In the French legal arsenal, theinjunction to do remains unfamiliar to non-lawyers. Yet this simplified procedure can force a co-contractor to perform when he is reluctant to fulfil his obligations. But how can it be distinguished from other similar procedures? When should it be used rather than an injunction to pay, a summary procedure or other alternatives?
Injonction de faire vs injonction de payer
Structural commonalities
The two procedures share a similar architecture, as Professor Laher points out: they combine a non-adversarial phase followed by an adversarial phase (art. 1425-1 et seq. of the Code of Civil Procedure). This structure creates what legal scholars refer to as an "inversion of litigation" - the judge orders first, then the parties debate if necessary.
Both procedures are designed to speed up the resolution of simple disputes. They make it possible to obtain a decision quickly without having to go through a traditional, longer procedure.
Fundamental differences
The essential difference lies in the purpose of the request:
- Injunctions to pay only concern pecuniary claims
- The injunction to do is aimed at the performance in kind of a contractual obligation to do something.
There is also a gulf between their effectiveness. An uncontested order for payment becomes enforceable. Conversely, an order for performance never has "the effects of a contradictory judgment", even if it is enforced voluntarily (art. 1425-4 of the CPC).
Territorial jurisdiction also differs. Whereas an order for payment is the exclusive responsibility of the court "of the place where the debtor resides" (art. 1406 CPC), the injunction to do gives the plaintiff an optionwho may bring the matter before the court for the place where the obligation is performed (art. 1425-2 CPC).
Impact of dematerialisation
Act no. 2019-222 of 23 March 2019 further widened the gap between these two procedures by creating a national dematerialised procedure for payment orders. The injonction de faire, on the other hand, remains rooted in a traditional paper-based formalism.
Injonction de faire vs injonction de délivrer ou de restituer
Separate application frameworks
These procedures target different obligations. An injunction to deliver or return (art. R. 222-11 of the Code of Civil Enforcement Procedures) concerns only the delivery of a specific item of movable property. The injonction de faire covers a wider range of contractual obligations.
Major procedural discrepancies
The biggest difference lies in their effects. An injunction to deliver/restitute enables an enforceable title to be obtained if the debtor does not lodge an opposition, authorising seizure and attachment without prior summons if undertaken less than two months after the enforceable title is issued (art. R. 222-16 CPCE). An injunction never offers this possibility.
An injunction to deliver is the responsibility of the enforcement judge, while an injunction to do is the responsibility of the protection judge or the court, depending on the case (art. 1425-1 CPC).
Injonction de faire vs référé
Summary proceedings, a historic alternative
Before the creation of the injonction de faire in 1988, the legislator had initially favoured the summary proceedings procedure for obligations to perform. Decree no. 85-1330 of 17 December 1985 adapted the texts to allow for what is sometimes referred to as a "summary injunction".
Overlapping zones
Both procedures are aimed at the rapid performance of obligations. Like injunctions, summary proceedings can order the performance in kind of a contractual obligation. It is particularly useful when the obligation is "not seriously contestable" (art. 835 CPC).
Tactical choice between procedures
In practice, many practitioners prefer to use summary proceedings. despite the existence of the injunction to do so. Why is this? Summary proceedings offer an adversarial procedure from the outset, which avoids the hazards of the injonction de faire where the judge can reject the initial application without debate.
There is a wealth of case law and well-established practice in this area. Interim orders are enforceable by operation of law, unlike injunctions to perform, which are not enforceable.
When should you choose an injonction de faire rather than a référé? It can be simpler and less costly for simple contractual obligations where the value does not exceed €10,000.
Other forms of injunction in the legal landscape
Injunctions in company law
Company law has its own mechanisms for issuing injunctions (art. L. 238-1 et seq. of the Commercial Code). But be careful not to confuse the two: these injunctions do not provide for any reversal mechanism comparable to that of the injunction to act in the Code of Civil Procedure.
Administrative injunctions
In administrative litigation, injunctions have developed significantly. The decision CE 1 March 2012, Société assistance conseil informatique professionnelle, was even hailed as offering "a relevant and effective means [...] to compel the Administration's co-contractor to perform."
A renewal of injunctions?
Some authors, such as S. Zeindenberg, refer to a "revival of injunctions to perform" over the last twenty years or so. The explicit recognition by the Order of 10 February 2016 of the creditor's right to pursue performance in kind (art. 1221 of the Civil Code) has strengthened the legitimacy of these procedures.
Despite this renewed interest in theory, the injonction de faire remains little used in practice compared with the injonction de payer or the référé. However, its retention in the 2019 reform shows that the legislature continues to see it as a useful tool in the French procedural system.
One thing is clear: each procedure has its own field of expertise. For the obligation to deal with a recalcitrant debtor, the expertise of a lawyer enables you to identify the procedural route best suited to your specific situation.
Sources
- Code of civil procedure, articles 1425-1 to 1425-9 (injonction de faire)
- Code of civil procedure, articles 1405 to 1425 (payment order)
- Code des procédures civiles d'exécution, articles R. 222-11 et seq (injunction to deliver or return)
- Law no. 2019-222 of 23 March 2019 on programming 2018-2022 and reform for the justice system
- LAHER R., "Injonction de faire", Répertoire de procédure civile, December 2020, Dalloz
- ZEINDENBERG S., "Le renouveau des injonctions de faire", Dr. et patr, November 2001, p. 74
- CE, 1 March 2012, Société assistance conseil informatique professionnelle, req. no. 354628
- PERROT R., "L'inversion du contentieux", in Justice et droits fondamentaux, Études offertes à Jacques Normand, 2003, Litec, p. 387.
EN 
FR