Proof of legal acts, probative force of the copy

Jefferson Larue, associate lawyer at Arst lawyers presents the proof of the legal acts and more particularly the probative force of the copy compared to the original.

In French law the principle is that the 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 pride of place to proof in writing.

For example, any contract whose value exceeds 1500 euros must be proven by the production of a writing. The writing is defined by article 1365 of the Civil Code as a series of digits, letters of character or any other intelligible symbol whatever whatever their medium.

Traditionally and still mostly today the most used medium is the paper medium even if it must be remembered that the electronic medium is now recognized in our law and has been for about twenty years.

In practice it happens that we do not keep the original written support either because we have lost it or because as part of a voluntary process of dematerialization and indeed we digitize these paper documents.

The question then arises as to what is the probative value of the copy compared to the original available.

The answer is provided by article 1379 of the civil code which says that the reliable copy has the same value as the original.

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

In the case of a copy from an electronic medium, reliability is presumed when this process uses an electronic imprint system which can be either a time-stamping process or a certified electronic stamp or signature.

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

A recent decision by the Montpellier Court of Appeal (Montpellier Court of Appeal, 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 challenged to its president, the latter had provided a simple copy of a general meeting report and an extract from the decisions of the board of directors the court of appeal , in the absence of extrinsic elements demonstrating not only the reality of the holding of this assembly or this board of directors but also in the absence of element justifying that the decisions which had been taken made the object of a publication considers that simple copies have no probative value.

In conclusion, it is therefore still advisable to keep your originals, papers in particular, and in the event of voluntary dematerialization, to ensure that the copies that will be made meet the conditions laid down by the Civil Code to benefit from the presumption of reliability.