This article concerns only the decisions of judicial jurisdictions (not administrative).
Why and how to force your opponent to execute the court decision? We will answer it.
In which cases and why do you want to enforce a court decision?
In theory, following a dispute, you succeed in obtaining a court decision condemning the party to comply with you (eg: pay a sum of money, or return property that belongs to you, etc.). This must be done quickly and spontaneously. However, in practice, this is very rarely the case.
In this case, it is necessary to call on a bailiff. He is the only legal professional competent to set up a procedure to oblige the other party to apply the court decision (except in the case where a seizure of property is necessary: it will be the judge)
You have been warned!, to implement a forced execution has only for objective to obtain, according to the court decision, a sum of money or to recover a good. Indeed, you cannot force an individual to perform an obligation "to do" when it is purely personal (eg the other party had undertaken to paint a picture, or build a piece of furniture because it has a unique method , etc …). However, you will still be able to obtain compensation (damages).
The conditions that must be met to claim forced execution
First of all, you need to have a enforceable title. This act makes it possible to obtain a forced execution. This title must note that what your opponent must give you exists. It makes it possible to justify the entry procedure.
The law considers as an enforceable title:
- Court decisions
- Acts approved by the judge, such as a transaction
- The minutes signed by the parties and by the judge
- Notarial deeds bearing the executory formula: “ Consequently, the French Republic summons and orders all Bailiffs on this request to put the said decision into execution, the General Prosecutors and the Public Prosecutors at the High Courts to hold the hand of all Commanders and Officers of the Force Publique to lend a hand when legally required to do so. In witness whereof, this decision has been signed by the President and the Registrar ».
- The document issued by the bailiff in the event of non-payment of a check…
We detail below the conditions to be met in the event of an enforceable title obtained through a court decision. Indeed, this is the most common case in practice and it is the one that interests us in this article.
Let's admit that you have a court decision, in this case, your opponent must not appeal it: appealing suspends the execution of the 1st decision, which prevents any measure of forced execution (we say that the decision must be final, "passed into force of res judicata").
However, forced execution may be requested if the judgment rendered by the 1st judge is accompanied by a “provisional execution”. This feature is written and justified in this 1st judgement, you are informed by the judge or your lawyer. But beware, this can be risky. Indeed, if the judgment later gives reason to your adversary, you will have to restore what was granted to you.
Furthermore, the judgment must have been notified to the adversary. To be sure, you can ask the court that made the decision. If the judgment has not been notified, you must contact a bailiff and ask him to serve the judgment on your opponent. In fact, you can only force the other party if they are aware of the decision.
Therefore, it is recommended to use a bailiff. This one will be able to make sure that the adversary received the decision well. In addition, it is the competent person to implement a forced execution procedure if necessary.
Do you think you have the right to ask your opponent to comply?
It is advisable to call on a legal professional (the bailiff, a lawyer, etc.) who can tell you in detail whether the deadlines are respected, whether the conditions are met, and whether you have an enforceable title.
How to obtain a forced execution?
First of all, it is better to try a amicable approach. To do this, by mail, ask your opponent to fulfill the obligations he owes you within a certain period (for example, set a deadline of 15 days). In addition, you can tell him that you want to call on a bailiff to compel him to comply if he does not do so (remember to specify that the bailiff's costs will be borne by the convicted person.) This amicable approach can be advantageous for you as well as for him: it avoids a long procedure, and additional costs (acts relating to the seizure, etc.). In addition, it allows you to quickly receive what your opponent owes you, and prevents him from seeing his bank accounts or his goods seized by a bailiff.
It is strongly advised to send this mail by registered mail with acknowledgment of receipt. The interest is to be able to precisely date the moment at which the other party became aware of your warning. Thus, you will be able to provide proof that he has received your request and that you have tried to resolve the dispute amicably.
In case of failure of the amicable approach, the intervention of the bailiff is necessary.
As we said previously, the bailiff's costs (which are in particular the costs of the various acts which will be carried out) will be borne by the loser, therefore in theory by your opponent who has not respected his obligations. However, to be able to start the enforcement procedure, the bailiff often asks you for a provision to cover the cost of the first acts.
To find out more about the follow-up
In a 1er time, the bailiff will send your opponent a payment order. This act has the same role as your possible amicable approach: it will give your opponent 8 days to allow him to comply voluntarily. If he does not comply, at the end of this period of 8 days, the bailiff, within a period of 2 years, may initiate various measures to force the other party to pay.
These different input measures are called " execution methods ».
Seizure of bank accounts
If it is a "small" sum, it will be wise to request a seizure of the sums present on the comptes bancaires of the adversary by a seizure-attribution. The judicial officer has powers allowing him to interrogate bank files, in order to know all the information necessary to communicate with the opponent's bank.
Entering remuneration
It is also possible to enter the remuneration of the opponent. A sum will be deducted directly from his salary. You should know that in this case, you will be summoned by the district court (court exclusively competent for the seizure of remuneration), in order to attempt a conciliation which is mandatory.
Not all sums present in bank accounts can be seized: the account holder must be left with enough to live on, which corresponds to the amount of the RSA for a single person. The opponent is informed within 8 days by the bailiff of the seizure of his accounts, and he has 1 month to contest this decision.
Seizure of furniture
For larger sums, and the previous entries are insufficient, it is then possible to make a seizure of furniture of the loser (the debtor). We prefer the seizure of furniture, before the seizure of buildings.
Still after the 8-day period, the bailiff will come to your opponent's home. He reminds him that he can now pay the amounts due. Otherwise, it will start capturing furniture.
However, he cannot seize all of the loser's furniture: he must indeed leave the goods he needs at his disposal: clothes, souvenirs, a table and chairs, etc. As well as medical equipment if he has health problems. health for example.
The seized goods will be recorded in a report. From the delivery of the report by the bailiff to the adversary, the latter can no longer sell or transfer the seized furniture. He can't move them either.
Once the furniture has been seized, he has a period of 1 month to sell the seized furniture amicably. He informs you (most often through the bailiff) of any possible sale in this way.
At the end of the 1 month period, the goods will be sold by auction, which will be carried out by an auctioneer.
Seizure of buildings
If the seizure and sale of your opponent's furniture prove insufficient because the amount he owes you is very large, it is possible to consider a seizure of buildings.
In this procedure, it is Mandatory to hire a lawyer : this seizure now takes place in court.
After the expiry of the period of 8 days after the order to pay, the bailiff will then draw up a report describing the property seized. Your lawyer will have to file the order to pay with the Conservation of mortgages: in the case of a building, this allows everyone to be informed of the upcoming sale of it. He will testify in court (at enforcement judge), a specification containing the essential information for the sale, as well as any creditors already registered on this building, that is to say in particular those having a mortgage on this property.
An amicable sale is possible at the request of your opponent. Otherwise, a forced sale will be ordered by the judge, and the auction will be done in court, through lawyers.
