Enforceable titles in French law: a practical guide

When a debtor refuses to pay, the creditor is often at a loss. Without a writ of execution, it is impossible to initiate enforcement proceedings. Every week, our firm receives clients who discover this reality after several months of unsuccessful reminders.

What is a writ of execution?

An enforcement order is the key to compelling a debtor to perform. Article L. 111-3 of the French Code of Civil Enforcement Procedures (CPCE) sets out a restrictive list. This official document allows the creditor to use public force to obtain payment.

It is only with this precious document that a bailiff (who became a commissioner of justice in July 2022) can seize a bank account, salary, movable or immovable property.

Court decisions as enforceable titles

Judgments are the best-known category of enforceable titles. Article L. 111-3, 1° of the CPCE refers to "decisions of the judicial or administrative courts".

Beware of the conditions for effectiveness: to be enforceable, the judgment must:

• Be notified to the opposing party
• Have acquired the force of res judicata (or benefit from provisional enforcement)
• Be signed by the executor

Since 2020, first instance judgments have been enforceable by operation of law. Appeals no longer have suspensive effect (article 514 of the Code of Civil Procedure). This is a major change that many litigants are unaware of.

The Court of Cassation has clarified that without an executory clause, the judgment is unenforceable (Civ. 2e, 1 July 1992, no. 91-11.434).

Notarial deeds and their enforceability

Less well known but just as effective, notarised deeds are enforceable instruments of the first order. Their enforceability is enshrined in article 19 of the law of 25 ventôse an XI.

A deed of sale, a notarised loan or an acknowledgement of debt signed by a notary avoids the need to go to court in the event of unpaid bills.

There are limits. The notarial deed:

• Must bear the executory clause
• Does not allow certain procedures such as eviction (article L. 411-1 of the CPCE)
• Can be contested more easily than a judgement

The enforceable copy (or "grosse") of the notarial deed, issued by the notary to the creditor, is the document that will be used for recovery purposes.

Securities issued by commissaires de justice

Since 2022, bailiffs have become judicial commissioners. They can issue two types of enforcement order:

1. Certificate of non-payment of a cheque After two unsuccessful presentations of a cheque, the bearer may obtain a certificate of non-payment which, after notification and a 15-day period, becomes a writ of execution (article L. 131-73 of the French Monetary and Financial Code).
2. For contractual claims of less than €5,000, the court commissioner may propose an amicable procedure. If the debtor accepts, the agreement becomes an enforceable title (article L. 125-1 of the CPCE).

These deeds have a special status. The Court of Cassation has specified that they "do not constitute a court decision" (Civ. 2e, 7 Jan. 2016, no. 14-26.449), which limits some of their effects.

Securities issued by legal entities governed by public law

The administration has the privilege of prior authorisation: it can issue enforceable titles without going to court.

These titles include:

• Tax assessment notices
• Revenue orders issued by local authorities
• Constraints imposed by social security bodies

These orders are enforceable as soon as the debtor has been duly notified. To contest them, the taxpayer must comply with strict procedures: prior administrative appeal and then referral to the competent court.

Article L. 111-3, 6° of the CPCE expressly mentions "licences issued by legal entities governed by public law and qualified as such by law".

New enforceable titles

The legislator has created new enforceable titles to relieve congestion in the courts.

Agreements approved by the judge

Settlements, mediations, conciliations and agreements resulting from a participative procedure and approved by the judge are enforceable (article L. 111-3, 1° of the CPCE).

Agreements made enforceable by the registry

Major innovation: since the law of 22 December 2021 on confidence in the judicial system, transactions and agreements countersigned by lawyers can be made enforceable by the court registry without the need for a judge to intervene (article L. 111-3, 7° of the CPCE and articles 1568 to 1571 of the CPC).

Divorce by mutual consent by legal document

Since 2017, the divorce agreement filed with a notary constitutes a writ of execution (article L. 111-3, 4° bis of the CPCE).

The hierarchy of enforceable titles

Not all enforceable titles have the same force. There is a hierarchy:

1. Court rulings have the force of res judicata
2. Notarial deeds are easier to challenge
3. Administrative titles can be challenged before the administrative judge

The Cour de cassation has confirmed this hierarchy by recognising the interest of a creditor already in possession of a notarial deed in obtaining a judgment (Civ. 2e, 18 Feb 2016, no. 15-13.945).

For court decisions, the limitation period is 10 years (article L. 111-4 of the CPCE), while other titles are subject to the ordinary law limitation period (5 years).

The originality of the French system lies in this diversity of enforceable titles, offering several ways of obtaining a title.

In some situations, such as undocumented debts, going to court is unavoidable. In other cases, the creditor can choose between several options.

Our lawyers can work with you to determine the best way to obtain an enforceable title tailored to your situation. Personalised advice is often decisive in avoiding procedural errors and speeding up recovery. Do not hesitate to contact us for an initial assessment of your case.

Sources

• Code of civil enforcement procedures: articles L. 111-1 to L. 111-5, L. 125-1
• Code of civil procedure: articles 502, 503, 504, 514, 1568 to 1571
• Law of 25 Ventôse An XI containing the organisation of the notarial profession, article 19
• Monetary and Financial Code: Article L. 131-73
• Civ. 2e, 1 July 1992, no. 91-11.434, Bull. civ. II, no. 194
• Civ. 2e, 7 Jan. 2016, no. 14-26.449, D. 2016. 124
• Civ. 2e, 18 Feb. 2016, no. 15-13.945, D. 2016. 1279
• Law no. 2021-1729 of 22 December 2021 on confidence in the judiciary