From the appeal as thus defined,cassation is usually held to differ sharply.There is no devolutive effect;the role of a jurisdiction of cassation is said to be exclusively to examine the legality of the decision under attack –and‘attack’is here an appropriate word,which it is not in relation to appeal. No proofs are admissible on cassation - the facts must be taken sa already found –and the court has only two options:it must either affirm or annul.In the latter event the parties are restored to the position in which they were before the defective decision was made;questions left outstanding must be resolved in another court,and that court must reach its own decision unfettered by anything that may have been said on cassation,even with regard to the correct interpretation of the law.
French procedure as it remained until 1837 provides an example of cassation in this sense,and so too does the old English writ of error.Under that procedure the record of the proceedings at first instance was brought before a court of error.If error was found on the record – a mainly formal document,consideration of which gave no opportunity to the court of error to reconsider questions of fact – the decision must be quashed and a new trial ordered.The powers of a court of error went no further;it could not even disregard an which in its view could not have affected the outcome of the trial.
The main purpose of this chapter is to examine how the two principal forms of recourse – have become impure,but preliminary mention must be made of two general matters,namely,first,the distinction between fact and law,which is so widely used in the regulation of methods of recourse,and,secondly,the character of the proceedings at first instance:if the methods of recourse,and in particular the appeals,of two different legal systems are to be compared,each must be considered against the background of the proceedings from which the appeal is brought.