Lapse of proceedings: the two-year period that extinguishes a pending dispute

A commercial dispute begun three years ago, an expert report filed, submissions exchanged, and then nothing: no hearing fixed, no avoué (former procedural representative), no chaser. The file sleeps on the court list, the opponent is content with that, and the creditor considers that the summons has secured its position. This is a misreading of the procedural timetable. After two years without any step, the proceedings lapse (péremption d'instance), the interrupting effect of the claim is retroactively wiped out, and the creditor may discover that its claim is time-barred. This analysis describes how the lapse period works, identifies the acts that interrupt or suspend it, sets out the procedural conditions for relying on it in defence, and measures exactly what the claimant loses when the limitation period for the action has expired in the meantime.

The mechanism: two years of inertia are enough (Articles 386 to 393 of the Code of Civil Procedure)

The rule fits in a single sentence.

Proceedings lapse where none of the parties takes any step for two years (Article 386 of the Code of Civil Procedure).

Three elements deserve to be isolated. First, lapse is an objective fact: it does not sanction a fault, it records inertia. The judge who records it exercises no discretion, Article 388 specifying that it takes effect by operation of law. Second, it operates without distinction: the text refers to none of the parties, so that a step taken by the defendant benefits the claimant and vice versa. A defendant who has an interest in lapse must therefore refrain from any act likely to advance the case, which requires strict procedural discipline over the whole period. Finally, lapse is not reserved for first instance: it applies on appeal, on opposition, and in summary proceedings.

The financial consequence is laid down by Article 393: the costs of the lapsed proceedings are borne by the party who commenced them. The claimant therefore bears the cost of proceedings that produced no enforceable title.

The notion of an interrupting step

Not every act interrupts the lapse period. Case law adopts a functional definition: a step is an act that shows the intention to pursue the proceedings and that is likely to move them towards their conclusion. The criterion is procedural usefulness, not apparent activity.

Without difficulty, the following fall into this category: service of submissions, communication of exhibits with the schedule, an application for a hearing date, a request for an investigative measure, an application to have the case restored to the list after removal, the joinder of a third party. Conversely, the courts regularly discount purely internal or unilateral acts: a letter from counsel to the client, a chaser from the court registry on the state of the file, a note that has not been communicated, an informal exchange between lawyers that has not been put before the court. The distinction is operational: only what has entered the adversarial debate, and can be shown to have done so, counts.

Two points of vigilance for a litigation portfolio. First, the burden of proving the step lies on the party opposing lapse. An act that was carried out but cannot be dated with certainty, or traced in the hearing file, is worth nothing. Second, the period starts again in full with each useful step: a new two-year period runs from the act. Interruption of lapse wipes out the time that has elapsed, it does not suspend it.

The procedural timetable: knowing when the period runs and when it stops

The most frequent error is to reason in terms of the total length of the proceedings rather than the intervals between acts. Managing a dispute requires identifying, at every moment, what the last interrupting act is and what deadline results from it.

Pre-trial management and the court timetable

Before the judicial court (tribunal judiciaire) in written procedure, where the pre-trial judge (juge de la mise en état) fixes a timetable for exchanges or a hearing date, the parties are no longer required to take steps spontaneously: the progress of the proceedings then depends on the court. It is accepted that, in this configuration, the lapse period cannot be held against the parties for the period covered by the fixing. The logic is the same in oral procedure before the commercial court (tribunal de commerce), where the parties are required to take steps only to the extent that the judge has set them.

This tolerance has a clear limit. It ceases as soon as the timetable is exhausted, the hearing has been adjourned without a date, or the case has been withdrawn from the active list. From that moment, the initiative returns to the parties, and the clock restarts. The periods of maximum risk are therefore identifiable: after an expert report is filed, after an adjournment sine die, after removal from the list, after the opening of collective insolvency proceedings, after an attempt at settlement that fails without any procedural act.

Removal from the list: the most underestimated measure

Removal from the list ordered on the basis of Article 381 of the Code of Civil Procedure sanctions the parties' failure to take steps. It entails suspension of the proceedings within the meaning of Article 377, but does not suspend the lapse period. Article 392 states that the period continues to run in the event of suspension of the proceedings, unless the suspension is limited in time or made subject to the occurrence of a specified event. Removal is neither: the case is restored only on proof that the steps whose absence caused it have been taken. The period therefore runs, and the only really useful step is the application to have the case restored to the list.

