In the sometimes opaque world of debt collection, some legal tools are more effective than others. The summons for enforcement belongs to this category of acts which, although little known to the general public, are a powerful lever for encouraging a debtor to comply voluntarily.
What is a summons for enforcement?
Definition and legal nature
A summons for enforcement is an extrajudicial document served by a bailiff. Its purpose is to enjoin a debtor to perform an obligation. As defined in Dean Cornu's Legal Vocabulary, it is a "comminatory invitation" - by which is meant a request accompanied by an implicit threat of legal action.
In its modern form, this deed is the direct heir to ancient legal practices. Historical documents attest to its use as far back as the Ancien Régime, in both written and customary law provinces.
Distinction from formal notice
Don't confuse a summons with a formal notice. Formal notice is a broader concept that encompasses several acts, including the summons. Article 1344 of the Civil Code states: "The debtor is put on notice to pay either by a summons or a sufficiently formal summons or, if the contract so provides, by the mere fact that the obligation has fallen due.
A summons is therefore a special form of formal notice, issued by a bailiff.
Difference with command
The distinction between a summons and a summons is more subtle. A summons is also a writ issued by a bailiff to enforce an obligation. However, unlike a summons, it is generally part of a compulsory enforcement procedure.
A summons to pay is often a direct prerequisite to a seizure or eviction. As the Court of Cassation has stated (Civ. 2e, 16 Dec. 1998, no. 96-18.255), it "initiates" enforcement in the procedural sense, thus justifying the jurisdiction of the enforcement judge in the event of a dispute.
Areas of application
General applications
Summons from the debtor
A summons may be issued whenever it is necessary to serve formal notice on a debtor (articles 1344 et seq. of the Civil Code). It becomes unnecessary when contractual non-performance is irreversible - what article 1231 of the Civil Code describes as "definitive non-performance".
Summons from the creditor
The Order of 10 February 2016 reforming contract law introduced an innovative mechanism: formal notice to the creditor. Provided for in Articles 1345 et seq. of the Civil Code, this allows the debtor to summon a creditor who, on the due date and without a legitimate reason, refuses to receive the payment owed to him.
This reversal of traditional roles offers protection to a debtor in good faith faced with a recalcitrant creditor.
Special applications
Specific legislation sometimes requires the use of a summons. For example :
- In inheritance law, article 771 of the Civil Code allows an heir to be summoned to take sides four months after the opening of an estate.
- In commercial law, article L. 141-20 of the French Commercial Code provides that a purchaser may be summoned by any creditor to deposit the portion of the price of a business that is due.
- In criminal procedure, article 319 of the Code of Criminal Procedure stipulates that a summons may be served on an accused person who refuses to appear.
Formal aspects of summation
Jurisdiction of the bailiff
The summons must be served by a bailiff or sworn clerk. The bailiff's territorial jurisdiction is limited to the Court of Appeal, as specified in article 3 of Order no. 45-2592 of 2 November 1945 on the status of bailiffs.
Drafting and compulsory information
On pain of nullity, the deed must contain the information required by Article 648 of the Code of Civil Procedure:
- The date of service
- Information about the applicant
- The full name, address and signature of the bailiff
- The name and address of the recipient
The Order of 29 June 2010 also imposes other elements such as the firm's seal, the image of Marianne or the firm's seal.
More specifically, a summons for performance must clearly state the creditor's intention to obtain performance and detail the obligation claimed. For financial obligations, a statement of the sums due is essential.
Terms of service
Service follows the classic rules of articles 653 et seq. of the Code of Civil Procedure. Priority must be given to personal service (article 654). Only if this is not possible may it be served at a person's home or residence (article 655).
Since 2012, electronic service has been possible, but only with the consent of the addressee (article 662-1).
Cost of the process
The cost of the summons is governed by article A444-10 of the French Commercial Code. In principle, it is borne by the claimant. There are two exceptions:
- When the summons is part of an enforcement procedure
- In the case of a summons to put the creditor on notice (article 1345-3 of the Civil Code)
The legal effects of the summons
Psychological effects
The summons exerts a comminatory constraint on its addressee. By threatening legal action, it encourages the debtor to fulfil his obligation voluntarily. This psychological pressure is accentuated by the intervention of the bailiff.
This effect is often the main purpose sought by the creditor. It allows him to save the costs of a lawsuit or forced execution.
Common legal effects
The main legal effect common to all summonses is to formally record non-performance. This evidential element is invaluable in the event of a subsequent dispute.
Contrary to popular belief, a summons does not interrupt the limitation period. Case law is consistent on this point (Civ. 3e, 6 March 1996, no. 94-13.212).
Specific legal effects
For cash bonds
The summons gives rise to interest on arrears at the legal rate (article 1231-6 of the Civil Code). This interest is calculated from the date of the formal notice, without the creditor having to prove any prejudice.
For obligations to deliver
The formal notice "places the risks on the debtor, if they are not already there" (article 1344-2 of the Civil Code). This rule derogates from the principle that risks are transferred when ownership is transferred.
Putting the creditor on notice
A summons sent to the creditor has immediate effects: it stops the accrual of interest owed by the debtor and places the risks of the item at the creditor's expense (article 1345 of the Civil Code).
After a period of two months, deferred effects appear. The debtor may then deposit the sum with the Caisse des dépôts et consignations or sequestrate the item due, which releases him from his obligation.
Drawing up a summons for enforcement requires in-depth technical expertise. An error in the way it is worded or served can deprive it of its most important legal effects. Our firm is at your disposal to assist you in this process, both upstream and downstream of the debt collection procedure. Do not hesitate to contact us for an initial discussion of your situation.
Sources
- Civil Code, articles 771, 1196, 1231, 1344, 1344-2, 1345 to 1345-3, 1351-1.
- Commercial Code, articles L. 141-20, L. 143-5, A444-10.
- Code of Civil Procedure, articles 648, 653 to 662-1.
- Code of Criminal Procedure, article 319.
- Order no. 45-2592 of 2 November 1945 on the status of bailiffs.
- Cour de cassation, Civ. 2e, 16 December 1998, no. 96-18.255.
- Cour de cassation, Civ. 3e, 6 March 1996, no. 94-13.212.
- G. CORNU, Vocabulaire juridique, 13th edn, 2020, PUF.
- R. LAHER, Répertoire de procédure civile - Sommation, June 2020, Dalloz.
EN 
FR