.

In this article, we break down the facts, the judges' reasoning, and the practical consequences for owners, tenants, and property professionals in Cernay, Mulhouse, and elsewhere. Follow the guide.

The Facts: A Story Like Those That Happen Every Day

In 1965, the Y siblings, owners of a building in Rennes, grant a commercial lease of a unit to Mr X. The rent is set at 10,000 francs per year. In 1968, Mr X requests a rent revision, claiming it is undervalued. The parties cannot agree, and the court orders an expert appraisal to determine the market rent.

The expert is appointed. He begins his work, but quickly the case stagnates. Months pass. In January 1971, nearly three years after the expert's appointment, he has still not filed his report. The Y siblings, the owners, consider the proceedings abandoned. They apply to the judge to have the lapse of proceedings declared (i.e., the extinction of the case for lack of steps for three years).

But Mr X resists. He produces letters that his avoué (the former name for a postulant lawyer) sent to the expert in 1970 and 1971, asking him to file his report and manifesting the intention to continue the proceedings. The Y siblings reply that they were never informed of these letters, and that lapse should apply. The Rennes Court of Appeal rules against them: it rejects the lapse application. The Y siblings appeal to the Court of Cassation.

The Court's Reasoning — Analysed

The Court of Cassation, in its judgment of 15 October 1975, dismisses the appeal. It confirms that the avoué's correspondence with the expert constitutes a procedural step that interrupts the lapse (prevents the three-year period from running). The legal basis? Article 397 of the former Code of Civil Procedure (now Articles 386 et seq. of the Code of Civil Procedure), which provides that proceedings become time-barred if no step is taken for three years. But the Court specifies that any manifestation of intention to continue the proceedings, even if addressed solely to the expert, is sufficient to interrupt the period.

Why this solution? Because the expert is a court-appointed auxiliary, mandated by the court. Contacting him to chase him up is a step in the expert appraisal procedure, which forms an integral part of the proceedings. It does not matter that the opponent was not informed at the time: the essential point is that the party manifested its will not to abandon the case. The judges emphasise that the letters put the expert on notice to file his report, thereby demonstrating procedural activity.

This decision is a confirmation of earlier case law, which already interpreted broadly the notion of an interruptive step. It is neither a reversal nor a major development, but it provides valuable legal certainty: parties can act directly with the experts without risking their rights if they neglect to inform the other side. In practice, this avoids costly and time-consuming additional formalities.

What This Changes for You — Practically

If you are a landlord or a commercial tenant, this decision concerns you directly. Imagine you are in Cernay, in the midst of a rent revision dispute. The court-appointed expert is slow to deliver his report. You can, through your lawyer, write to him to chase him up. This simple letter, even if the other party does not receive a copy, interrupts the lapse period. Concretely, you prevent your case from being declared extinguished after three years of inactivity.

Take a concrete example: in Mulhouse, a tenant requests a revision of his rent of €12,000 per year. The expert appraisal is ordered in 2020. In 2023, the expert has still not filed his report. If the tenant has taken no action, the landlord can request lapse. But if the tenant proves that his lawyer wrote to the expert in 2021 and 2022 to request the report, lapse is avoided. The potential gain for the tenant? Several thousand euros in rent savings if the revision results in a reduction.

For property professionals (agents, managers), this case law reminds of the importance of monitoring ongoing expert appraisals. A simple follow-up email can save a case. If you are a buyer or seller in a dispute related to a condition precedent (e.g., obtaining a loan, diagnostics), the same principle applies: any act manifesting your intention to continue interrupts the lapse.

Four Tips to Avoid This Type of Dispute

• Tip 1: Keep all correspondence with the expert. Retain copies of letters, emails, delivery receipts. In case of challenge, you can prove that you acted. Better to have a well-organised paper or digital file.
• Tip 2: Ask your lawyer to send you a report of each step. You will know exactly when he contacted the expert. This avoids unpleasant surprises if the case drags on.
• Tip 3: Do not wait until the last minute to act. The lapse period is three years. Chase the expert every six months or a year, even if there is no news. A simple message may suffice.
• Tip 4: Inform your opponent of your follow-ups, as a courtesy and to avoid disputes. The Court of Cassation does not require it, but it is good practice. An email copied to the other party or their lawyer can dispel any misunderstanding.

Further Details: Related Case Law and Developments

This 1975 decision is part of a consistent line of the Court of Cassation. As early as 1963, the First Civil Chamber had held that correspondence from an avoué to an expert could interrupt lapse (Civ. 1re, 20 November 1963). More recently, the Second Civil Chamber confirmed in 2005 that a simple registered letter sent to the expert, even without a reply, is sufficient (Civ. 2e, 20 January 2005, No. 02-19.480).

The trend is therefore favourable to litigants: judges interpret the notion of a step broadly. However, caution: case law requires that the letter clearly manifest the intention to continue. A simple request for information on progress may be deemed insufficient. It must put the expert on notice to file his report or request an extension of time.

For the future, there is no indication of a reversal. Legal certainty is strengthened, but beware of total inactivity: if no step is taken either with the expert or with the court, lapse will apply. The best approach is to combine follow-ups with the expert and requests for hearings with the court.

Checklist Before Acting

FAQ: Questions Everyone Asks

• Q: Can I write to the expert myself, or do I need a lawyer?
  A: The 1975 decision concerned an avoué (postulant lawyer). Today, you can write yourself, but it is preferable that your lawyer does so to avoid any challenge to the validity of the step.
• Q: What if the expert does not reply?
  A: Send a registered letter with acknowledgement of receipt. If no reply within two months, apply to the judge responsible for supervising expert appraisals to request his replacement.
• Q: Does the lapse period run during the expert appraisal?
  A: Yes, the period runs from the last procedural step. The expert appraisal itself does not interrupt the period; only the parties' steps do.
• Q: Can I interrupt lapse by paying a deposit to the expert?
  A: Yes, payment of a consignment or deposit is an interruptive step, as it manifests the will to continue the expert appraisal.
• Q: Can the other party challenge the validity of my letter?
  A: Yes, but the Court of Cassation considers that the trial judge has full discretion to assess whether the letter manifested the intention to continue. It is up to you to prove that it did.

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