The two-conclusion rule revisited

The 'two-conclusion rule' is an annoying pitfall for parties litigating on appeal. Contentions and defences may not be raised later than via the statement of appeal or the statement of defence. The Supreme Court recently axed the exception to this rule. The ruling is an indication to expressly object to new defences by the opposing party. HR 22 November 2022 ECLI:NL:HR:2022:1758

At issue in this divorce case was a particular compensation that the wife wanted to receive from the husband. That compensation was compensation for the inequality that can occur within the marriage. In French law, this is called the 'prestation compensatoire', and it is in addition to any alimony that may be awarded. The court had rejected the wife's request, but the husband's defence that no compensation needed to be paid had not been made until the occasion of the oral hearing before the court. That is too late, according to the 'two-conclusion rule', which is in principle strictly adhered to. One of the few exceptions to this rule is if the other party 'unequivocally' agrees to conduct the new defence. However, according to the court, the woman had 'not objected' to that new defence. That is not the same as 'unambiguously' agreeing. This was therefore complained about in cassation. The Supreme Court dismissed that complaint because it could be deduced from the transcript of the hearing that the woman had accepted the defence, thereby giving consent. The Supreme Court's ruling shows that a party faced with a new defence at the hearing is better off not responding to it. After all, that may be considered consent to raise that defence. Even remaining silent is not wise, as this can be seen as a form of consent, according to the judgment of the court of appeal, which was thus upheld in cassation. The lesson is that new defences should be explicitly objected to at the hearing, and that lawyers in particular should be vigilant when this happens.