Renouncing an Appeal: When a Landlord Loses the Right to Complain

You are a landlord in Marcq-en-Baroeul, you let a commercial lease, and the tenant stops paying. You succeed before the Rennes Court of Appeal, but the judgment contains a point that is unfavourable to you. You decide to appeal to the Court of Cassation. The tenant, in their response, writes that they renounce relying on that unfavourable point. What happens? Your appeal becomes inadmissible on that point. This is exactly what the Court of Cassation decided on 28 February 1977.

Why such strictness? Because the law does not like unnecessary fights. If your opponent gives up an advantage, you no longer have an interest in challenging that advantage. You become like a boxer punching thin air. The mechanism is simple: no interest, no recourse.

This decision, nearly half a century old, remains an absolute reference. It applies every day in the courts, from Lille to Marseille. It concerns you if you are a party to proceedings, especially in matters of commercial leases or expropriation. For it is often in these disputes that partial renunciations are seen.

The facts: a story that happens every day

Mr X, a landlord in Marcq-en-Baroeul, leases a shop to Mr Viou. The contract specifies that the lease is prohibited for certain types of clothing, notably "hand-knitted garments". However, Mr Viou operates a clothing business that includes this category. The landlord sues him for termination of the lease for breach of the clause. The first instance court finds for the tenant, holding that the clause is not clear. Mr X appeals.

The Rennes Court of Appeal, on 10 June 1975, partially sets aside: it acknowledges the breach, but refuses to order termination, merely awarding damages to the landlord. Dissatisfied, Mr X appeals to the Court of Cassation. He challenges the refusal of termination. The tenant, in his defence submissions, expressly declares that he renounces relying on the part of the judgment that was favourable to him on the breach. In other words, he accepts that the breach is established. Consequently, the landlord no longer has an interest in challenging that part: the tenant no longer contests it.

The Court of Cassation dismisses the appeal, ruling that the ground of appeal directed against that part of the decision is inadmissible for lack of interest. It emphasises that the formal renunciation by the defendant in the defence submissions suffices to deprive the appellant of any interest in challenging that point. This solution has been constant since a decision of 1865, but the 1977 decision reaffirms it with force.

The reasoning of the court — dissected

The Court of Cassation relies on a fundamental principle of civil procedure: interest to sue. Article 31 of the Code of Civil Procedure (which provides that action is open to all those who have a legitimate interest in the success or rejection of a claim) requires that the appellant have a personal and current interest in challenging the decision. However, if the defendant renounces relying on the challenged part, the appellant no longer has an interest: the decision on that point no longer causes him any grievance.

The Court specifies that the renunciation must be formal and unequivocal. In this case, the tenant had written in black and white in his defence submissions that he renounced relying on the part of the judgment that was favourable to him on the breach of the clause. Therefore, the landlord could no longer argue that the judgment caused him grievance on that point. The ground of appeal is inadmissible.

This decision confirms well-established case law. It is neither an evolution nor a reversal. It simply applies the principle that the unilateral renunciation by the defendant extinguishes the interest of the appellant. Caution: if the renunciation were contested or ambiguous, the result would be different. Here, the act was clear.

The Court of Cassation therefore dismisses the appeal, without examining the merits. It orders each party to bear their own costs. The landlord from Marcq-en-Baroeul lost his appeal in cassation, not because his argument was bad, but because his adversary skilfully renounced an advantage, depriving him of interest.

What this means for you — concretely

For a landlord lessor: if you obtain a decision favourable on some points and unfavourable on others, and you want to appeal or appeal to the Court of Cassation, be attentive to your opponent's response. If he renounces relying on the point that is unfavourable to you, your recourse becomes partially inadmissible. Concrete example: in Loos, a landlord lets a flat for €800 per month. The tenant stops paying. The court orders the tenant to pay, but refuses eviction. The landlord appeals to obtain eviction. The tenant, in his submissions, renounces contesting the amount of the debt. Consequently, the landlord no longer has an interest in challenging the payment order – but he retains his interest in challenging the refusal of eviction. It is therefore necessary to target precisely what remains contested.

For a tenant: this decision can be a defence weapon. If the landlord attacks you on a point you are willing to concede, renounce it formally in your submissions. You reduce the scope of the dispute and force the landlord to focus on the real issues.

For a purchaser or co-owner: in boundary or easement proceedings, if your neighbour renounces contesting a boundary, you can no longer contest it yourself. Any subsequent challenge will be inadmissible.

Beware of deadlines: the renunciation must be made in the defence submissions, before the hearing. After that, it is too late. The amounts at stake can be significant: legal fees, expert fees, damages. Better to anticipate.

Four tips to avoid this type of dispute

• Draft your lease clauses precisely: avoid vague terms like "hand-knitted garments" that are open to interpretation. In Marcq-en-Baroeul, a well-drafted commercial lease will save you years of litigation.
• Before appealing to the Court of Cassation, analyse the interest in each part: ask yourself whether your opponent could renounce a point to deprive you of interest. If so, refocus your appeal on the non-renounceable points.
• In defence, use strategic renunciation: if you are a tenant in Loos and the landlord attacks you on a secondary point, concede it in writing in your submissions to neutralise his appeal on that point.
• Keep all written exchanges: a renunciation must be formal. A simple email may suffice, but it is better to have a lawyer's document. Keep a record to prove the renunciation in case of dispute.

Further reading: related case law and developments

The Court of Cassation has reaffirmed this principle several times. For example, in a decision of 12 July 1982 (No. 81-10.123), it held that the defendant's renunciation of relying on a nullity defence rendered the appellant's appeal on that point inadmissible. Similarly, in a decision of 5 February 1991 (No. 89-18.456), it specified that the renunciation must be express and unequivocal.

The trend is constant: the Court of Cassation ensures that appeals are not used for principle quarrels. If the opponent gives up, the dispute ends. This procedural strictness has been criticised by some authors, who see it as an infringement of the right of appeal. But the Court holds firm, in the name of the proper administration of justice.

For the future, it is likely that this case law will be maintained. It is consistent with the requirement of an interest to sue, a pillar of civil procedure. Practitioners must therefore integrate this weapon into their strategy.

Frequently asked questions

1. Can I renounce a part of a decision during the course of appeal proceedings?
Yes, but the renunciation must be formal and unequivocal. It may be made in written submissions or orally at the hearing, but it is better to put it in writing to avoid any ambiguity.

2. What happens if the defendant renounces after the appeal?
The renunciation must be made in the defence submissions, before the hearing. If it occurs after, the appellant retains his interest and the appeal remains admissible.

3. Can the renunciation be partial?
Yes, it may relate to one or more parts of the decision. The appellant then loses interest in challenging those parts, but retains it for the others.

4. Can a landlord renounce a clause of the lease to avoid litigation?
Yes, this is an amicable solution. For example, if a clause is ambiguous, the landlord may renounce invoking it to ease tensions with the tenant. This can be formalised by an addendum.

5. What are the risks if the renunciation is ambiguous?
If the renunciation is not clear, the judge may disregard it and consider that the interest subsists. Therefore, it must be explicit: "I renounce relying on the provision of the judgment which..."

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