You won your case. The judgment is in your favour. Now comes the crucial stage: enforcement. But your debtor is contesting. What can you do? the enforcement judge (JEX) ? Its powers are extensive but strictly regulated by law.
Examination of difficulties relating to enforceable titles
The JEX may deal with difficulties relating to the enforcement order, but only in connection with a compulsory enforcement measure. The Court of Cassation set this limit in an opinion of 16 June 1995: the JEX has jurisdiction neither before nor after the enforcement measure (Cass., opinion, 16 June 1995, no. 09-50.008).
Verification of enforceability
The JEX's first power is to check that the order is enforceable. This makes it possible to examine :
- The presence of the executory clause on decisions or acts
- The enforceability in France of a foreign title
A concrete example? The JEX may find that a notarial deed that does not have the enforcement formula is not enforceable (Civ. 2e, 28 June 2006, no. 04-17.514).
Checking the identity of the parties
The JEX also checks the identity of the parties mentioned in the title. Only the identified debtor may be the subject of enforcement measures.
In practice, the judge may interpret the terms of the deed when the wording is confusing. He may consider that, despite a different name, the entity against which the seizure has been made forms one and the same person with the entity identified in the title (Civ. 2e, 17 Nov. 2005, no. 04-14.604).
The limits of the JEX's power
Principle of unchangeability of the writ of execution
Article R. 121-1 of the Code of Civil Enforcement Procedures lays down a fundamental limit: the JEX may not amend the operative part of the decision on which the proceedings are based.
It's not a reviewing body against the court decision on which the proceedings are based" (R. PERROT and P. THÉRY, Procédures civiles d'exécution, 3rd ed. 2013, Dalloz, no. 232).
Impossible to modify the system
The JEX cannot :
- Questioning the principle of the title
- Challenge the validity of the rights and obligations it establishes
- Adding to or subtracting from the decision
- Replacing certain heads of the system
A well-informed legal expert will note this significant ruling: the JEX cannot substitute compensation in equivalent for compensation in kind initially ordered (Civ. 3e, 23 March 2005, no. 03-19.071).
Subsequent events
If the JEX cannot amend the title, it can take subsequent events into account.
Partial payments taken into account
The judge takes into account the payments made by the debtor, which reduce the amount of the debt (Civ. 2e, 31 May 2001, no. 99-20.170). This prerogative is logical: no one can be forced to pay twice.
A recent development in the case law confirms this point: "The JEX may, in the event of a challenge to a compulsory enforcement measure, consider the extinction of the claim that is the subject of this measure for a reason subsequent to the decision that established this claim" (Civ. 2e, 8 Dec. 2022, no. 20-20.233).
Interpreting the title
The JEX can interpret the writ of execution, for example by specifying :
- The starting point for statutory interest not stated in the judgment
- If the award is for gross sums
- Calculation of social security contributions due
Beware of the limits: under the guise of interpretation, the JEX cannot modify the provisions of the title, even if they are erroneous (Civ. 2e, 3 Apr. 2003, no. 01-12.564).
Assessment of contractual titles
Notarial deeds
Case law has evolved on this point. For a long time, the JEX was not allowed to rule on the nullity of an enforceable notarial deed. In 2009, however, there was a major turnaround: the JEX can now rule on an application to have an enforceable notarial deed declared null and void on the grounds of fraud, where the deed served as the basis for a contested seizure (Civ. 2e, 18 June 2009, no. 08-10.843).
This solution provides a welcome consistency, since the JEX became the judge for the seizure of property in 2006 and has always been able to examine the legality of the notarial deed in this context.
Approved transactions
By the same token, the JEX may rule on the validity of a settlement agreement, even if it has been approved by the court. The settlement remains a contract, and judicial approval does not alter its contractual nature (Civ. 2e, 28 Sept. 2017, no. 16-19.184).
When should I consult a lawyer to contest an enforcement order?
Challenging an enforcement order before the JEX is a tricky business. Representation by a lawyer has been compulsory before the JEX since 1 January 2020, with limited exceptions.
Legal expertise is required in a number of cases:
- When you believe that the title is flawed
- When you have made payments that were not taken into account
- If you dispute that you are the debtor covered by the title
- If there is any ambiguity about the exact scope of the title
Procedural strategy must be carefully prepared. Neglecting to do so can result in the loss of your rights, particularly when a dispute over a seizure must be reported to the bailiff on the same day.
If you are facing enforcement action, don't wait. The analysis of a specialised lawyer can reveal the following effective means of defenceThis is in compliance with the strict deadlines imposed by the Code of Civil Enforcement Procedures.
Our firm can help you to protect your rights. Contact us as soon as you receive a summons to pay or a writ of seizure for an initial analysis of your situation.
Sources
- Code of Judicial Organisation, article L. 213-6
- Code of civil enforcement procedures, articles L. 111-7, L. 121-2, R. 121-1, R. 121-2
- Cour de cassation, opinion of 16 June 1995, no. 09-50.008
- Court of Cassation, 2nd Civil Division, 28 June 2006, No. 04-17.514
- Court of Cassation, 2nd Civil Division, 17 November 2005, No. 04-14.604
- Court of Cassation, 3rd Civil Chamber, 23 March 2005, No. 03-19.071
- Court of Cassation, 2nd Civil Division, 3 April 2003, No. 01-12.564
- Court of Cassation, 2nd Civil Chamber, 18 June 2009, no. 08-10.843
- Court of Cassation, 2nd Civil Chamber, 28 September 2017, no. 16-19.184
- Court of Cassation, 2nd Civil Division, 8 December 2022, No. 20-20.233
- PERROT R. and THÉRY P., Procédures civiles d'exécution, 3rd ed. 2013, Dalloz
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