Is your debtor refusing to fulfil his obligations despite a court order? A penalty payment may be the solution. This legal mechanism makes it possible to exert effective financial pressure to obtain performance of an obligation.
Understanding on-call duty: definition and purpose
The astreinte is a sum of money set by the judge, calculated for each day of delay or each offence recorded, which the debtor must pay if he fails to fulfil the obligation imposed on him.
As article L131-1 of the Code of Civil Enforcement Procedures emphasises: "Any judge may, even of his own motion, order a penalty payment to ensure that his decision is enforced.
The astreinte is designed to "induce the debtor to perform for fear of being crushed under the weight of an indefinitely increasing pecuniary condemnation", in the words of Doyen Carbonnier. It hits the debtor in the wallet to encourage him to act.
Do not confuse an astreinte with damages. The Court of Cassation clearly ruled in its decision of 20 October 1959 that an astreinte is "a measure of constraint entirely distinct from damages" which "is not intended to compensate for the damage caused by the delay".
Origins and development of on-call duty
The astreinte is a praetorian creation. Judges gradually developed it to compensate for the ineffectiveness of article 1142 of the old Civil Code, which provided that any obligation to do something was to be resolved by damages.
Appearing in case law at the beginning of the XIXᵉ century (Civ. 28 Dec. 1824), the astreinte was initially assimilated to damages before becoming detached from them.
The legislator has regulated this practice in several stages:
- The law of 21 July 1949 on evictions
- The Act of 5 July 1972, which introduced the definitive penalty payment (astreinte définitive)
- The Act of 9 July 1991 reforming civil enforcement procedures
Today, the astreinte system is codified in articles L131-1 et seq. of the Code of Civil Enforcement Procedures.
Types of on-call duty
The judge may impose two types of penalty:
Temporary penalty payment
"The amount of the provisional penalty is calculated taking into account the behaviour of the person to whom the injunction has been addressed and the difficulties he has encountered in complying with it" (art. L131-4 of the Code of Civil Enforcement Procedures).
The judge has the power to adjust the astreinte at the time of liquidation. He may reduce or cancel the astreinte if the debtor proves his good faith or the difficulties encountered.
Definitive penalty payment
The rate of the definitive astreinte is set once and for all. It may not be modified at the time of liquidation.
The law strictly regulates this type of astreinte. According to article L131-2 of the Code of Civil Enforcement Procedures, "a definitive astreinte may only be ordered after a provisional astreinte has been pronounced and for a period to be determined by the judge".
Only an extraneous cause (force majeure) can enable the debtor to escape the definitive astreinte in whole or in part.
When should on-call duty be used?
On-call duty is particularly useful in a number of situations:
- Obligations to do or not to do : restoring a site, carrying out work, stopping unfair competition, etc.
- Issuing documents employment certificate, Pôle emploi certificate, accounting documents, etc.
- Employment law reinstatement of a dismissed employee
- Personal law Access to and accommodation of a child
- Construction relocation of structures, demolition in the event of encroachment, etc.
In its ruling of 8 April 2004 (Civ. 2e, no. 02-15.144), the Court of Cassation reiterated that "the fine attached to a summary order can only begin to run from the time the decision is served".
There are certain limits to on-call duty:
- Artistic creation (the painter cannot be forced to do so)
- Medical examination (no-one can be forced to undergo a physical examination)
- Obligations impossible to fulfil
Here's a concrete example: a property developer refuses to disclose the delivery date of a flat sold as a VEFA. The judge can order the developer to provide this information, subject to a penalty of €100 per day's delay. If the developer complies after 30 days, he will have to pay €3,000, which is a strong incentive to comply with his obligation.
In certain complex cases, the expertise of a lawyer is essential in determining the strategy to adopt. Our firm regularly assists creditors in setting up effective astreintes tailored to their specific situation. The astreinte is a powerful tool, but its use requires a precise knowledge of the legislation and case law.
Sources
- Code of civil enforcement procedures, articles L131-1 to L131-4
- Court of Cassation, Civil Division 1, 20 October 1959
- Court of Cassation, Civil Division 2, 8 April 2004, no. 02-15.144
- Court of Cassation, Civil Division 2, 8 December 2005, no. 04-12.643
- Répertoire de procédure civile Dalloz, "Astreinte", by Frédéric GUERCHOUN, 2021
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