Nullity of the contract in French civil law

In Droit, is struck of nullity a act invalid, either that it was not formed with the formalism imposed by the Loi, or that it misses an essential component. A null act is destroyed and its consequences, in the majority of the cases, are removed retroactively, as if it had never been formed. Nullity sanctions the conditions of formation of a contract while the resolution sanctions the inexecution or the bad execution of the obligation.

In French Right, the law defines the cases of nullity and the judge cannot pronounce it apart from these cases: “not of nullity without text”. Any contract which does not respect one of its conditions of formation can then be cancelled by a judge.

Legal character of nullities

In theory, nullities are virtual, i.e. the judge can freely deduce from a rule the existence of a nullity. There exists an exception to this principle when the law provides expressly that there will be no nullity when the text does not envisage it (ex: marriage contract).

There exist two types of nullity:

absolute nullity

When the disability of the act reaches an general interest, the act is struck of an “absolute” nullity. Any interested person can then call upon this nullity; the judge can pronounce it office. The time of Prescription of absolute nullity is the time of common right: 30 years for a civil act and 10 years for a commercial act. It is called upon:

- when there is no assent

- when the obligation does not have an object or the object is illicit or unspecified

- when the cause of the contract does not exist or is illicit (Article of the Civil code)

- when the formal requirements are not observed for the solemn contracts

relative nullity

If only an private interest is concerned, on the other hand, nullity will be “relative”. Only the contracting one reached can call upon it, within 5 year as from the day of the contract signature in theory. However for the defects of the assent, this time runs only as from the discovery of the defect or then when violence to be ceased. It is called upon:

- In the event of incapacity of exercise, by the representative of the incapacity or the former incompetent

- In the event of defect with the assent by the contractor whom the law wanted to protect

The minor will be able to act starting from his majority.

The implementation of nullities

The people who can call upon nullity

In French Right, the intervention of a judge is necessary so that an act is null. As regards relative nullity, the legal action can be brought only by the people whom the violated rule intended to protect. As regards absolute nullity this time, any person having an interest can ask for the nullity of the act. They are thus the parts to the contract or their heirs, the creditors of these parts, etc the thirds on the other hand will not be able to act as nullity. The Public ministry can ask for the nullity of a contrary contract the Law and order and the moralities.

Means of calling upon nullity

Two situations meet. The parts can act by “way of action” while requiring of the court of competent jurisdiction to pronounce the cancellation of an act. It can also, when the object of an action is the fulfilment of a contract, act by “way of exception” by calling upon the nullity of this contract.

In the event of relative nullity, the action by way of action is prescribed at the end of five years whereas the action by way of exception remains always possible: “the action is temporary, the exception is perpetual”.

A Contrat cannot be cancelled, including by way of exception, when it was carried out or that it knew a beginning of execution.

The confirmation

It is about a legal document by which a person who can ask for the nullity of an act, gives up prevailing herself about it in all full knowledge of the facts.

; The field of the confirmation Only the acts of relative nullity can be the subject of a confirmation. It is necessary to distinguish the “confirmation” from the “regularization” of the “repair”:

in confirmation, one gives up being prevailed of a nullity.
in regularization, one validates an act initially no one while bringing the element to him which it misses.
in repair, one recreates an new agreement.

; Conditions of this confirmation They are three:

the confirmation must emanate from the person who can prevail herself of nullity.
it can take place only after the contract signature.
the act of confirmation supposes that the person who confirms knew the defect affecting the act, must have had the effective and unambiguous will to give up the action and has the Legal capacity.

The confirmation can be express or tacit (to result here from behaviors testifying to an unambiguous will to give up the action for annulment).

; Effects of the confirmation The effectiveness of the contract confirmed between the parts is the first effect. The confirmator cannot then ask for nullity of it any more. This confirmation is worth only between the parts and do not impose themselves on the thirds.

Consequences of nullity

The contract is destroyed retroactively both for the past the future. It existed forever. So the parts must restore the services from which they profited: all is given in the state where they were before the execution of the contract. But there exist cases where it is impossible to retrogress. The contract will thus be cancelled only for the future. (of the services of work cannot be cancelled

Extent of nullity

The exception of the contract is cancelled but more and more one tries to save certain pieces of the contract. If the struck clause of nullity is determining contract, then this one will be completely éradiqué, while if this clause is not it, one cancels only this one. The judge operates a teleological approach of nullity. He questions himself according to the objectives by the rule violated in order to determine if nullity must be partial or integral.

Restitutions

It is advisable to make so that the contract existed forever between the parts, thus the restitution is done in theory, in kind. If this restitution in kind is impossible, one restores an equivalent, i.e. a monetary compensation.

The exception of unworthiness makes effect in the play of the restitutions. It is about a rule under the terms of which when a contract is null to be against the moralities, the action for annulment is admissible, but the play of the restitutions is paralyzed because of turpitude of the applicant. This rule relates to only the contractual relations, does not make obstacle with the action for annulment but paralyzes only the restitutions. It is concerned only in the cases of immorality and illiceity.

Once the restitutions carried out, it may be that a damage still remains. One can then ask for repair of damage on the base of the article of the Civil code.

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