Extract
[...] The question is, on the one hand, to determine whether the clause is valid and constitutes an obstacle to the legal action and, on the other hand, to determine the procedure to be followed to establish the proof he wishes On the clause A legally formed contract is binding on the parties who concluded it (article 1103 of the Civil Code). In this case, the contract binding the architect's office and Jean-Paul provides for a mandatory amicable preliminary step. Constitutes a final refusal, any means intended to declare the other party's demand inadmissible, without examination on the merits, for lack of right to act (article 122 of the CPC). The clause of a contract establishing an obligatory and preliminary conciliation procedure before the judge's jurisdiction, binds the judge if the parties invoke it. (Cass. ch. [...]
[...] mixte February 2003, n°00-19.423), and whatever its nature (Cass. civ. 1he, 1he October 2014, n°13-17.920). In this case, the contract provides for an amicable preliminary step before referring the matter to the court, which must be respected by the parties, on pain of inadmissibility due to a bar to proceedings. Thus, the clause establishing the mandatory amicable preliminary step is admissible, and prevents the legal action as long as the preliminary step has not been satisfied. On the establishment of proof It is necessary to distinguish, on the one hand, the referral in futurum and on the other hand, the applicability of the prior clause of conciliation On the referral in futurum Dès lors qu'il est legitimate to preserve or have established a proof whose solution depends on the dispute, before any lawsuit, the judge of the referral can be seized, in order to order all the legally admissible measures of investigation (article 145 paragraph 1 of the CPC), and without an urgency being present (Cass. [...]
[...] On the applicability of the prior conciliation clause In this case, Jean-Paul wishes to bring an action in the context of a future reference, despite the existence of a prior conciliation clause in the architect's contract. The recourse to a conventional amicable mode of dispute resolution does not prevent a judge from ordering an investigative, conservatory or provisional measure (Article 1537 of the CPC), so that a clause establishing, in the event of a dispute relating to an architect's contract, a prior recourse to the regional council of the order of architects, is not applicable in the context of the action brought on the basis of Article 145 of the CPC in order to gather evidence (Cass. [...]
[...] civ. 2e June 2014, n°13-19.967). In this case, Jean-Paul wants to establish the proof of poorly performed work in order to be able to subsequently bring a contractual action against the various service providers and the architecture firm. The judge of the referring judge is entitled to order any investigative measure that can serve as a basis for a contractual liability action. (Cass. civ. 3e December 1980, n°79-11.035), such as an expertise (Cass. civ. 2and October 1995, n°92-20.496). [...]
