The 3rd Civil Chamber of the Court of Cassation rendered a landmark decision on May 22, 2025 (n°23-18.768) that definitively clarifies the distinction between a procedural defect and a substantive defect regarding erroneous party designations.
🔍 Facts : A homeowners’ association is summoned, but the designation is imprecise.
A homeowner summons the “syndicat des copropriétaires” (homeowners’ association) when in reality there is a main association and a secondary association. The main association raises a plea of nullity for the summons, arguing the designation of a “non-existent entity.”
📚 Legal framework:
- Article 117 of the French Code of Civil Procedure (CPC): a limited list of substantive irregularities (lack of legal capacity to sue, lack of authority, lack of representation).
- Articles 112 and following of the CPC: nullities for procedural defects (text + injury).
- Article 648 of the CPC: mandatory mentions for bailiff’s acts.
⚖️ Prior jurisprudential divergence
Until now, jurisprudence has fluctuated, and judges were divided on how to qualify such an error:
- Was it a substantive defect (lack of legal capacity or existence of the party) that automatically led to nullity?
- Or a procedural defect (irregularity in the procedural act) requiring proof of injury?
✨ The landmark principle
The High Court sets forth a landmark principle that clarifies the situation:
“The imprecision affecting the designation of a homeowners’ association summoned to annul a general meeting, which does not call its existence into question, constitutes a procedural defect that is sanctioned by the nullity of the summons only if the opposing party, who raises the plea, proves the existence of an injury.”
In other words, a designation error no longer automatically leads to nullity if the legal existence of the party is not called into question.
The determining criterion: The legal existence of the party
✅ PROCEDURAL DEFECT (Vice de forme): The error does not call into question the legal existence of the party.
- The sanction: Nullity if, and only if, the opposing party demonstrates an injury.
- Example: An imprecise designation of the association, as in the ruling. The association exists, but the designation is incomplete.
🛑 SUBSTANTIVE DEFECT (Vice de fond): The error compromises the very existence of the party or its capacity to sue.
- The sanction: Nullity as a matter of law, with no need to prove an injury.
- Example: Summoning an association without legal personality or a deceased person.