The situation is all the more of a trap because the decision to remove a case is a measure of judicial administration, notified by ordinary letter and not open to appeal. A change of the firm's address, a file passed between two colleagues, an organisation undergoing restructuring are enough for the notification not to reach the level where a decision is made. Two years later, the proceedings have lapsed without any alert having been triggered.

On appeal, Article 524 of the Code of Civil Procedure provides for a specific removal where the appellant does not show that the decision under appeal has been performed. The text specifies that the lapse period runs from notification of the removal decision and that it is interrupted by an act showing unequivocally the intention to perform. For a creditor with an enforceable judgment, this mechanism is a lever: a removed appellant who does not regularise sees, at the end of the two years, its appeal affected by lapse, which gives the judgment the force of res judicata under Article 390.

Interruption and suspension of the proceedings

Article 392 draws a distinction that must be handled rigorously. Interruption of the proceedings entails interruption of the lapse period: a new two-year period starts again in full. Suspension, on the other hand, neutralises the period only if it is limited in time or tied to a specified event, in which case a new period runs from the end date or the event.

The cases of interruption of proceedings are defined in Articles 369 et seq.: death of a party where the action is transmissible, cessation of the lawyer's functions where representation is mandatory, occurrence of an event affecting a party's capacity. The opening of collective insolvency proceedings follows a similar logic: Article L. 622-22 of the French Commercial Code interrupts pending proceedings seeking an order against the debtor to pay a sum of money, until the creditor has filed its claim, and the proceedings resume by operation of law once the court-appointed insolvency representative (mandataire judiciaire) has been joined.

This last point deserves the particular attention of institutional creditors. The interruption does not last indefinitely. A creditor that files its claim but neglects to join the insolvency representative, or that waits passively for the outcome of the collective proceedings without resuming the case, is exposed to lapse. The opening of court-supervised reorganisation (redressement judiciaire) is not a procedural sanctuary: it is an event that restarts a period, and that requires the creditor to carry out the resumption steps itself. The time limits, content and verification of liabilities are set out in our article on filing a claim in collective insolvency proceedings.

The same reasoning applies to judicial expert appraisal, which is frequent in construction disputes, off-plan sales (VEFA) and defective workmanship. Where the judge stays the proceedings pending the filing of the report, the suspension is tied to a specified event: a new lapse period runs from the filing. The period of latency that follows the filing of the report, during which the parties analyse the expert's conclusions, quantify their claims and explore a settlement, is statistically the most dangerous in the file. It is frequently measured in years. On the stages before and after the filing of the report, see our analysis of the conduct of a judicial property expert appraisal and of the challenge to the draft report.

Relying on lapse in defence: a narrow window

Lapse is a formidable argument, but its procedural regime is demanding. Article 388 provides that it must, on pain of inadmissibility, be requested or raised before any other argument. A party who submits on the merits, raises a plea of lack of jurisdiction or discusses admissibility before invoking lapse has lost it for good. The rule is applied mechanically: it tolerates neither mixed submissions nor formal reservations at the end of the pleadings.

Article 387 opens two routes. Lapse may be requested by any of the parties, by way of an interim application, once inertia is established. It may also be raised as a defence against the party who takes a step after the expiry of the period: this is the classic situation of the claimant who wakes up and serves submissions two and a half years after the last useful act. The defence must then be raised at the head of the responsive pleadings.

Before the judicial court, the application falls within the exclusive jurisdiction of the pre-trial judge, Article 789 reserving to that judge the applications that bring the proceedings to an end. Before the court of appeal, it is brought before the pre-trial judge of the appeal court (conseiller de la mise en état). An argument of lapse raised before the trial bench when the pre-trial judge could have been seised is bound to be inadmissible: the procedural error of routing costs the argument itself.

Two time limits finally frame the exercise. Lapse can no longer be requested after the opening of the hearing. And above all, it may be waived tacitly: a party who, knowing of the inertia that has accrued, takes a procedural step showing an intention to pursue the proceedings is deemed to have waived it. For a defendant, the only coherent strategy is therefore to examine the question of lapse before any reaction on the merits, as soon as a late act is received.

