Nullity of Service Notice due to Defect of Form

Extract

[...] The Court of Cassation found that the justice commissioner who does not take hold with the post office when the addressee of the act has signed a re-exportation contract has not made sufficient diligence. (Cass. civ. 2e November 2011). In this case, the justice commissioner does not mention any diligence carried out with the post office. Therefore, there is a breach of the conditions allowing Jean's domicile to be established. Furthermore, the date on which the report was drawn up regarding Jean's place of work shows that Jean was present at his place of work at the same time. Finally, the phone number stated does not match Jean's. [...]

[...] In this case, these two types of service proved to be impossible due to the bailiff's inability to find Jean's domicile. Despite this, Jean has taken the necessary steps with the post office to track his mail. In addition, when service at home and in chambers is not possible, the judicial commissioner draws up a report of unsuccessful searches in which he justifies the circumstances that made service impossible (article 659 of the CPC), in particular by stating all the steps he has taken. [...]

[...] On the service of citation The citation is the act of justice drawn up by the plaintiff against the defendant through a justice commissioner to invite him to appear before a court of judicial order (article 55 of the CPC). The citation must be served by a justice commissioner (article 651 of the CPC). By principle, this service is made in person (article 654 of the CPC). To do this, the justice commissioner must go to the defendant's home, and failing that, to his place of work. [...]

[...] 2and July 1982, n°81-11.174). In this case, Jean suffered a hardship in that he did not appear at the hearing since he was not informed, and was thus condemned and now finds himself with deductions from his salary. The lack of mention of the diligence of the bailiff of justice constitutes a defect of form which does not lead to the nullity of the notification that on the demonstration by him of a hardship (Cass. civ. 2e December 2022, n°21-14.145). [...]

[...] He also states that he has gone several times to his workplace, without managing to find him. Therefore, it appears that personal service was not possible. In fact, by way of exception, when personal service is not possible, service may be made at the domicile (Article 655 of the Code of Civil Procedure), provided that the judicial commissioner mentions in the circumstances characterizing the impossibility of personal service (Cass. civ. 2e July 1983), and this in precise detail (Cass. civ. 2and July 1986). [...]