The "injonction de faire": effectiveness, practice and advice

Is a customer refusing to complete the work you paid for? A seller fails to deliver the item ordered? An injunction could be the solution. It was created in the 1980s to facilitate the performance of contractual obligations, this procedure is still little known. However, it offers a rapid alternative to conventional procedures.

Practical assessment of the restraining order

An under-used procedure

Despite the expectations it raised, the injonction de faire has not been as successful as had been hoped. According to a study by Infostat Justice, the rate of voluntary enforcement of the order stood at 54% in the early 1990s. In practice, applications are rare (Laher, 2020).

Professor Rudy Laher points out in his study that "Despite the expectations it raised, the result was very quickly disparaged".. Some authors have even advocated its abolition, notably Jean-Marie Coulon in his 1997 official report.

Fields of application

Injunctions are particularly suitable for certain types of dispute:

• Delivery of items ordered online
• Return of deposited items
• Issuing contractual documents (rent receipts)
• Carrying out work at home

It has contributed to the increase in proceedings brought by individuals in relation to leases and the provision of services (Pronier, 1993). However, many many practitioners prefer summary proceedings provided for in article 835 of the Code of Civil Procedure.

Advantages and limitations of the procedure

Strengths of the injunction to do

The procedure offers a number of significant advantages:

1. Speed Unlike traditional procedures, it allows you to obtain a court decision without a prior hearing.
2. Economy The procedure is inexpensive, in particular because notifications are made by the registry (art. 1425-5 CPC).
3. Psychological effect The injunction acts as a judicial notice, often encouraging the debtor to comply voluntarily.
4. Flexibility the plaintiff may choose between the court of the place where the defendant resides or the court of the place where the obligation is performed (art. 1425-2 CPC).

Limits and disadvantages

The weaknesses of the procedure partly explain its lack of success:

1. No enforceability In contrast to an injonction de payer, an injonction de faire order can never produce the effects of an adversarial judgment.
2. Limited scope of application Only contractual obligations of less than €10,000 are concerned.
3. The need for precision The nature of the obligation must be very precisely defined in the request.
4. Unfinished business In the event of non-compliance, an adversarial hearing will be required, ultimately lengthening the procedure.

This procedure suffers from "excessive caution" according to Professor Laher, which gives it "a less forceful appearance" than the injunction to pay.

Practical advice for creditors

Writing an effective request

To maximise your chances of success:

• Describe precisely the obligation for which you are seeking enforcement (art. 1425-3 CPC)
• Attach the contract and all relevant documents
• Clearly assess the value of the service (under €10,000)
• Specify the place of execution and the desired deadlines

The lack of a complete description is one of the main reasons why requests are rejected. For a delivery of goods, indicate the place, type and quantity. For work, give a precise description of the nature and location of the work.

Anticipating alternative demands

Always make a subsidiary claim for damages in the event of non-performance (art. 1425-3 CPC). This has two major advantages:

1. Reinforcing the mandatory nature of injunctions
2. Avoid a new trial in the event of non-performance

This request, although optional, should be made systematically. It will be served with the order and will thus comply with the requirements of adversarial proceedings (art. 14 and 15 CPC).

Monitoring and appropriate response

Various situations may arise after notification:

• Voluntary execution If you wish to withdraw the case from the list: inform the court registry to withdraw the case from the list (art. 1425-7 CPC)
• Partial execution : attend the hearing and make specific requests
• Total non-fulfilment appear or be represented at the hearing

If you fail to comply, prepare your arguments for the adversarial hearing. The court will rule on the merits of the case and may impose a penalty.

Remember: if you do not appear at the hearing, the proceedings will be declared null and void (art. 1425-7 CPC).

Developments and outlook

Maintained despite criticism

Despite its weaknesses, the injunction procedure was maintained by the Justice Reform Act of 23 March 2019. It has been expressly entrusted to the judge in charge of protection disputes and to the judicial tribunal.

This persistence can be explained by a "revival of injunctions to enforce" observed over the last twenty years (Zeindenberg, 2001). The recognition of the creditor's right to force performance in kind by the Order of 10 February 2016 has given it new legitimacy.

Possible improvements

1. Enforceability to allow the order to become an enforceable title in the absence of opposition, as is the case for an order to pay
2. Scope of application to extend the procedure to statutory obligations, as is the case for injunctions to pay (art. 1405 CPC)
3. Simplification of procedures The aim is to simplify the formalities of the request and clarify the conditions of application.

This procedure remains an interesting tool for obtaining performance in kind of a contractual obligation to do something. In certain situations, particularly consumer disputes, it can be an effective way of forcing a professional to honour his or her commitments.

The choice of this procedure must be carefully considered. Its success largely depends on the quality of the request and the strategy adopted in the event of non-performance.

Our firm can help you assess your situation and implement the procedure best suited to your case. We offer consultations dedicated to contractual performance issues. Contact us to discuss the feasibility of a restraining order in your particular situation.

Sources

• Laher, R. (2020). Injunction to do. Répertoire de procédure civile, Dalloz.
• Pronier, D. (1993). The magistrate in French society. Economica, p. 95.
• Choppin Haudry de Janvry, S. (1991). L'injonction de faire, bilan d'une réforme. Gazette du Palais, 1991.1, Doctrine 73.
• Zeindenberg, S. (2001). The renewal of injunctions to do. Droit et patrimoine, 11/2001, p. 74.
• Code of Civil Procedure, articles 1425-1 to 1425-9.
• Law no. 2019-222 of 23 March 2019 on programming 2018-2022 and reform for the justice system.
• Order no. 2016-131 of 10 February 2016 reforming contract law.