In principle, we cannot obtain payment terms.
Article 1244 of the Civil Code provides that " the debtor cannot force the creditor to receive part of the payment of a debt, even if it is divisible ". This means that payment must be made as soon as the obligation becomes due and all at once.
A principle included in article R. 121-1 of the code of civil enforcement procedures, the JEX " may neither modify the operative part of the court decision which serves as the basis for prosecution, nor suspend its execution ».
But like any principle, there are exceptions.
Several judges may grant payment terms.
- The magistrate is responsible for entering remuneration
- The trial judge may grant time limits when rendering its decision. This involves ordering the debtor to pay an amount due, while at the same time providing for the possibility of deferring its execution with the establishment of a schedule (article 510 of the Code of Civil Procedure).
- The summary judge which on the basis of articles 510 paragraph 2 and 808 of the code of civil procedure allow can accompany its decision of payment deadlines. But he can only intervene before the service of a command to pay and therefore before the implementation of the execution measures.
But if the creditor has initiated the recovery procedure, only the execution judge will be competent.
Deferral of the debt : We postpone the time of its payment in one go. The JEX sets the date on which the debt must be fully and definitively paid
The staggering of the debt : We spread the payment of the creditor by successive monthly installments, it is a schedule.
Powers of the Execution Judge
The execution judge can intervene as soon as an order to pay or a seizure process is served for:
- Either grant Payment period with the deferral or staggering of the debt over a maximum of two years (1244-1 of the civil code).
- Is reduce the amount of debt with your choice:
- Decrease in the interest rate provided for in the contract and attach a reduced interest rate to deferred maturities. This rate cannot be lower than the legal rate (no zero rate) according to article 1244-1 paragraph 2 of the code of civil procedure.
- or the offsetting of future payments to capital.
The JEX is free to determine the amount of the installments. It can either divide the amount of debt over 24 months (maximum); or provide small monthly payments with the payment of the balance in the 24th month. Everything will depend on the financial possibilities of the debtor.
The judge can, in return for the pardon measures, impose on the debtor the obligation to guarantee the payment of the debt such as the constitution of a guarantee (article 1244-1 paragraph 3).
The conditions for granting payment terms
It is for the judge to assess the request (article 6 of the Code of Civil Procedure). To benefit from payment delays, the debtor must produce evidence demonstrating his financial difficulties.
Article 1244-1 of the Civil Code strictly regulates the action of the JEX. He can only grant deadlines after having assessed:
The deadlines granted must not harm the financial balance of the creditor. A distinction will be made between institutional creditors (bank, insurance, etc.) and individual creditors (loan, sale of a used vehicle, etc.).
The debtor's situation
It is assessed on the basis of:
- The existence of personal or professional difficulties that do not allow him to meet his obligations (unemployment, modest income, a company in difficulty, etc.)
- His good faith: Good faith is not imposed by texts but by case law. It is a question of assessing the behavior of the debtor with regard to his material situation, his efforts to repay his debts (disproportion noted between the amounts owed and the income received).
If the debtor has not paid the least sum to the creditor for several months, this will tend to demonstrate his bad faith (because he has automatically granted himself payment periods) and therefore the refusal of an additional period.
These two cumulative criteria are freely assessed by the judge and will be included in his decision to justify the time limits thus granted. In the event of rejection, the JEX will not have to justify its decision.
Namely: Justifying its difficulties by invoking the existence of legal proceedings brought by other creditors will not be a relevant argument because Article 512 of the Code of Civil Procedure sees it as a breach of equality between the debtor's creditors (the others will be reimbursed but not the one that is drawn in front of the JEX).
The limits of the competence of the JEX
The limits will depend on the nature of the debt and the situation of the debtor.
The nature of the claim
The JEX is incompetent for social (competence of the TASS), fiscal, maintenance (article 1244-1), salary, or commercial debts such as bills of exchange (article 182 of the commercial code) and promissory notes ( article 185 of the commercial code); As well as criminal fines, and civil interests
The debtor's situation
Article 512 of the Code of Civil Procedure prohibits the granting of grace periods to the debtor:
- being in receivership or liquidation (the competent judge is that of the commercial court)
- having organized his insolvency by reducing the creditor's guarantees provided for in the contract (manifest bad faith)
The conditions for granting new payment terms
The principle is that if delays had already been granted to the debtor, in particular by the trial judge, he will not be able to obtain new ones.
However, exceptionally, he will be able to benefit from it if:
- The creditor is not put in difficulty by a new deadline.
- New elements make it impossible to respect a decision or a deadline already agreed. According to the dedicated formula, “significant changes must have taken place in the family or professional life of the debtor making it impossible to fulfill an obligation”.
- The totality of the deadlines granted by the trial judge or summary proceedings and the JEX, must not exceed the 24 legal months.
The sanction of non-compliance with payment deadlines
The JEX will match the payment deadline with a forfeiture clause.
If the debtor does not respect its commitments, and a single unpaid installment will suffice, he will lose the benefit of the grace period.
The forfeiture will apply even if the decision does not mention it. Article 1244-1 conditions its application to forfeiture in the event of non-compliance with the time limits granted.The debtor must be vigilant on the deadline indicated by the JEX during the hearing (every 1st or 5th of the month) and the month from which the timeline is set.
It may happen that the date falls before the notification of the decision, in particular if the hearing is contradictory (the debtor and the creditor are both present or represented during the hearing).
According to article 511 of the Code of Civil Procedure “ the deadline runs from judgment day when it is contradictory; in other cases, it only runs from the day of notification of the judgment ».
This means that the decision applies from the day the decision is rendered and not from its notification. If the debtor fails to pay this first installment, the plan will fall even before having been able to benefit from it (Cass. Civ., 2nd of February 12, 2004 appeal n ° 02-13.344).
What is the role of a judicial officer?
It is important to pay your taxes correctly, and to respect your debts so as not to have a problem with the justice system, as for example with the bailiffs. The professions of justice are very important for the life of the citizens. They show authority and people listen to them. Bailiffs, for example, have two main missions: they must execute the decisions that have been taken by the courts, but they must also establish certain authentic acts. However, he has other missions, it depends on what he has to do. The bailiff's mission is also to seize the furniture of a resident, or even to expel him.
When to call a bailiff ?
There are many situations in which you can appeal to a bailiff. For example, you can ask the bailiff to come if you have unpaid invoices, or any dispute concerning your private life such as an argument with a neighbor for example. If the taxes are not paid, the bailiff can apply to the creditor in question, in order to have the debt reimbursed. In addition, in the event of a problem with a third party, you will save time and you will not lose money if you use a bailiff rather than going to court until the trial. You can also make an appointment with the bailiff to see if he can meet your expectations.
What is an act of bailiff?
The act of bailiff is the bailiff's tool. It is an act which was signed and drafted by a bailiff. There are different kinds, such as summons, service of a decision or summons. The bailiff act is rarely compulsory, because it is requested by the person who called on a bailiff. However, the act may become compulsory, especially if it has been called by the courts to evict a person who no longer pays his rent, for example.
By having an act of bailiff, you can be in legal certainty, which is more reassuring. Anyone can call on a bailiff, you can also get a free estimate on the Internet, to see how much it will cost you. If you use a bailiff, you will save a lot of time. In addition, the act of bailiff is difficult to contest, so you will have a better chance of achieving your goals. The bailiff therefore takes care of managing the case.