Court of Cassation, 2th civ., September 12, 2024, No. 21-14.946, Published in the Bulletin
For several years, the courts have actively encouraged the parties to favor an amicable resolution of their disputes. The development of alternative dispute resolution (ADR) is now at the heart of judicial procedures at very varied stages.
Since October 1, 2023, recourse to an attempt to settle disputes amicably has been mandatory when the request is equal to or less than 5000 euros or when it relates to a neighborhood conflict or an abnormal neighborhood disorder. (art. 750-1 CPC)
Thus, many contracts provide for prior conciliation clauses before any legal action and the Court of Cassation has, on several occasions, had the opportunity to reiterate the need to strictly respect these clauses before taking legal action.
The judgment of September 12, 2024 is a new example and should be known to practitioners.
Indeed, in this case, the act of transfer of the business included a conciliation clause prior to any judicial instance for any dispute relating to the performance of the contract.
Although the applicants attempted conciliation before initiating an interim injunction procedure, which they were unsuccessful, they did not consider it useful to repeat this conciliation attempt before referring the matter to the trial judge.
The Court's cleaver was unquestionable: failing to comply with the prior conciliation clause, the applicants were inadmissible in their applications and could not rely on the one initiated before the interim proceedings since the requests were different. (CA Nîmes, 4th ch. com., March 10, 2021, no. 19/00500.).
The Court of Cassation approved the decision of the Nîmes Court of Appeal but, in this judgment, applied the clause more rigorously, considering that the reason for non-acceptance is justified solely because of the absence of implementation of this conciliation procedure prior to the trial on the merits. The difference or not in the claims between the two procedures does not appear to be a criterion to be used in order to avoid compliance with the prior conciliation clause.
The Court of Cassation takes advantage of its judgment to recall, in accordance with article 1134 paragraph 1 of the Civil Code, now article 1103, and article 122 of the Code of Civil Procedure that: “the clause in a contract establishing a conciliation procedure that is mandatory and prior to referral to the judge constitutes an injunction that is binding on the judge if the parties invoke it.”
As a reminder, the mixed chamber of the Court of Cassation had also had the opportunity to point out that the non-compliance with such a contractual provision”is not likely to be regularized by the implementation of the clause in the course of proceedings” (Cass., mixed chapter, Dec. 12, 2014, PBRI, no. 13-19.684)
What can we learn from this judgment?
- Strictly respect the conciliation clause provided for in a contract and be in a position to justify it;
- If the clause provides for an attempt at conciliation before any proceeding, proceed with it even if the requests are the same in both instances.
Our firm has extensive experience in the implementation of these preliminary conciliation procedures and can assist you effectively.
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