La payment order procedure often remains mysterious until its final stage: the signing of the executory clause. This is when a simple piece of paper becomes a formidable legal weapon.
The executory clause: the key for creditors
An imperative deadline
The creditor has a period of one month following the expiry of the opposition period (or the withdrawal of the debtor) to request that the enforcement order be registered. This time limit is strict. If the creditor delays too long, article 1423 of the Code of Civil Procedure (CPC) provides that the order will be null and void.
In practical terms, the creditor must :
- Request affixing without any particular formality
- Send your application to the clerk's office of the competent court
- Respect the one-month deadline
Case law has gradually hardened its stance on early claims. According to the Court of Cassation (2nd Civil Division, 10 January 2008, no. 07-10.508), the enforcement order cannot be affixed until the opposition period has expired.
A clear commitment to diversion
A revolutionary aspect of this procedure is that the affixing is done without the supervision of a judge. Decree no. 81-500 of 12 May 1981 abolished the judge's approval that was previously required.
This radical simplification gives the court clerk the considerable power to transform the order into a contradictory judgment. Without judicial intervention, the order becomes an enforceable title by operation of law.
The clerk must check :
- Expiry of the one-month objection period
- The regularity of meaning
- Admissibility of the request for affixation
There is no legal provision requiring the registrar to complete this formality within a certain period of time (Civ. 2e, 8 March 2001, no. 99-15.089).
The powerful effects of an enforcement order
Authority equivalent to a judgement
Article 1422 of the CPC states that an enforceable order "has all the effects of a contradictory judgement". It acquires the authority of res judicata and becomes indisputable on the merits, insofar as none of the parties to the proceedings has raised an objection. opposition has been validly filed.
Case law has confirmed this authority (Civ. 2e, 1 February 2018, no. 17-10.849): "The res judicata effect attached to an order for payment precludes claims relating to the termination of agreements concluded between the parties for non-performance and the restitution of sums paid in execution of the order.
A ten-year statute of limitations
Crucial point: a recent ruling by the Court of Cassation (Civ. 2e, 8 June 2023, no. 21-18.615) settled a debated issue by stating that "the enforcement of an order for payment is subject to the decennial prescription and not to that of the claim which it establishes when, served personally, it has not been opposed".
This solution offers creditors a considerable advantage, particularly where the original claim was time-barred.
Recovery by force of law
The range of enforcement methods
Once the enforcement order has been granted, it can be enforced as provided for in the Code of Civil Enforcement Procedures:
- Attachment of bank accounts
- Seizure and sale of movable property
- Seizure of property
- Seizure of earnings
A lawyer can determine which measure will be most effective depending on the debtor's assets.
The thorny issue of late objections
Delicate situation: what happens if service was not made personally and the debtor lodges an objection after the enforcement order has been issued?
The Court of Cassation laid down a balanced principle in an opinion dated 8 March 1996 (no. 09-60.002): a validly lodged objection prevents the payment of sums made unavailable by a seizure, but does not lead to the seizure being released.
This solution preserves the rights of the creditor while guaranteeing those of the debtor, who may not have been aware of the proceedings.
Enforcement litigation
The role of the enforcement judge
The enforcement judge (JEX) has jurisdiction over difficulties relating to forced enforcement. In particular, he may :
- Granting payment deadlines
- Resolving seizure disputes
- Ordering the release of an enforcement measure
The debtor is deprived but not without recourse
Even after the executory clause has been affixed, the debtor may try to obtain :
- Grace periods (article 1244-1 of the Civil Code)
- Suspension of prosecution in certain exceptional cases
- Debt rescheduling
The JEX has a moderating power that can relieve a bona fide debtor in temporary difficulty.
Nevertheless, the success of such claims remains uncertain. A lawyer can assess the chances based on the financial situation and the history of the case.
The maximum protection for a debtor remains vigilance from the moment the initial order is served. Immediate legal advice can make all the difference.
Our lawyers will analyse your situation and determine the precise optimal strategyWhether you're an impatient creditor or an overburdened debtor. Mastering the deadlines and formalities often makes the difference between success and failure in an order for payment procedure.
Sources
- Code of civil procedure, articles 1405 to 1425 (payment order procedure)
- Decree No. 81-500 of 12 May 1981 instituting the provisions of Books III and IV of the Code of Civil Procedure
- Court of Cassation, 2nd Civil Chamber, 10 January 2008, no. 07-10.508
- Court of Cassation, 2nd Civil Chamber, 8 March 2001, no. 99-15.089
- Court of Cassation, 2nd Civil Chamber, 1 February 2018, no. 17-10.849
- Court of Cassation, 2nd Civil Division, 8 June 2023, no. 21-18.615
- Court of Cassation, Opinion, 8 March 1996, No. 09-60.002
- Code des procédures civiles d'exécution, in particular articles L111-1 et seq.
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