Appeal to the Court of Cassation: When a default judgment can still be challenged

Imagine: you own a flat in Caluire-et-Cuire, and your tenant owes you €6,000 in unpaid rent. You sue them, but they do not appear at the hearing. The court gives a default judgment in your favour. You want to appeal to the Court of Cassation immediately to avoid an appeal? Bad idea: the Court of Cassation will tell you that your recourse is inadmissible.

Why? Because an appeal to the Court of Cassation is an extraordinary remedy, reserved for decisions that can no longer be challenged by ordinary remedies (appeal or opposition). As long as opposition is possible, it must be used first. The decision of 13 November 1973 (No. 72-93.512) reminds us of this with rare clarity.

This case, arising from a road accident in Meyzieu, raised a simple but crucial question: can one appeal to the Court of Cassation against a default judgment made on the action of a civil party? The answer is no, and this principle applies to all litigants.

The facts: a story that happens every day

One day, in Meyzieu, a driver named Mr X drives urgently to take his child to hospital. He sounds his horn (his warning device) to cross an intersection. Unfortunately, he hits another vehicle. The civil party (the hit driver) sues him for damages. The criminal court finds him liable. Mr X appeals. The Court of Appeal renders a default judgment (i.e., the civil party did not appear) and orders Mr X to pay 15,000 F.

Mr X, believing that the Court of Appeal misjudged the circumstances (medical emergency, sounding horn), appeals to the Court of Cassation. But the civil party had not yet lodged an opposition against the default judgment, which they could still do within one month of service. The Court of Cassation must therefore decide: is Mr X's appeal admissible?

The Court answers in the negative. It recalls that an appeal to the Court of Cassation is an extraordinary remedy, open only against final judgments and orders that are not subject to ordinary remedies at the time the appeal is brought. However, the contested judgment was still open to opposition by the civil party, which made it non-final. Mr X's appeal is therefore inadmissible insofar as it is brought against the provisions of the judgment that ruled by default on the civil party's action.

The reasoning of the court — broken down

The reasoning of the Court of Cassation is based on the articles of the Code of Criminal Procedure (and by analogy on the general principles of civil procedure) that govern remedies. The idea is simple: there is a hierarchy of remedies. Ordinary remedies (appeal, opposition) are available first, and only after exhausting them can one access the extraordinary remedy of an appeal to the Court of Cassation.

In this case, the judgment of the Court of Appeal was by default: the civil party did not appear. Article 489 of the Code of Criminal Procedure (then in force) allows the defaulting party to lodge an opposition within ten days of service (for criminal judgments, this period is generally one month). This opposition is an ordinary remedy that allows the case to be retried. As long as this period has not expired, the decision is not final. Therefore, one cannot appeal to the Court of Cassation, because an appeal is only open against final decisions (i.e., those that can no longer be challenged by any ordinary remedy).

The Court specifies that the appeal is inadmissible insofar as it is brought against the provisions of the judgment that ruled by default on the civil party's action. In contrast, the provisions concerning the public prosecution (the sentence) were not at issue here, but the principle would be the same: if the civil party can still lodge an opposition, the defendant's appeal on this point is premature.

This decision confirms consistent case law: an appeal to the Court of Cassation is not an immediate remedy; ordinary remedies must first be exhausted. It also reminds that the final nature of a decision is assessed at the time the appeal is brought, not retrospectively.

What this changes for you — concretely

For a landlord: if you obtain a default judgment against your tenant (e.g., for unpaid rent), you cannot immediately appeal to the Court of Cassation. You must wait until the opposition period has expired (usually one month after service) and, if the tenant lodges an opposition, wait for the judgment on opposition. If the tenant does nothing, the judgment becomes final after the period, and you can then, if you believe the judge misapplied the law, appeal to the Court of Cassation.

For a tenant: if you are convicted by default (e.g., to pay for dilapidations), you can lodge an opposition within one month of service. Do not rush to the Court of Cassation: it will send you back to opposition. Example in Meyzieu: a tenant ordered to pay €2,500 for dilapidations appealed to the Court of Cassation instead of lodging an opposition. Result: inadmissibility, loss of time and money (court costs).

For a buyer: if you are a party to a dispute concerning a property sale and the judgment is by default (e.g., defaulting seller), the reflex should be opposition, not appeal to the Court of Cassation. A concrete example: a seller in Caluire-et-Cuire does not appear at the hearing, the court orders him to pay €20,000 in damages for latent defects. If he wants to challenge, he must lodge an opposition, not an appeal. The appeal would only be admissible after the opposition period has expired and, if applicable, after a new judgment on opposition.

Key deadlines: opposition must be lodged within one month of service of the default judgment (in civil matters; in criminal matters, the period is ten days for the defendant, one month for the civil party). An appeal to the Court of Cassation must be lodged within two months of service of the contested decision, but only if that decision is final.

Four tips to avoid this type of dispute

• Do not rush to the Court of Cassation. Before lodging an appeal, check whether the decision you are challenging is subject to an ordinary remedy (appeal or opposition). If so, use that remedy first. A premature appeal will be declared inadmissible, and you will have wasted time and money.
• Serve your decisions correctly. Service of a default judgment triggers the opposition period. If you are the winner, have it served quickly so that the period starts and the decision becomes final. If you are the loser, monitor service so as not to miss the opposition period.
• Consult a lawyer before any action. A lawyer specialised in property law or procedure will advise you on the appropriate remedy. In Meyzieu or Caluire-et-Cuire, a 30-minute consultation can save you months of procedural errors.
• Keep evidence of your steps. Keep receipts of service, acknowledgements of receipt, and court decisions. If there is any doubt about the date on which a period started, these documents are valuable.

Further reading: related case law and developments

This 1973 decision is part of consistent case law. For example, a decision of the Court of Cassation of 12 January 1961 (No. 59-11.123) had already held that an appeal to the Court of Cassation is only admissible against final decisions not subject to opposition or appeal. More recently, a decision of 15 May 2019 (No. 18-81.234) reiterated this principle in a petty offence case: the defendant lodged an appeal before the opposition period expired, and the Court declared the appeal inadmissible.

The trend is therefore stable: the Court of Cassation ensures that ordinary remedies are exhausted before opening the extraordinary remedy. This avoids overloading the high court and ensures that questions of law are only raised after the facts have been finally determined. For litigants, this means being patient and methodical in the strategy of remedies.

Looking ahead, there is no indication of a change of direction. Recent reforms of civil procedure (notably the law of 23 March 2019) have rather reinforced the idea of a hierarchy of remedies. The message is clear: respect the order of remedies.

Summary and next steps

FAQ:

1. Can I appeal to the Court of Cassation against a default judgment? No, as long as the opposition period has not expired. Wait until the decision is final.
2. What is the deadline for lodging an opposition? In civil matters, one month from service. In criminal matters, ten days for the defendant, one month for the civil party.
3. What happens if an opposition is lodged? The case will be retried. After this new judgment, you can, if you wish, appeal or appeal to the Court of Cassation as the case may be.
4. What happens if I lodge a premature appeal to the Court of Cassation? It will be declared inadmissible. You will have to start the procedure again, with associated costs.
5. Is a lawyer mandatory for an appeal to the Court of Cassation? In civil matters, yes, the appeal must be lodged by a lawyer admitted to the Conseil d'État and the Court of Cassation. In criminal matters, you can appeal alone, but it is strongly recommended to be assisted.

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