Nullity of Act Due to Lack of Legal Personality

Extract

[...] It is understood from this provision that it is the validity of a procedural act that is being challenged, with the aim of obtaining its nullity. To this end, the Code provides two possibilities: either the act is flawed in terms of form, or it is so in terms of substance. Here, since we are talking about the capacity to act, one might think that what is being targeted is the action, which would therefore refer to a fin de non recevoir. [...]

[...] However, this is not how the defect of capacity to act is qualified in the civil procedure code. Indeed, Article 117 of the civil procedure code provides that 'constitute substantive irregularities affecting the validity of the act: lack of capacity to litigate; lack of power of a party or a person appearing in the proceedings as a representative of a legal person or a person with incapacity to act; lack of capacity or power of a person acting as a representative of a party in court'. [...]

[...] It is therefore likely that the judge will apply the solution of the decision of 4 March 2021 and retain that the company did not have the capacity to act at the time of the summons. [...]

[...] This is the case in point, since at the time of the introduction of the legal action, the company was in the process of being formed, and it was not yet registered in the trade and companies register, so it did not have legal personality. It is not possible to bring a lawsuit with a legal person that does not exist. There is a second condition to verify in order to pronounce the nullity of an act affected by a vice of substance, which is the absence of possibility of regularization. [...]

[...] The decision of the 3rd Civil Chamber of June provides an example: 'the irregularity of a procedure for declaring a claim initiated by a free trade union association lacking legal personality before the publication of its constitutive act is a fundamental irregularity that cannot be covered.' Or the decision of the 2nd Civil Chamber of March which states that 'it follows from articles 117 and 121 of the civil procedure code that a procedure initiated by a party lacking legal personality is tainted with a fundamental irregularity that cannot be covered.' A logical justification could be given for this: to regularize an act, it must first exist. However, no act can be formed by an entity lacking legal personality. This act is therefore non-existent and, consequently, cannot be regularized. [...]