When you are faced with a contractor who refuses to perform an obligation (delivery of goods, completion of work, provision of a service), the injunction procedure offers an alternative to the traditional channels. This procedure, which is less well known than its cousin the injunction to pay, nevertheless deserves the attention of any creditor of an unfulfilled obligation.
1. The non-adversarial phase: launching the procedure
Filing the application
The procedure begins with the filing of an application with the registry of the competent court. Under article 1425-3 of the Code of Civil Procedure, the application may be "filed with or addressed to the court registry by the beneficiary of the obligation". The claimant may be represented by a lawyer, his or her spouse, his or her parents or relatives up to the third degree, or by persons attached to his or her personal service or business.
Local authorities and the State may appoint a civil servant to represent them, in accordance with article 761 of the Code of Civil Procedure.
Content and compulsory information
The application must contain, on pain of invalidity :
- Indication of the court seised
- The precise purpose of the request
- The applicant's full contact details
- The defendant's contact details
Article 1425-3 of the Code of Civil Procedure also requires that the nature of the obligation being pursued and its contractual basis be stated "precisely". This precision is not optional: the judge will reject any imprecise request.
For example, for kitchen work, mention the location where the work will be carried out, describe the furniture and reference the household appliances planned.
Subsidiary damages
As an innovation of Decree no. 2004-836 of 20 August 2004, the application may now mention "the damages and interest claimed in the event of failure to comply with the injunction". This is optional but strategic. It reinforces the binding nature of the injunction and avoids a second trial.
Supporting documents
The application must be accompanied by supporting documents. These documents enable the judge to assess the merits of the claim and verify the value of the benefit. Although they do not necessarily constitute "evidence" in the legal sense, these documents must be conclusive.
In practice, the lack of sufficient documentation is one of the main reasons for rejection.
2. The judge's order: a prima facie examination
Criteria for assessment by the judge
The judge examines the application "in the light of the documents produced". He checks that :
- The obligation arises from a contract
- Not all parties are merchants
- The value of the service does not exceed €10,000
- The request appears to be well-founded
This assessment remains cursory, with the judge simply "checking appearances" (to use Professor Perrot's expression).
Delivery of the injunction
If the application appears to be well-founded, the judge will issue an order setting out "the subject matter of the obligation and the time limit and conditions under which it must be performed" (art. 1425-4 CPC).
The order also mentions the place, day and time of the hearing at which the case will be considered, unless the applicant informs the court registry of the enforcement of the obligation.
This order is neither res judicata nor enforceable. It is akin to a "sui generis summons to appear", as V. Christianos puts it.
Application rejected
The court may reject the application if it considers it to be ill-founded or insufficiently documented. In this case, the documents are immediately returned to the applicant by the court registry (art. 1425-9 CPC).
The dismissal order does not have to be reasoned and is not res judicata. The claimant remains free to take action through the ordinary legal channels.
No appeal against the order
Article 1425-4 of the Code of Civil Procedure states that the order, whether it grants the injunction or rejects the application, is "not subject to appeal".
This particularity is explained by the very nature of the injonction de faire which, lacking enforceability, necessarily opens the door to a subsequent phase.
3. The adversarial phase: restoring debate
Notification of the order
Article 1425-5 of the Code of Civil Procedure requires the court registry to notify the parties of the order "by registered letter with acknowledgement of receipt".
If the notice of receipt is not signed by the addressee or his agent, the applicant must serve the document, in accordance with article 670-1 of the Code of Civil Procedure.
Voluntary enforcement by the debtor
The psychological effect of the order should not be underestimated. In 1992, a study by InfoStat Justice revealed a voluntary compliance rate of 54% following notification of the order.
In this case, the claimant must inform the court registry and the case is "withdrawn from the list" (art. 1425-7 CPC). This information is vital, as otherwise the proceedings will be declared null and void if the claimant fails to attend the hearing.
Consequences of non-performance
In the event of non-compliance, the claimant must appear at the scheduled hearing. If he fails to appear "without a legitimate reason, the court shall declare the injunction proceedings null and void" (art. 1425-7 CPC).
This lapse may be revoked if the applicant informs the court registry, within a period of fifteen days, of the legitimate reason that he could not have invoked in good time.
Appearance at the hearing
Representation by a lawyer is not mandatory at the hearing. The parties may appear in person or be represented in accordance with article 762 of the Code of Civil Procedure.
The procedure is oral and requests may change, subject to compliance with the adversarial principle.
4. The judgment and appeals: the procedural outcome
Attempt at conciliation
Before making any decision, article 1425-8 of the Code of Civil Procedure requires the judge to attempt to "reconcile the parties". This conciliation may result in a report that will be enforceable without having the force of res judicata.
Decision on the merits
Failing conciliation, the judge will rule on the merits of the case. Since the Order of 10 February 2016, the judge may order performance in kind of the obligation, unless this is impossible or the cost is manifestly disproportionate to the benefit (art. 1221 of the Civil Code).
Judgments may be rendered in contradictory, deemed contradictory or default proceedings, in accordance with the standard rules of the Code of Civil Procedure.
On-call duty
The judge may attach a provisional penalty to his decision. Unlike the penalty that might have accompanied the initial order, this penalty is genuinely effective.
In the event of non-performance, the creditor may refer the matter to the enforcement judge for liquidation, in accordance with article L. 131-2 of the Code of Civil Enforcement Procedures.
Ordinary and extraordinary remedies
The judgement is subject to the ordinary means of appeal: opposition for judgements rendered by default, appeal for judgements rendered on appeal.
Appeals may be lodged where the claim exceeds €5,000 (art. R. 211-3-24 of the Code de l'organisation judiciaire). In the case of claims for specific performance, the case law considers that they constitute "in themselves" undetermined claims (Civ. 2e, 6 June 2013, no. 12-20.062).
Extraordinary remedies (third-party proceedings, applications for judicial review, appeals to the Supreme Court) are also available under the conditions of ordinary law.
Despite its potential, the injunction to perform remains underused. To take full advantage of this procedure, a legal assistance is often essentialThis is particularly important when drafting the application and preparing the supporting documents. Expert advice can make the difference between an early rejection and a quick turnaround.
Sources
- Code of civil procedure, articles 1425-1 to 1425-9
- Civil Code, article 1221 (from order no. 2016-131 of 10 February 2016)
- Code of Civil Enforcement Procedures, article L. 131-2
- Decree no. 88-209 of 4 March 1988 introducing the injunction to do procedure
- Decree no. 2004-836 of 20 August 2004 amending article 1425-3 of the CPC (French Civil Code)
- Decree no. 2019-1333 of 11 December 2019 amending the articles relating to the competent courts
- LAHER Rudy, Injunction to doRépertoire de procédure civile, Dalloz, December 2020
- MUNOZ PEREZ B. et alii, " L'injonction de faire : une procédure peu utilisée ", Infostat Justice, February-March 1992, n°28
- CHRISTIANOS V., "Injonction de faire et protection judiciaire du consommateur", D. 1990, Chron. 91
- Civ. 2e, 6 June 2013, n°12-20.062, D. 2013, Actu. 1486
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