L'order for payment allows a creditor to quickly obtain a writ of execution without an initial adversarial debate. This procedure, which is effective for recovering debts, may seem unbalanced for the debtor. The legislator has therefore provided an essential mechanism: opposition.
This right restores the procedural balance by allowing the debtor to challenge the order and impose a return to adversarial debate. We take a closer look at this crucial mechanism, which transforms a unilateral procedure into a classic trial.
1. Opposition to the payment order: deadlines and procedures
For a a quick first approach to opposition to an order for paymentSee our dedicated summary.
Time limits vary depending on the method of service
The Code of Civil Procedure distinguishes between two situations in which an objection may be lodged:
- Meaning to person one month from service (art. 1416, para. 1 CPC)
- Non-personal meaning the opposition remains admissible until the expiry of one month following the first document served personally or the first enforcement measure that rendered all or part of the debtor's assets unavailable (art. 1416, para. 2 CPC)
The Court of Cassation has specified that in the case of attachment for payment, "the time limit for lodging an objection, in the absence of personal service of the order, runs from the date of notification of the attachment to the debtor" (Cass., opinion, 16 Sept. 2002, no. 02-00.003).
Form and content of the objection
The opposition is simple:
- By declaration to the registry against receipt
- By registered letter with acknowledgement of receipt
- Or by ordinary letter (Civ. 2e, 1 March 1989, Bull. civ. II, no. 56).
The key point is that the objection does not have to state the reasons on which it is based. This absence of a duty to state reasons constitutes procedural protection for the debtor, who can simply express his refusal to adhere to the injunction procedure.
Who can lodge an objection?
Objections may be lodged :
- The debtor himself
- His representative (art. 1415 CPC)
Article 1415 of the CPC, amended by the Act of 13 December 2011, allows any debtor's representative to lodge an opposition before any court, regardless of the usual rules governing representation. However, the representative must have a special power of attorney.
Case law has specified that an objection lodged by a purported company manager who does not have this status is null and void (Civ. 2e, 18 Nov. 1987, Bull. civ. II, no. 231).
2. Effects of the opposition: switch to ordinary proceedings
A properly filed opposition has a radical effect: it brings before the court "the creditor's initial claim and the entire dispute" (art. 1417 CPC). This is a crucial change, especially when compared with the implications of an unopposed enforceable order. The recent legislative and case law reforms have continued to clarify and modernise this procedure.
Automatic referral to the court
Simply objecting to the payment order triggers the adversarial procedure. The court registry summons the parties to the hearing by registered letter with acknowledgement of receipt (art. 1418 CPC). This summons must be sent to all the parties, even those who have not lodged an objection.
The Court of Cassation has confirmed that "opposition to an injunction to pay, even if irregular, which brings the creditor's initial claim and the entire dispute before the court, interrupts the opposition period" (Civ. 2e, 18 Jan. 2024, no. 21-23.033).
An important feature: opposition and execution in progress
Where the opposition is lodged after the order has been served with the executory clause (which is possible if the order has not been served personally), case law has developed a balanced solution:
"Opposition to an enforceable order to pay does not lead to an order for the release of the seizure-attribution that may have been carried out; it does, however, prevent payment to the creditor of the sums that have become unavailable until a decision is taken on the opposition" (Cass., opinion, 8 March 1996, no. 09-60.002).
This solution reconciles the rights of the creditor and the debtor.
Possible incidents
The debtor may withdraw his opposition. In this case, the creditor has a period of one month in which to apply for the enforcement order (art. 1423 CPC).
If none of the parties appear at the hearing, the court will declare the proceedings terminated, which will render the order for payment null and void (art. 1419 CPC).
3. The hearing following the opposition: back to ordinary law
An ordinary body
The hearing that follows the opposition is governed by the rules of ordinary law applicable before the court seised. The special features of an order for payment no longer apply.
As the Cour de cassation has clarified, "when an opposition is duly lodged, the court is seised of the entire dispute and the judgment replaces the payment order" (Civ. 2e, 19 Sept. 2022, no. 20-18.772).
Burden of proof
Opposition changes the procedural positions: the creditor becomes the plaintiff and the debtor the defendant.
