Interim Injunction for Works: The Judge Cannot Impose Works Not Requested

Imagine: you own a flat in Villeneuve-d'Ascq that you have rented out. The tenant leaves leaving damage: a water leak has ruined the parquet, the walls are stained. You call in an expert who estimates the repairs at €5,000. You sue your tenant before the court to obtain damages (a sum of money). But the judge, instead of awarding you that sum, orders the tenant to do the work himself. Problem: you don't trust him, and you wanted the money to choose your own tradesman. What to do?

This is exactly the question the Court of Cassation decided on 18 March 2010 (No. 09-13.376). And the answer is clear: a judge cannot impose a solution that no one has asked for. When seized with a claim for damages, he must rule on that point, not order works in kind. A decision that protects your freedom of choice.

In this article, we explain the facts, the judges' reasoning, and above all what it changes for you, whether you are an owner, tenant or property professional in Roubaix or elsewhere.

The Facts: A Story Like Many Others

The case begins in Bordeaux (the decision mentions the city, but the scope is national). An owner, let's call him Mr. Dupont, entrusts a builder, Mr. Martin, with the renovation of a building. Defects appear: cracks, leaks, poorly fitted joinery. Mr. Dupont brings an interim application before the judge for an expert report. The expert reports: the remedial works cost €746.33. But Mr. Dupont does not want Mr. Martin to carry them out; he has lost trust. He therefore asks the judge to order Mr. Martin to pay him this sum as damages (pecuniary compensation for the loss).

The court of first instance (the tribunal de grande instance of Bordeaux, now the tribunal judiciaire) rules in his favour: it orders Mr. Martin to pay €746.33. But Mr. Martin appeals. The Bordeaux Court of Appeal reverses this decision: it orders Mr. Martin to carry out the works himself, under a penalty payment (financial penalty if he fails to do so). For the Court of Appeal, this is a more effective solution: the owner gets the works done, not just money. But Mr. Dupont does not want these works done by Mr. Martin. He appeals to the Court of Cassation.

The twist: Mr. Dupont never asked for the works in kind. He always claimed money. The Court of Appeal therefore ruled ultra petita (beyond what was requested), which the law prohibits. The Court of Cassation must decide: can a judge impose a remedy in kind (works) when the claimant wants money?

The Court's Reasoning — Explained

The Court of Cassation, in its judgment of 18 March 2010, quashes the Court of Appeal's decision. It relies on Article 4 of the Code of Civil Procedure, which provides: 'The subject matter of the dispute is determined by the respective claims of the parties.' In other words, the judge cannot decide on a subject matter that the parties have not set. Here, Mr. Dupont claimed damages; the Court of Appeal ordered works in kind. That violates this fundamental principle.

Why is this principle so important? Because civil proceedings are a confrontation of positions. Each party sets out what it wants: the claimant states his claim, the defendant his defence. The judge is an arbitrator, not a free decision-maker. While he can interpret claims, he cannot replace them with another solution. This guarantees respect for each person's right to choose how their loss is remedied. Imagine you want an apology, and the judge imposes compensation: that would be absurd.

Fundamentally, the decision also rests on the principle of freedom of contract: you can choose who does your work. Here, imposing Mr. Martin forced a broken relationship of trust. Moreover, under general tort law (Article 1240 of the Civil Code, formerly 1382), reparation may be in kind or by equivalent (money). The choice belongs to the victim, not the judge. The Court of Appeal therefore exceeded its powers.

This decision is not a reversal: it confirms consistent case law. Already in 2005, the Court of Cassation had ruled that a judge cannot grant more than what is claimed (Civ. 2e, 8 June 2005). Here, it clarifies that he cannot grant something else either. A lesson in humility for judges: they must stay within the limits of the dispute.

What This Changes for You — Practically

If you are a landlord (as in Roubaix where many rent out older houses), this decision protects you. You have a tenant who caused damage? You can claim damages to do the work yourself, with the tradesman of your choice. The judge cannot impose on the tenant to repair himself. Example: a water leak rotted the floor. The expert estimates €3,000. You claim that sum. The court cannot order the tenant to lay a new floor. You keep control.

If you are a tenant, beware: if you are at fault, the landlord can claim damages from you. But you can also offer to do the work yourself to save money. Caution: if the landlord refuses and claims money, the judge cannot impose the works on you. You will have to pay. Conversely, if you are the claimant (e.g., an owner wanting works from a defaulting builder), you must formulate your claim correctly: either works or money. Not both alternately.

For co-owners, same thing: if the owners' association claims a sum for works, the judge cannot order the co-owner to do them himself. This avoids botched solutions.

In practice, if you are in this situation, you must draft your statement of claim carefully. Ask for what you really want, because the judge will not give you anything else. And if you are a defendant, check carefully what the claimant is asking: the judge cannot go beyond that.

Four Tips to Avoid This Type of Dispute

• Formulate your claim precisely: in your statement of claim or application, indicate clearly whether you want damages (sum of money) or works in kind. No vague formula like 'compensation for loss' that leaves the judge uncertain. Example: 'order Mr. X to pay the sum of €5,000 as damages for the repair of the parquet.'
• Keep all quotes and invoices: to quantify your loss, provide tradesmen's quotes. This justifies the amount. If you claim works, attach a precise description. A judge will struggle to order works without knowing exactly what to do.
• Do not accept works by the other party if trust is broken: you have the right to refuse. If the other party offers to do the works, you can say no and maintain your claim for money. The judge must rule in your favour if your claim is well-founded.
• Use a solicitor to draft your documents: a mistake in wording can cost you dearly. A solicitor specialised in property law will know the right terms. In Villeneuve-d'Ascq as in Roubaix, do not hesitate to consult.

Further Reading: Related Case Law and Developments

The Court of Cassation has reaffirmed this principle several times. For example, in a judgment of 12 May 2010 (No. 09-13.376, another), it censured a Court of Appeal that had awarded compensation for disturbance of enjoyment when the claimant had claimed works. The judge must stay within the limits of the claims.

A recent trend: since 2016, with the reform of civil procedure, the parties can set the subject matter of the dispute in written submissions. The judge is even more bound by these writings. So, if you write 'I claim €10,000', the judge cannot give you €8,000 in works; he must either give you €10,000 or less, but not something else.

For the future, expect courts to become increasingly strict. Current case law is consistent: the adversarial principle (the parties are masters of the dispute) is reinforced. Good news for litigants who want to keep control.

In Practice: What to Do

FAQ: Questions You May Have

1. Can I claim damages AND, in the alternative, works?
Yes, you can formulate a primary claim (damages) and a subsidiary claim (works) if the first is rejected. But the judge cannot grant both, nor choose works if you have not formulated that option.

2. What if the judge orders works I did not ask for?
You can appeal or apply to the Court of Cassation. But better to prevent: at the hearing, remind the judge that you only claim damages. If judgment is given, you will have grounds to challenge it.

3. Time limits: how long after the disputed works?
The limitation period is 5 years (Article 2224 of the Civil Code) from the manifestation of the damage. For a departing tenant, you have 5 years to sue them. But act quickly to avoid evidence difficulties.

4. What are the costs of proceedings?
Allow €2,000 to €5,000 in solicitor's fees for an interim application, plus expert fees (€800 to €2,000). But mediation may be cheaper and faster. In Roubaix, there are mediation centres.

5. Can I defend myself?
Before the tribunal judiciaire, a solicitor is mandatory for claims over €10,000. Below that, you can appear alone, but it is risky: a wrong wording can cost you the case. Better to at least consult a solicitor to draft the statement of claim.

Do you find yourself 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 →