Have you entrusted a valuable item to someone who refuses to return it? Have you bought something and the seller is not delivering it? The injunction to deliver or return procedure is an effective way of quickly obtaining a writ of execution. It allows you to force the handover of an item of personal property without going to court.
Presentation of the injunction procedure
Definition and objective
A delivery or restitution order is a simplified procedure enabling a creditor to obtain a writ of execution to compel a debtor to hand over movable property. It is designed to avoid the need for lengthy and costly legal proceedings.
As stated in article L. 222-1, paragraph 2 of the Code of Civil Enforcement Procedures : "The enforcement judge may issue the writ of execution provided for in the first paragraph under conditions laid down by decree in the Conseil d'Etat.
This is an initially non-adversarial procedure, based on the principle of reversal of litigation.
Legal framework
This procedure is governed by articles R. 222-11 to R. 222-16 of the Code of Civil Enforcement Procedures. These texts set out the conditions for admissibility, jurisdiction and the possible consequences of the order.
Benefits of this procedure
The main advantage of this procedure is its speed and efficiency. Without this procedure, it would be necessary to bring an action on the merits before the court, with the delays that this entails.
For example, for a retailer who has sold equipment subject to retention of title and whose buyer fails to pay, this procedure enables the goods to be recovered quickly.
Implementation of the procedure
Filing the application
The application must be submitted to the enforcement judge. It must contain a number of elements, failing which it will be inadmissible:
- A detailed description of the goods for which delivery is requested
- Supporting documents (contract, purchase order, proof of payment, etc.)
As article R. 222-12 of the Code of Civil Enforcement Procedures emphasises: "On pain of inadmissibility, the request shall contain a description of the property for which surrender is requested, accompanied by any document justifying the request.
The evidence required varies according to the origin of the right claimed. Case law has clarified that it is not necessary for a contract to exist between the owner and the debtor of the property claimed (CA Paris, 9 May 1996).
Jurisdiction of the enforcement judge
The competent court is exclusively the enforcement court of the place where the debtor lives. This rule is a matter of public policy.
Article R. 222-11 of the Code of Civil Enforcement Procedures states that : "The application shall be brought before the enforcement judge of the place where the debtor resides. Any clause to the contrary shall be deemed null and void. The court to which the application is made must declare of its own motion that it does not have jurisdiction.
Neither the president of the commercial court nor the over-indebtedness judge has jurisdiction in this matter. The Court of Cassation confirmed this in a ruling dated 24 November 1993 (no. 91-16.740).
Contents of the prescription
If the court grants the application, the order will include an injunction to the debtor to deliver or return the property. The order must state the reasons on which it is based, even if it is made without the presence of both parties.
The grounds may be succinct. The Court of Cassation accepts that an order may adopt the grounds of the application without reproducing them (Cass. 1re civ., 24 Oct. 1978).
The judge has discretionary powers. He may refuse or modify the requested conditions of transport and delivery of the goods.
Follow-up to the order
Service of the order
The order must be served on the person required to deliver it by a bailiff. It cannot simply be served by post.
According to article R. 222-13 of the French Code of Civil Enforcement Procedures, service of the summons must contain, on pain of nullity, a summons specifying two options for the debtor:
- Transport the goods at its own expense to the specified location within 15 days.
- or lodge an objection if it has means of defence
Such service was deemed improper where it was delivered after the pledgee had received payment of the sum secured by the property claimed (TGI Riom, JEX, 23 March 1993).
Time limit for lodging objections and affixing the executory clause
The debtor has 15 days from the date of service to lodge an objection.
If there is no opposition within this time limit, the creditor may apply to the court clerk's office to have the order formally enforced. This formality transforms the order into a writ of execution with the effect of a final, contradictory judgement.
The court clerk who issues the enforcement order only checks that there are no objections, without checking that service has been properly effected.
Enforcement
Once the executory clause has been affixed, the order becomes a writ of execution enabling the enforcement of a claim. input-apprehension.
Article R. 222-16 offers an additional advantage: if the property is seized within two months of the date of execution, it can be seized without a prior court order, which creates a surprise effect.
This effective measure is possible if the property is "in the hands of the person referred to in the injunction", even without the usual conditions set out in article R. 222-3 (presence of the debtor and no offer of transport).
Disputes and appeals
Objection by the debtor
Opposition is a specific remedy available to the debtor. It must be lodged with the registry of the enforcement judge by declaration against a receipt or by registered letter with acknowledgement of receipt.
This objection does not have to be justified. The Arras Court of Appeal confirmed this in a decision dated 9 December 1993. However, the debtor must clearly express his intention to contest.
The form of opposition is governed by article R. 222-13, 2° of the Code of Civil Enforcement Procedures. Case law has specified that it is not necessary for the term "opposition" to be mentioned, if the disagreement is clearly expressed (CA Rennes, 8 Nov. 2013, no. 11/04329).
The objection period is 15 days from service of the order, regardless of whether the order was served personally or not.
Referral to the trial judge
In the event of opposition, it is up to the claimant to bring an action before the competent court to rule on the delivery or return of the goods.
Article R. 222-14 of the French Code of Civil Enforcement Procedures provides as follows: "In the event of opposition, it is up to the person requesting delivery of the goods to bring the matter before the court having jurisdiction to rule on the delivery or restitution of the goods.
Depending on the nature of the dispute, the court with jurisdiction is either the magistrate's court or the commercial court, rather than the enforcement judge, who has no jurisdiction over the merits of the case.
Consequences of opposition
An objection prevents the order from becoming enforceable. However, it does not automatically bring the matter before any court.
If the competent court is not seised within two months of service of the order, the order becomes null and voidand the precautionary measures taken.
The Court of Cassation has ruled that failure to bring an action before the competent court will result in the claim lapsing only in the event of a duly filed opposition (Cass. 2e civ., 7 Jan. 1999, no. 96-20.975).
Lapse of precautionary measures
The order lapses, as do any precautionary measures taken on the basis of it, such as an order for the payment of a fine. attachment.
The order lapses if the court hearing the case is not seised within two months of service of the order. The creditor must therefore be vigilant about this time limit.
Article R. 222-14, paragraph 2 of the Code of Civil Enforcement Procedures is clear: "The application and the injunction order, as well as any precautionary measures taken, shall lapse if the matter is not referred to the court hearing the case on the merits within two months of service of the order.
The injunction to deliver or restitute is a valuable tool for creditors. It makes it possible to quickly obtain the return of an asset without going through lengthy proceedings on the merits. However, its implementation requires a legal expertise and particular attention to deadlines and formalities.
Sources
- Code of civil enforcement procedures: articles L. 222-1 to L. 222-2 and R. 222-11 to R. 222-16
- Court of Cassation, 1st Civil Division, 24 November 1993, no. 91-16.740
- Court of Cassation, 1st Civil Division, 24 October 1978
- Court of Cassation, 2nd Civil Division, 7 January 1999, no. 96-20.975
- Paris Court of Appeal, 9 May 1996
- Rennes Court of Appeal, 8 November 2013, no. 11/04329
- TGI Riom, JEX, 23 March 1993
- Arras Court of Appeal, JEX, 9 December 1993
- "Saisie-revendication" - Rémy BOUR - April 2017, Repertoire of civil procedure
- "Saisie-appréhension - Rémy BOUR - December 2015, Répertoire de procédure civile
- "Saisie-apprehension et saisie-revendication des biens meubles corporels" - Catherine Tirvaudey-Bourdin - JurisClasseur Procédure civile - August 2022
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