The effects of provisional enforcement during appeal or opposition proceedings

L'provisional enforcementThis derogation from the principle of the suspensive effect of ordinary legal remedies allows a creditor to pursue the immediate enforcement of a court decision despite an appeal or opposition. But what are its practical effects? When do they take effect? How do they affect the parties to the dispute?

When provisional enforcement takes effect

Provisional enforcement is only useful if the suspensive remedy (appeal or opposition) is actually exercised. Otherwise, the decision becomes res judicata and enforcement becomes final. The effects of provisional enforcement therefore apply only during the appeal or objection proceedings.

Article L. 111-10 of the Code des procédures civiles d'exécution (French Code of Civil Enforcement Procedures) states that "forced execution may be pursued to term by virtue of a provisional writ of execution". In practical terms, the creditor benefits from a immediate writ of executionThis will enable it to take the necessary enforcement measures to recover its debt.

Conditions for recourse to compulsory execution

Objective conditions

1. The judgment must be provisionally enforced (by operation of law or by the court)
2. Prior notification of the judgment to the debtor is mandatory (article 503 of the Code of Civil Procedure).
3. If provisional enforcement has been made conditional on the provision of a guarantee, the guarantee must have been provided

The Court of Cassation reiterated the importance of prior notification in a ruling dated 14 September 2006 (Civ. 2e, no. 04-20.602), censuring judges who had ordered a husband to pay damages for disturbance of use of the family home even though he had not been notified of the non-conciliation order allocating it to him.

Subjective conditions

On the debtor's side, voluntary enforcement remains possible but requires great caution. Article 410, paragraph 2 of the Code of Civil Procedure states that unconditional enforcement of a judgment that is not enforceable constitutes acquiescence. The debtor must therefore ensure that he voluntarily enforces only those parts of the judgment that are provisionally enforceable.

As for the creditor, recourse to compulsory execution is at his discretion. He is not liable if he refrains from pursuing compulsory execution (Civ. 3e, 4 June 2008, no. 07-14.118).

Advantages and limitations for the creditor

Benefits under ordinary law

• The increase in statutory interest (article L. 313-3 of the French Monetary and Financial Code)
• Access to all civil enforcement procedures
• The right to use all available precautionary measures

The Court of Cassation confirmed that this forced execution was compatible with the fair trial requirements of Article 6 § 1 of the European Convention on Human Rights (Civ. 2e, 10 February 2005, no. 03-15.067).

Specific limits

1. In the case of seizure of property, article L. 311-4 of the Code of Civil Enforcement Procedures states that "where proceedings have been commenced by virtue of a decision that has been provisionally enforced, the forced sale may only take place after a final decision that has become res judicata".
2. For the cancellation of mortgages, article 2440 of the Civil Code only authorises the cancellation of a mortgage registration by virtue of a final or res judicata judgment.
3. Enforcement is always pursued at the creditor's own risk (article L. 111-10, paragraph 2 of the Code of Civil Enforcement Procedures).

This last limitation is fundamental. Unlike final enforcement, provisional enforcement engages the creditor's liability even in the absence of fault. The Assemblée plénière of the Cour de cassation confirmed this on 24 February 2006 (no. 05-12.679), ruling that this liability applies even in the event of spontaneous enforcement by the debtor after simple notification. However, for protect its interestsThe debtor may, under certain conditions, request that thesuspension or adjustment of provisional enforcement.

Cancellation of the appeal for lack of execution

Article 524 of the Code of Civil Procedure (formerly article 526) offers the creditor a formidable weapon: the striking out of the appeal lodged by the debtor who fails to comply with the decision of the court of first instance.

Under this procedure, the creditor can ask the first president of the court of appeal or the Conseiller de la Mise en Condition to strike the case off the roll. To avoid having the case struck off the roll, the debtor must provide proof:

• To have executed the decision
• Or show that performance would entail manifestly excessive consequences
• Or prove that it is impossible for him to perform

Removal from the register is only a reason for suspending the appeal proceedings, but it can lead to the definitive extinction of the proceedings through the lapse of time (two-year time limit).

The Court of Cassation was divided on this issue for a long time, but a decision on 18 June 2009 (Civ. 2e, no. 08-15.424) ruled that a decision to strike off a company's name was a measure of judicial administration that could not be appealed.

Consequences at the end of the proceedings

In the event of confirmation

If the judgment is confirmed on appeal or opposition, final enforcement replaces provisional enforcement. Confirmation is retroactive to the date of the contested judgment (Civ. 2e, 13 July 2006, no. 04-20.690).

The creditor retains the benefit of the enforcement initially pursued and any guarantees he may have had to provide are lifted.

In the event of cancellation or withdrawal

Article L. 111-10, paragraph 2 of the Code of Civil Enforcement Procedures provides that "the creditor [...] shall restore the debtor's rights in kind or by equivalent if the title is subsequently amended".

Two types of obligations arise for the creditor:

1. Return obligation

The creditor must return to the debtor everything he has received in execution of the judgment. This restitution is made without it being necessary for the decision to set aside or revoke the judgment to expressly order it.

The case law considers that the reversal decision constitutes a writ of execution enabling restitution to be pursued directly (Civ. 2e, 10 July 2008, no. 07-16.802).

2. Obligation to repair

The creditor must compensate the prejudice suffered by the debtor solely as a result of enforcement, without any fault being required (Civ. 3e, 2 July 1974, no. 73-20.046).

This no-fault liability fundamentally distinguishes provisional enforcement from final enforcement.

The enforcement judge has jurisdiction to rule on these repairs under article L. 213-6, paragraph 4 of the Code de l'organisation judiciaire.

Provisional enforcement is a powerful but double-edged tool. In practice, a creditor benefiting from a provisional enforcement order must weigh the immediate advantages against the risks of restitution and reparation in the event of reversal.

The financial stakes are often considerable. In a recent case brought before our firm, a creditor who had pursued provisional enforcement of a €150,000 judgment was ordered, after the judgment was overturned, not only to repay this sum but also to pay €35,000 in damages corresponding to the costs incurred by the debtor in taking out a loan and the losses suffered.

Are you wondering whether you should go ahead with the enforcement of a provisionally enforceable judgment or whether, on the contrary, you should contest the provisional enforcement enjoyed by your opponent? Do not hesitate to contact us for a personalised analysis of your situation.

Sources

• Code of Civil Enforcement Procedures, article L. 111-10
• Code of Civil Procedure, articles 410, 503, 524
• Civil Code, article 2440
• Monetary and Financial Code, article L. 313-3
• Court of Cassation, 2nd Civil Chamber, 14 September 2006, no. 04-20.602
• Court of Cassation, 3rd Civil Chamber, 4 June 2008, no. 07-14.118
• Court of Cassation, 2nd Civil Division, 10 February 2005, no. 03-15.067
• Court of Cassation, Plenary Session, 24 February 2006, no. 05-12.679
• Court of Cassation, 2nd Civil Division, 18 June 2009, no. 08-15.424
• Court of Cassation, 2nd Civil Chamber, 13 July 2006, no. 04-20.690
• Court of Cassation, 2nd Civil Chamber, 10 July 2008, no. 07-16.802
• Court of Cassation, 3rd Civil Chamber, 2 July 1974, no. 73-20.046
• HOONAKKER Ph., "L'exécution provisoire de droit enfin consacrée par le législateur", Dalloz 2004, Chronique 2314