Has your supplier failed to deliver the furniture you promised? Has a craftsman abandoned your work? French law offers an effective procedure for forcing them to perform without a conventional trial: theinjunction to do. This procedure makes it possible to quickly enjoin a debtor to fulfil his obligation. However, its precise conditions must be respected.
1. Conditions relating to the bond concerned
An obligation only to do
The very nature of the procedure confirms this: only obligations to do can be the subject of an injunction to do. As article 1425-1 of the Code of Civil Procedure explains, the procedure only concerns "the performance in kind of an obligation", and more specifically of a "service".
In practical terms, this means :
- Delivery of an item ordered
- Returning an item on deposit
- Carrying out work at home
- Issuing contractual documents
The following are explicitly excluded:
- Obligations to donate
- Obligations not to do
- Obligations to pay a sum of money (which come under the heading of injunctions to pay)
Mandatory contractual origin
The obligation must "arise out of a contract". Thus, any obligation arising from a quasi-contract, a tort, a quasi-delict or the law alone cannot be the subject of an injunction.
A ruling by the Toulouse Court of Appeal on 3 September 2001 clearly ruled out claims arising from accidents or deliberate damage.
But beware of nuances. Certain obligations of legal origin but linked to a contract may be accepted. For example, the landlord's obligation to provide decent accommodation (article 6 of the Act of 6 July 1989) was ruled admissible by the Amiens Court of Appeal on 3 April 2012.
2. Economic conditions
The €10,000 ceiling still in force
Despite the reform of the organisation of the judiciary that came into force on 1 January 2020, the ceiling of €10,000 remains applicable. Article 1425-1 of the Code of Civil Procedure, by referring to article 817 and then article 761, maintains this threshold.
The assessment of the service is a condition of admissibility. It cannot be circumvented by an extension of jurisdiction.
Assessment: a delicate exercise
The claimant must establish at the outset that "the value of the subject matter of the obligation" does not exceed €10,000. This assessment is generally made in relation to the contract itself:
- Selling price of the item to be delivered
- Cost of the agreed service
A ruling by the Paris Court of Appeal on 10 April 1990 confirmed that, in the absence of documentary evidence to verify the value of the obligation, rejection of the claim is inevitable.
However, the Code of Civil Procedure does not require the claim to be quantified exactly. For example, on 20 December 2000, the Paris Court of Appeal accepted that a request for the removal of objects stored in front of a window falls within the scope of the proceedings even if its value is not precisely determined.
3. Conditions relating to performance
Performance in kind, the sole purpose
Article 1425-1 of the Code of Civil Procedure is clear: only specific performance may be ordered. The creditor cannot seek damages or termination of the contract by this means.
The only exception: the claimant may specify in his application the amount of damages that he would claim in the event of non-performance (article 1425-3 of the Code of Civil Procedure).
Formal notice: recommended but not compulsory
Article 1221 of the Civil Code provides that "the creditor of an obligation may, after formal notice, pursue its performance in kind". However, from a procedural point of view, this prior formal notice is not a condition for the admissibility of an injonction de faire.
However, it is still strongly recommended as it demonstrates the creditor's good faith and strengthens the case for the creditor's claim.
Limits to compulsory execution
Even if there is an obligation to do, specific performance may be excluded in two specific cases under Article 1221 of the Civil Code:
- Impossibility of performance
- Material impossibility (disappearance of the object)
- Legal impossibility (transfer to a bona fide third party)
- Moral impossibility (infringement of individual freedoms)
- Manifest disproportionality
- Between the cost to the debtor in good faith
- And the interest for the creditor
This last limit, introduced by the Order of 10 February 2016 reforming contract law, is rarely applicable in practice in the context of injunctions to perform.
4. Conditions relating to the parties
A non-commercial obligation
Article 1425-1 of the Code of Civil Procedure specifies that the injunction only concerns obligations arising from a contract "concluded between persons who are not all merchants".
Contracts between traders acting in the course of their business are therefore excluded. Such disputes are dealt with by the Commercial Court.
However, the procedure remains accessible:
- Between two non-traders
- Between a trader and a non-trader (mixed contract)
- For a trader contracting outside his professional activity
This distinction is explained by the very nature of the procedure, initially designed to protect consumers against professionals.
It should be noted that a trader who contracts outside his professional activity is considered to be a consumer and can therefore benefit from this procedure.
The conditions of application of the injunction to perform may seem numerous and technical. Failure to do so often results in the application being rejected, even before the judge has considered the merits of the claim. A prior legal analysis is often necessary to determine whether this procedure is suitable for your situation and whether it is appropriate for you. maximise your chances of success.
Our firm regularly assists clients in these proceedings and can help you determine whether your dispute meets the criteria set out. Contact us for a personalised analysis of your case.
Sources
- Code of civil procedure, articles 1425-1 to 1425-9
- Civil Code, article 1221 (from order no. 2016-131 of 10 February 2016)
- Toulouse Court of Appeal, 3 September 2001, RG n°2001/01504
- Amiens Court of Appeal, 3 April 2012, RG n°11/00778
- Paris Court of Appeal, 10 April 1990, JurisData n°1990-023092
- Paris Court of Appeal, 20 December 2000, JurisData n°138734
- LAHER Rudy, "Injonction de faire", Répertoire de procédure civile, Dalloz, 2020
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