Since Decree No. 2017-892 of 6 May 2017, Article 388 also allows the judge to raise lapse of its own motion, after inviting the parties to submit their observations. This power changes the claimant's risk analysis: it can no longer rely on its opponent's silence.

What lapse extinguishes, and what it leaves in place

Article 389 draws the dividing line.

Lapse does not extinguish the action; it merely extinguishes the proceedings, without any of the acts of the lapsed proceedings ever being capable of being relied on or invoked.

The claimant therefore retains, in theory, the ability to issue fresh proceedings. But it starts again from zero. None of the acts of the lapsed proceedings can be relied on: neither the summons, nor the submissions, nor the admissions contained in the opponent's pleadings, nor the pre-trial orders. The question of the fate of the judicial expert report delivered in the lapsed proceedings is more nuanced: it is generally accepted that such a report may be put before the court in the new proceedings as an item of evidence open to adversarial discussion, without amounting to an enforceable procedural act. The choice is then economic as much as legal: taking up again a technical file that was examined several years earlier, with a discharged expert and defects that have evolved, frequently requires a new investigative measure and a new cycle of costs.

On appeal, the effect is more radical still. Article 390 provides that lapse gives the judgment the force of res judicata, even if it has not been notified. An appellant who lets the appeal lapse loses for good the ability to challenge the judgment: the avenue of appeal is exhausted, and the first-instance title becomes final. For a respondent creditor, this is a favourable outcome that should be secured by scrupulously refraining from any step during the period concerned.

The point of impact: the limitation period for the action wiped out by Article 2243 of the Civil Code

This is where lapse of proceedings ceases to be a procedural incident and becomes a dead loss.

Article 2241 of the Civil Code provides that a claim brought before the court interrupts the limitation period, and Article 2242 that this interruption takes effect until the proceedings come to an end. The creditor who has issued proceedings therefore legitimately considers that its claim is protected throughout the trial. Article 2243 reverses this protection:

The interruption is deemed not to have occurred if the claimant discontinues its claim or allows the proceedings to lapse, or if its claim is definitively dismissed.

The effect is retroactive. The summons is deemed never to have interrupted limitation. The period is therefore recalculated from its original starting point, as if no action had been brought. In commercial matters, Article L. 110-4 of the Commercial Code sets this period at five years, as does Article 2224 of the Civil Code in civil matters for personal and movable actions. Mechanically, a dispute begun three years after the triggering event and lapsed two and a half years later leaves the creditor facing a limitation period that expired on the very day lapse is recorded.

The chronology to be reconstructed is therefore twofold and must be kept in parallel: on the one hand the date of the last act interrupting lapse, on the other the date of expiry of the limitation period calculated without the interrupting effect of the summons. As long as the second has not been reached, lapse is only a cost and a delay. Once it has been passed, it is a definitive extinction of the right to bring the action.

The shock wave extends to security. Article 2246 of the Civil Code provides that a demand made on the principal debtor interrupts the limitation period against the guarantor. If the interruption arising from the claim against the principal debtor is wiped out by the application of Article 2243, it is also wiped out in its effects with regard to the guarantor. A creditor holding a guarantee, a mortgage or a pledge can thus lose simultaneously its principal action and the benefit of pursuing its guarantors, without any judgment ever having ruled on the merits.

A last clarification of scope: arbitral proceedings are not subject to this regime. The duration of the arbitral tribunal's mission is governed by the parties' agreement or, failing that, by the six-month period provided for in Article 1463 of the Code of Civil Procedure. The risk there is that of expiry of the arbitration period, not that of lapse under Article 386. The choice between arbitration and the State courts is covered separately in our article on the arbitration clause and arbitration in B2B and property contracts.

Managing the risk of lapse in a litigation portfolio

For a legal department, a bank or a fund following several dozen proceedings, lapse is not dealt with file by file but through governance. Three mechanisms deserve to be structured.

