Default of payment is in itself insufficient to oblige a debtor to honor its debts. If he does not pay spontaneously, the creditor will have to exercise recovery proceedings to force his debtor to perform: This is called enforcement proceedings.
But before implementing the enforcement procedure, the creditor must first prove the existence of his claim and have it recorded in a title.
The prerequisites for obtaining an enforcement title
Before suing a debtor, the creditor must demonstrate the validity of his claim. It must be liquid, payable and judicially recognized, this is called the enforceable title.
A liquid and payable debt
A claim is liquid if it can be measured in money.
A debt is due if no condition precedent, nor any term differs from it or suspends its execution.
Issuance of the writ of execution
Article 2 of Law 91-650 of July 9, 1991: " The creditor provided with an enforceable title establishing a liquid and payable debt may continue the enforcement thereof on the property of his debtor under the conditions specific to each enforcement measure. ».
Enforcement titles are defined in 1 ° to 3 ° of Article L. 111-3 of the Code of Civil Procedures, they are:
- Decisions of the courts of the judicial or administrative order
- Transactions submitted to the president of the tribunal de grande instance when they are enforceable
- Foreign acts and judgments
- Arbitral awards declared enforceable by a decision that cannot be appealed against to suspend execution
- Extracts from the conciliation minutes signed by the judge and the parties
- Notarial acts bearing the executory formula
- The title issued by the judicial officer in the event of non-payment of a check
- Titles issued by legal persons governed by public law qualified as such by law
- Decisions to which the law attaches the effects of a judgment.
Since October 1, 2016, we must add the new provisions allowing the judicial officer to issue an enforceable title in the context of amicable recovery small debts (- 4 euros) which are of contractual origin (lease contract, credit, etc.).
However, having a title is not enough, several steps must be taken before proceeding with the forced execution.
The conditions of validity of an enforceable title
For a court decision (ordinance, judgment, judgment, etc.) to be enforceable, it must be covered by the enforceable form, be final, have been notified or regularly served on the debtor, within the limits of the limitation period.
The executory formula
The writ of execution, the ordinance or the judgment, must contain the formula enacted in Decree n ° 47-1047 of June 12, 1947 relating to the enforceable formula, in order to be validly executed:
"The shipments of judgments, judgments, court orders, as well as the bulk and shipments of contracts and all acts susceptible of compulsory execution, will be entitled as follows:
" French Republic
"In the name of the French people", and ended with the following formula:
"Consequently, the French Republic orders and orders all bailiffs, upon this requisition, to put the said judgment (or the said judgment, etc.) into execution, the general prosecutors and the public prosecutors near the high courts to hold hands there, to all commanders and officers of the public force to lend a hand when they are legally required to do so.
"In witness whereof, this judgment (or judgment, etc.) has been signed by ...".
A final decision
All avenues of appeal against the decision recognizing a claim must be exhausted.
As long as the means of appeal are likely to be exercised, the decision may be reformed or annulled on appeal or by way of opposition.
The opposition can be exercised when the debtor who was absent at the hearing has been judged by default. The appeal is brought before the judge who made the first decision so that he can retract (change his mind).
As long as the decision is not final, it is suspended and is therefore not enforceable. But there are exceptions to this principle.
The cassation appeal is not suspensive. The decision rendered in appeal applies pending the judgment rendered by the judges of cassation.
Except in matters of nationality (art. 1045 of the code of civil procedure), divorce (art. 1086 and 1087 of the code of civil procedure), adoption (art. 1178-1 of the code of civil procedure). The appeal is suspensive so as not to create instability in matters relating to the condition of persons.
According to article 501 of the Code of Civil Procedure: “The judgment is enforceable, under the following conditions, from the moment it becomes final, unless the debtor benefits from a grace period or the creditor of provisional enforcement ”.
The judge can add a provisional execution to a decision (JAF order, etc.). In this case, it will be possible to enforce the judgment even if the remedies have not been exhausted.
A decision duly notified and served
The notification allows the debtor to learn about the decision taken against him.
Article 503 paragraph 1 of the Code of Civil Procedure provides that "Judgments can only be executed against those to which they are opposed after having been notified to them, unless the execution is voluntary".
Article 675 paragraph 1 of the Code of Civil Procedure specifies that: "Judgments are notified by service unless the law provides otherwise".
The service means that the court decision is brought to the attention of the debtor (notified) by a bailiff.
If a decision is not properly served, it cannot be enforced. But here too there is an exception provided for by law.
Decisions delivered on the spot
In urgent cases, and exceptionally, a court decision may be executed without being served.
This possibility is granted by article 503 paragraph 2 of the code of civil procedure: "In the event of execution at the sight of the minute, the presentation of this one constitutes notification".
These are mainly orders on request which are issued by the judge at the end of a non-adversarial procedure. They are enforceable on the spot, that is to say on the sole presentation of the original decision which is called " the minute ".
The original of a judgment is called the “minute”.
The complete copy of a judgment is called the “Big”.
The partial copy of a judgment is called the “extract”.
Rulings on the minute will not have to be served.
A non-prescribed title
Since the 2008 statute of limitations reform, if the enforceable title is a judicial decision (order, judgment), the creditor has 10 years from the service to implement it (before 2008, it was 30 years!).
Article L. 111-4 of the Code of Civil Enforcement Procedures specifies that enforceable titles can only be pursued “for ten years, unless the actions for the recovery of debts noted therein are time-barred by a longer period. . "
If the enforceable title is a notarial deed or a title issued in the event of non-payment of a check, the limitation period is that of the debt on which the title is based.
It is only once all these formalities have been completed that the creditor can brandish his enforceable title and force his debtor to pay. The prosecution will usually begin with a command to pay.
Forced execution in kind
If you find yourself in the delicate situation where a debtor decides not to respect the obligations to which he is subject, do not worry, there are solutions to this problem. For his part, the creditor will have the power to have recourse to several alternatives, several possibilities, to enforce the obligations of the debtor in question: such as theforced execution in kind. He can act alone, or have recourse to a third party to assert his rights. In this way, the creditor is fully entitled to impose the performance of an obligation. And in other cases, the creditor can appeal to a judge in order to obtain the execution, the realization, of the obligations not respected by the debtor.
We hope you never have to face such a situation, but now you are able to analyze such behavior. And you also know that it is quite possible for you to resort to the enforcement procedure to enforce the debtor's obligations. Because in the absence of the spontaneous execution of the court decision, you must enforce these obligations in one way or another.