Consequently, the creditor bears the burden of proof (Com. 18 June 1991, no. 88-17.011). He must demonstrate the reality and extent of his claim. The Cour de cassation ruled out any reversal of the burden of proof that might have resulted from the order for payment.
Possible incidental claims
Article 1417 of the CPC provides that the court hears "the initial claim and all incidental claims and defences on the merits".
- Additional requests
- Counterclaims
- Intervention requests
Such claims must fall within the jurisdiction of the court seised.
Substitution judgment
The judgment handed down following the opposition "replaces the order for payment" (art. 1420 CPC). This principle has important consequences:
- An order for payment, which is a decision only in the absence of opposition, cannot resume its effects (Civ. 2e, 23 May 2024, no. 21-25.988)
- The judge cannot confirm an order for payment
- The judge must rule again on all aspects of the dispute
The court may reject the opposition and order the debtor to pay, but this order is based on the judgment itself and not on the initial order.
4. Appeal procedures: a complex system
Appeals against enforceable orders
The order for payment with the executory clause :
- Not subject to appeal (art. 1422, para. 2 CPC)
- Can be the subject of an appeal to the Supreme Court, but only to criticise the conditions for affixing the executory clause (Civ. 2e, 6 Apr. 1987, Bull. civ. II, no. 84)
Case law has progressively restricted the admissible grounds of appeal:
"An appeal in cassation is only admissible to criticise the conditions under which the executory clause was affixed to the order if the opposition is no longer admissible" (Civ. 2e, 2 Apr. 1997, no. 95-16.305).
Appeal against judgment on opposition
The judgment on the objection is subject to ordinary appeal:
- Call possible when the amount of the claim exceeds the final jurisdiction rate (art. 1421 CPC)
- Appeal in cassation open when the judgment is rendered at last instance
Third-party proceedings are also open to third parties affected by the decision. For example, a guarantor may exercise this remedy against an order made against the principal debtor who deliberately did not put forward any defence (Civ. 1re, 10 Dec. 1991, no. 90-12.834).
A practical point to watch: the deposit at the commercial court
There is a special feature before the Commercial Court: article 1425 of the CPC provides that if the opposition is received free of charge by the court clerk, the latter must invite the creditor to deposit the costs of the opposition at the court clerk's office within a period of fifteen days, failing which the application lapses.
This provision, which is sometimes overlooked, can allow a debtor to frustrate proceedings if the creditor fails to deposit the costs within the time limit.
The opposition procedure for injunctions to pay is therefore a genuine mechanism for redressing the balance. However, its effectiveness depends on the debtor's responsiveness and understanding of the procedural issues involved.
The strict deadlines for opposition, the formalities to be complied with and the sometimes irreversible consequences of inaction often justify seeking legal advice as soon as you receive an order for payment. Our law firm can help you accompany you to analyse your situation, lodge an objection if necessary and represent you at the adversarial hearing. Do not hesitate to contact us as soon as you are served with an order.
Sources
- Code of civil procedure, articles 1405 to 1425 (payment order procedure)
- Cass. opinion, Sept. 16, 2002, no. 02-00.003 (time limit for opposition in the event of seizure for payment)
- Civ. 2e, 1 March 1989, Bull. civ. II, no. 56 (form of opposition)
- Civ. 2e, 18 Nov. 1987, Bull. civ. II, no. 231 (nullity of opposition)
- Civ. 2e, 18 Jan. 2024, no. 21-23.033 (interruption of time limit by opposition)
- Cass. opinion, 8 March 1996, no. 09-60.002 (effect of opposition on a seizure)
- Com. 18 June 1991, no. 88-17.011 (burden of proof)
- Civ. 2e, Sep. 19, 2022, no. 20-18.772 (substitution of judgment)
- Civ. 2e, 23 May 2024, no. 21-25.988 (loss of effect of the order)
- Civ. 2e, 6 Apr. 1987, Bull. civ. II, no. 84 (appeal in cassation)
- Civ. 2e, 2 Apr. 1997, no. 95-16.305 (admissibility of appeal)
- Civ. 1st, 10 Dec. 1991, no. 90-12.834 (third party opposition)
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