Amicable expert assessment provided for in the contract: can the judge rule on the report alone? (Cour de cassation, 3rd Civil Chamber, 8 January 2026, No. 23-22.803)

In construction and real estate, an expert assessment is often necessary to determine the damage, its causes and who is responsible for it. Until now, caution prevailed: an amicable expert report (expertise amiable), even an adversarial one, was rarely sufficient on its own before the judge. The judgment of 8 January 2026 changes the position where the amicable expert assessment is organised in advance by a contractual clause agreed before the dispute arose.

1) The previous framework: the amicable expert assessment, useful evidence but generally insufficient on its own

Civil proceedings are governed by the adversarial principle: the judge must ensure it is respected and observe it personally (French Code of Civil Procedure (CPC), Art. 16).
The burden of proof lies with the parties (CPC, Art. 9; French Civil Code, Art. 1353).

On this basis, the Cour de cassation laid down a clear principle: unless a special provision applies, the judge cannot base a decision exclusively on a non-judicial expert assessment carried out at the request of one party. The mixed chamber affirmed this as early as 2012 (Cour de cassation, mixed chamber, 28 September 2012, No. 11-18.710).
The 3rd Civil Chamber restated it in a construction works case, even though the assessment had been carried out in the presence of the parties (Cour de cassation, 3rd Civil Chamber, 14 May 2020, Nos. 19-16.278 and 19-16.279).

In practice, the amicable report remained an excellent basis for negotiation but, in litigation, it had to be "bolstered" (contractual documents, correspondence, quotes, reports of findings, dated photographs). Failing that, a measure of inquiry could be requested, bearing in mind that it must never make up for a failure to adduce evidence (CPC, Art. 146). The conditions of such a measure requested before any proceedings are detailed in our article on summary proceedings (référé) for an expert appointment before a real estate or construction dispute.

2) The judgment of 8 January 2026: the exception for the "contractualised" amicable expert assessment

In the case decided on 8 January 2026, the parties had inserted in a project management contract (maîtrise d’œuvre) a clause requiring, in the event of difficulty, an amicable expert assessment conducted by an expert chosen by mutual agreement. Once the report was prepared, it was produced in the proceedings. The defendant argued that the court of appeal could not rule on the report alone, relying in particular on the adversarial principle (CPC, Art. 16) and the right to a fair trial (ECHR, Art. 6 § 1).

The Cour de cassation dismissed the appeal: it restated the general prohibition… and then added that "the position is different" where the assessment was carried out under the contract concluded by the parties by an expert chosen by mutual agreement (Cour de cassation, 3rd Civil Chamber, 8 January 2026, No. 23-22.803, FS-B).

Thus, where an amicable expert assessment is organised in advance in the contract, with a joint expert, the report may on its own found the judge's decision (provided it is submitted to adversarial discussion). This solution fits within the binding force of contracts (French Civil Code, Art. 1103).

3) Practical consequences: landlords, tenants, real estate professionals

For landlords (SCIs, investors, co-ownerships)

Works, development, project management or technical management contracts often contain a prior amicable expert assessment clause. From now on, if the clause is well drafted and properly implemented, the report may become the key item of evidence in the dispute (liability, costing, compensation). This reinforces the value of drafting these clauses rigorously: appointment of the expert, adversarial process, timetable, documents, written observations (dires), annexes.

For tenants (lessees, operators, traders)

Where defects affect leased premises (water ingress, non-compliant installations, ventilation defects), an amicable expert assessment clause in the lease or in the works contracts can speed up obtaining works or reparation of the loss, by limiting the need for a court-appointed expert assessment. Failing such a clause, the usual route remains a measure of inquiry before any proceedings (CPC, Art. 145). On the possibility for the tenant to require works under the landlord's obligation of delivery, see our analysis of failure of delivery and dilapidation in commercial leases.

For professionals (contractors, project managers, property managers (syndics), managing agents)

Accepting a contractual amicable expert assessment clause means accepting that an unfavourable report (if it was conducted on an adversarial basis) may suffice to convince the judge. In that case, the strategy is therefore played out "during" the assessment: attendance at the operations, written observations, production of documents, requests for probing or measurements, methodological criticism (and traceability). The same requirements apply in the judicial framework, the conduct of whose operations and the challenge of the pre-report are set out in our article on court-appointed expert assessments in real estate.

4) Litigation risks to anticipate

1. "Lock-in" effect: if a party does not take an active part in the amicable expert assessment, it is exposed to a report that is difficult to dismantle afterwards.
2. Inadmissibility for failure to implement the clause: where a contract requires a prior step (conciliation/expert assessment), failure to comply may lead to a plea of inadmissibility (fin de non-recevoir) (CPC, Art. 122; Cour de cassation, mixed chamber, 14 February 2003, No. 00-19.423).
3. Fragility of the engagement: a clause or an engagement letter that is too vague (scope of the defects, methodology, costing, responsibility) nonetheless increases the risk of a challenge on the merits to the evidential value of the amicable expert assessment.

5) Concrete strategies and recommendations

• Draft the clause and its implementation strictly: method of referral, time limits, appointment (and replacement in the event of disagreement), adversarial process (summons, written observations), access to documents, meetings, budget, form of the report.
• Provide a fallback if the expert is not chosen "by mutual agreement" (third-party appointment mechanism, list, president of a body, etc.), failing which the clause may become a source of deadlock.
• During the assessment: formalise everything (writings, annexes, photographs, exchanges), because it is this traceability that makes the report usable in litigation.
• Distinguish carefully this clause from a conventional inquiry agreed between lawyers: in that specific framework, the technician's report has the same value as an opinion given in a judicial measure of inquiry (CPC, Art. 131-8).

In conclusion, the judgment of 8 January 2026 establishes a powerful evidential lever in real estate and construction litigation: where the amicable expert assessment is provided for in the contract and conducted by an expert chosen by mutual agreement, the report may suffice to found the judge's decision. For project owners, landlords, tenants and professionals, the consequence is simple: the amicable stage is no longer an informal "airlock", it is often the decisive phase. A contractual review and an evidential strategy from the first defects often make it possible to save time, reduce costs and secure the claim (or the defence) before any summons.

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