Proof of legal acts, the probative value of a copy

Jefferson Larue, partner at Arst Avocats, presents the proof of legal acts and more specifically the probative value of the copy compared to the original.

In French law, the principle is that proof of a legal act such as a contract can be done by any means.

However, the law provides for a large number of exceptions which give considerable weight to written evidence.

For example, any contract whose value exceeds 1500 euros must be proven by the production of a written document; the written document is defined byArticle 1365 of the Civil Code as a sequence of numbers, letters, characters or any other intelligible symbol, regardless of their medium.

Traditionally, and still predominantly today, the most used medium is paper, although it should be remembered that electronic media has been recognized in our law for about twenty years.

In practice, it sometimes happens that the original written document is not kept either because it has been lost or because, as part of a voluntary dematerialization process, these paper documents are digitized.

The question then arises as to what the probative value of the copy is in relation to the original one has.

The answer is provided by article1379 of the civil code which states that a reliable copy has the same value as the original.

The reliability of a copy on paper is presumed by the Civil Code when that copy results from the use of a process which causes an irreversible modification of the medium which is used.

When it comes to a copy from an electronic medium, reliability is presumed when this process uses an electronic fingerprinting system which can be either a timestamping process or a certified electronic seal or signature.

Apart from these cases, reliability is freely assessed by the judge.

A recent decision by the Montpellier Court of Appeal (Court of Appeal of Montpellier, 1st Chamber D 7/11/2019 RG n°19/00455) reminds us that this assessment can be very severe.

In a case where the power to represent an association in court was contested in its president, the latter had submitted a simple copy of a general meeting's minutes and an extract of the board's decisions. The Court of Appeal, in the absence of extrinsic evidence demonstrating not only the reality of the holding of this meeting or this board of directors but also in the absence of evidence justifying that the decisions which had been taken had been published, considers that the simple copies have no probative value.

In conclusion, it remains advisable to keep your originals, especially papers, and in the event of voluntary dematerialization, to ensure that the copies that will be made meet the conditions set out by the civil code to benefit from the presumption of reliability.