• A dated record of the last interrupting act for each file, with a deadline calculated at twenty-four months and intermediate alerts set well in advance, the regularising act having to be prepared and served before the deadline and not as it approaches.
• A double chronology for each file, stating both the lapse deadline and the limitation date recalculated without the interrupting effect, the only way of identifying the files where lapse would be irreversible.
• A systematic checkpoint at the tipping moments: filing of an expert report, removal from the list, adjournment without a date, opening of collective proceedings against the debtor, change of counsel, universal transfer of assets affecting a party.

On the defence side, the logic is symmetrical. As soon as an opposing file goes to sleep, the inertia should be time-stamped, the evidence of the absence of any step kept, and any act likely to advance the proceedings avoided. The discipline of abstention is here a procedural strategy in its own right.

Conclusion

Lapse of proceedings is not a procedural accident, it is the sanction of a failure to manage the timetable. The creditor who issues proceedings and then lets the file fall asleep does not keep its position: it weakens it, since Article 2243 of the Civil Code retroactively wipes out the interrupting effect of its action. For the defendant, by contrast, the lapse period is an inexpensive means of extinction, but one with a ruthless procedural regime, which is lost with the first submission on the merits.

The recommendation is simple and operational: have a two-date sheet drawn up for each pending dispute, showing the date of the last act interrupting lapse and the limitation date recalculated without the summons. The files where these two dates overlap within eighteen months call for immediate action, served and traceable, before any discussion of the merits or of the advisability of a settlement.

Frequently asked questions

What is the starting point of the two-year lapse period? The period runs from the last procedural act that is a useful step, that is, one showing the intention to pursue the proceedings and likely to move them forward. It starts again in full with each new step: interruption of lapse wipes out the time that has elapsed. Where the proceedings have been removed from the list, the period runs from the removal decision; on appeal on the basis of Article 524 of the Code of Civil Procedure, it runs from notification of that decision.

Does an exchange of letters between lawyers interrupt lapse? No, as a general rule. Case law requires an act that has entered the adversarial debate and is likely to advance the proceedings. An informal exchange between counsel, a letter to the client, a chaser from the court registry or an internal note are not interrupting steps. By contrast, service of submissions, communication of exhibits with a schedule or an application for a hearing date meet this criterion.

Do collective insolvency proceedings opened against the debtor protect the creditor from lapse? They interrupt the proceedings under Article L. 622-22 of the Commercial Code, which also interrupts the lapse period within the meaning of Article 392 of the Code of Civil Procedure. But this protection is not permanent: the proceedings resume by operation of law after the claim is filed and the insolvency representative is joined. A creditor who does not carry out these steps and waits passively for the outcome of the collective proceedings remains exposed to lapse.

Can lapse be raised for the first time before the trial bench? Not if a pre-trial judge could have been seised. Before the judicial court, Article 789 of the Code of Civil Procedure reserves to the pre-trial judge the applications that bring the proceedings to an end; before the court of appeal, the application falls to the pre-trial judge of that court. In addition, Article 388 requires lapse to be requested or raised before any other argument, on pain of inadmissibility, and it can no longer be requested after the opening of the hearing.

Can fresh proceedings be issued after lapse of proceedings? Yes, provided the action is not time-barred, Article 389 of the Code of Civil Procedure specifying that lapse does not extinguish the action. But none of the acts of the lapsed proceedings can be relied on or invoked, and Article 2243 of the Civil Code deems the interruption of limitation resulting from the initial summons not to have occurred. The limitation period, five years in commercial matters under Article L. 110-4 of the Commercial Code, is therefore recalculated from its original starting point, which often makes fresh proceedings impossible in practice.

What becomes of the appeal when the appeal proceedings have lapsed? Article 390 of the Code of Civil Procedure provides that lapse on appeal gives the judgment the force of res judicata, even if it has not been notified. The appellant loses for good the ability to challenge the first-instance decision. For a respondent holding a favourable judgment, lapse of the opposing appeal therefore consolidates its title, provided it has refrained from any step during the two years.

Can the judge record lapse without a party asking for it? Yes. Since Decree No. 2017-892 of 6 May 2017, the second paragraph of Article 388 of the Code of Civil Procedure allows the judge to raise lapse of its own motion, after inviting the parties to submit their observations. An inactive claimant can therefore no longer count on its opponent's silence, or on any tacit waiver by the latter, to keep its proceedings alive.