Judgments of the Plenary Assembly of the Court of Cassation of 27 June 2025 (appeals nos. 22-21.146 and 22-21.812)

The Court of Cassation, sitting in plenary session on 27 June 2025, handed down two important decisions (appeals nos. 22-21.146 and 22-21.812), providing decisive clarification on the concept of loss of opportunity and the scope of the judge’s role in the context of a claim for compensation.

Background to the decisions

In the first case (No. 22-21.146), SCI Les Baobabs accused the notary of failing to inform it of the urban planning restrictions associated with a property purchase, which had compromised its initial property development project. The financial loss incurred included bailiff’s fees, compliance work, reimbursement of partners’ contributions and operating losses.

The Court of Appeal recognised that the notary had been negligent but rejected the claims for compensation, considering that they amounted to a loss of opportunity that the company had not explicitly invoked as a basis for its claim (Report of Ms Bacache, appeal no. 22-21.146).

In the second case (no. 22-21.812), the facts were quite similar.

A company called Unipatis accused its lawyer of failing to inform it of the possibility of waiving a non-competition clause in the event of dismissal. The Court of Appeal, while acknowledging a breach of the duty to inform and advise, rejected the claim for compensation on the grounds that it constituted a loss of opportunity that the company had explicitly ruled out, preferring to seek full compensation for the damage.

Contributions of the decisions

The nature and compensation for loss of opportunity

Ms BACACHE’s report emphasises that case law consistently rules, pursuant to Article 4 of the Code of Civil Procedure, that:

‘the judge may not refuse to rule on the basis of insufficient evidence provided by the parties’ or that ‘the judge may not refuse to assess damage which he finds to exist in principle on the grounds of insufficient evidence provided by the parties’ (in particular 3^rd Civ., 6 February 2002, appeal no. 00-10.543 or 3rd Civil Chamber, 29 June 2022, appeal no. 21-15.741, published).

Ms BACACHE also points out in her report that loss of opportunity constitutes a separate but dependent damage, characterised by the ‘current and certain disappearance of a favourable possibility’. This damage is compensable in proportion to the opportunities lost and can never be equivalent to compensation for the entire damage.

In both judgments, the Plenary Assembly firmly stated that the judge cannot refuse to compensate for a loss of opportunity that he has found to exist on the sole ground that the victim sought full compensation and not compensation on this specific basis. The judge is obliged to rule on the very existence of damage that he finds, provided that he has first invited the parties to submit their observations on this possible classification.

Thus, the Plenary Assembly partially overturned the judgments handed down by the Courts of Appeal of Limoges and Versailles for refusing to compensate for losses of opportunity that they had nevertheless found, on the pretext that the plaintiffs had only sought full compensation for their damages.

These two decisions clarify the role of the judge and the office of the judge.

The judge must compensate for loss of opportunity even if it has not been invoked by the claimant, provided that he finds that it exists. This obligation stems from Article 4 of the Civil Code and Articles 4 and 5 of the Code of Civil Procedure.

Practical consequences

• Judges must systematically invite the parties to express their views on the classification of loss of opportunity whenever uncertainty about the occurrence of the damage is raised, even implicitly, in the proceedings.
• The courts of first instance must strictly comply with this principle in order to guarantee the effectiveness of the right to compensation of the injured parties.

The judge will no longer be able to reject claims on the grounds that full compensation for the damage is being sought instead of partial compensation for loss of opportunity.

This decision will be welcomed by persons seeking compensation for their loss, as they will no longer be able to have their claims dismissed entirely on the sole ground that they did not seek compensation for loss of opportunity.

Article written by Maître Olivier VIBERT, lawyer at the Paris Bar and partner at Kbestan, a business law firm based in Paris and Evreux.