Winning your case in court is not enough. The decisive factor in transforming a judgement into an enforcement tool is the executory clause. This legal "sesame", affixed to court rulings, requires the public authorities to assist in enforcement.
The content of the executory clause
The executory formula has remained unchanged since decree no. 47-1047 of 12 June 1947. This text imposes a precise structure:
- A heading: "French Republic. In the name of the French people".
- A conclusion: "Consequently, the French Republic instructs and orders all bailiffs, if required, to enforce the said ruling (or the said judgement, etc.), the public prosecutors of the Republic in the judicial courts to take action, and all commanders and officers of the police force to lend a hand when they are legally required to do so. In witness whereof, this ruling (or judgement, etc.) has been signed by...".
This formula applies not only to judgements, but also to notarial deeds - which explains why the latter are enforceable.
The importance of this wording was confirmed by the Cour de cassation in a ruling dated 6 February 2025 (Civ. 2e, no. 22-18.527), which recalled that its absence constitutes an irregularity liable to annulment.
Prior notification as a prerequisite
According to Article 503 of the Code of Civil Procedure: ". Judgments can only be enforced against those against whom they are sought after they have been served, unless enforcement is voluntary." .
This notification is a legal obligation, even in cases where the debtor has already been informed of the judgment. The Court of Cassation has rigorously upheld this requirement (Civ. 2e, 20 May 2021, no. 19-21.994).
Service is generally made by bailiff. For contentious judgements, this rule is strict. There are, however, exceptions for certain decisions, such as those relating to non-contentious matters, where notification is made by registered letter with acknowledgement of receipt.
Note: the parties must be notified even if they are represented by a lawyer. In this case, the representative must be notified before the party (C. pr. civ., art. 678).
The indispensable force of res judicata
A judgment must also have acquired the force of res judicata in order to be enforced. Article 500 of the Code of Civil Procedure defines this concept:
The judgment acquires the force of res judicata when it is not subject to an appeal suspending enforcement or, if it is subject to such an appeal, on expiry of the time limit for the appeal if it has not been exercised.
However, this rule has undergone a major change since the 2020 reform. First instance decisions are now enforceable by operation of law on a provisional basis (C. pr. civ., art. 514), unless otherwise provided.
In practice, this means that a judgment can be enforced despite an appeal. However, the judge retains the option of setting aside provisional enforcement if he considers it incompatible with the nature of the case.
Pragmatic exceptions
The legislator has made several adjustments to these principles:
- Orders for interim relief and on application are enforceable on the original (C. pr. civ., art. 489 and 495).
- Voluntary enforcement by the debtor dispenses with notification
- Some enforcement procedures do not require the presentation of an enforceable copy (such as attachment for payment).
In a judgment of 1 February 2018 (Civ. 2e, no. 16-25.097), the Supreme Court clarified that the absence of the notary's seal on a notarial deed does not deprive it of its enforceability.
In addition, irregularities in the executory clause constitute formal defects that can only be declared null and void if the person relying on them proves a grievance (Civ. 2e, 6 Feb. 2025, no. 22-18.527).
Consequences of irregular performance
Proceeding with enforcement without complying with these conditions may result in penalties. As the Court of Cassation has pointed out (Civ. 2e, 21 Dec. 2006, no. 05-19.679), an enforcement measure carried out without prior notification will be annulled.
Similarly, the absence of an enforcement order may justify the bailiff's refusal to enforce the judgment (Civ. 2e, 1 July 1992, no. 91-11.434). This failure even engages his professional liability.
For judgments that are not final, the Code of Civil Enforcement Procedures specifies that they may be enforced until their term under a provisional writ of execution (C. pr. exéc., art. L. 111-10), except for forced sales in real estate matters.
Essential checks for creditors
Checking the enforcement order requires particular attention:
- Ensure that the executory clause is complete
- Check that the debtor has been duly notified
- Checking whether res judicata (or provisional enforcement) has been obtained
- Ensure that the claim is certain, liquid and due (C. pr. exéc., art. L. 111-2)
To prove the enforceability of a judgment, the creditor may obtain a certificate from the court registry stating that no appeal has been lodged (C. pr. civ., art. 505).
The statute of limitations is another point to watch out for. Since the Act of 17 June 2008, enforcement of court orders is subject to a ten-year limitation period (C. pr. exéc., art. L. 111-4), which runs from the date on which the judgment becomes enforceable (Civ. 2e, 5 Oct. 2023, no. 20-23.523).
Exercising the right to enforcement involves technical subtleties that can compromise the effective recovery of debts. Our firm offers an audit of your enforceable titles to identify procedural vulnerabilities and secure your enforcement efforts. Contact us for a personalised analysis.
Sources
- Code of civil enforcement procedures, articles L. 111-2, L. 111-4, L. 111-10
- Code of Civil Procedure, articles 500, 503, 505, 514, 678
- Decree no. 47-1047 of 12 June 1947 on the executory formula
- Civ. 2e, 6 Feb. 2025, no. 22-18.527
- Civ. 2e, 20 May 2021, no. 19-21.994
- Civ. 2e, 1 Feb 2018, no. 16-25.097
- Civ. 2e, Dec. 21, 2006, no. 05-19.679
- Civ. 2e, 1 July 1992, no. 91-11.434
- Civ. 2e, 5 Oct. 2023, no. 20-23.523
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