To obtain forced performance of an obligationthe creditor must have a enforcement order. This is a legal act which, being subject to the executory clauseIt enables the bailiff (or commissioner) to force the debtor to perform. As such, it is a central issue in all enforcement measures: the creditor seeks to obtain and protect it; the debtor seeks to challenge it. How can it be obtained, how can it be protected and how can it be fought?
Definition of an enforceable title
A writ of execution is a legal document that allows a bailiff to enforce a court order.forced execution of an obligation to pay or a obligation to do. Depending on the case, enforcement may take a wide variety of forms.
Enforcement of the obligation to payfor example, could take the form of a attachmenta foreclosure or a seizure of shares.
Enforcement of the obligation to doThis can take the form of an eviction in the presence of the police, or it can be imposed on the debtor by means of a "court order". on-call duty.
The different types of enforceable title
The various enforceable titles are listed in article L. 111-3 of the Code of Civil Enforcement Procedures:
- Judicial or administrative decisions when they are enforceable, as well as agreements to which these courts have granted enforceability.
- Foreign deeds, judgments and arbitration awards declared enforceable by a decision that is not subject to an appeal suspending enforcement.
- Extracts from the conciliation minutes signed by the judge and the parties.
- Notarised deeds bearing the executory clause.
- Agreements by which the spouses mutually consent to their divorce or legal separation by private deed countersigned by lawyers, filed with a notary in accordance with the procedures set out in article article 229-1 of the Civil Code.
- The document issued by the bailiff in the event of non-payment of a cheque or in the event of an agreement between the creditor and the debtor under the conditions set out in Article L. 125-1 of the code of civil enforcement procedures.
- Instruments issued by legal entities governed by public law and qualified as such by law, and decisions to which the law attaches the effects of a judgment. The legal entities referred to in the text are the State, local authorities and public establishments that have a public accountant.
- Settlements and documents recording an agreement resulting from mediation, conciliation or a participative procedure, when they are countersigned by the lawyers of each of the parties and endorsed by the clerk of the competent court.
The red thread of the executory clause
In order for the deed to be enforceable, it must be endorsed with the following signature executory clause.
The executory formula is a formula dedicated to Article 1 of the decree of 12 June 1947 by which the French Republic orders the bailiff, the public prosecutors, the public prosecutors and all commanders and officers of the police force to execute the act.
The executory clause allows the bailiff to work under the authority of the French Republic. It is thanks to the executory clause that he can request the assistance of the police.
This executory clause is mentioned on several occasions in Article L. 111-3: it refers to executory forceforeign judgments declared enforceableetc.
The special case of court decisions: enforceability
Court rulings, even when they have the executory clause, are not necessarily enforceable. To benefit from the executory forcethey must first be served to the debtor.
How long is an enforcement order valid for?
La period of validity an enforceable title is variable.
Court rulings, foreign deeds and exequatur judgments, and conciliation reports signed by the judge and the parties can be enforced for 10 years.
This period is interrupted if the creditor initiates enforcement proceedings (e.g. seizure). The interruption starts a new period of 10 years. This means that compulsory execution can be pursued for decades, as long as the creditor does not forget to interrupt the limitation period.
The other enforceable titles mentioned in article L. 111-3 are subject to the limitation period for their action.
A notarial deed recording consumer credit, for example, will be subject to the 2-year limitation period applicable to consumer credit.
The same authentic instrument, if it establishes a professional credit (e.g., a loan to a company), may also be used for the purposes of the contract. equity loan), will be subject to the 5-year limitation period applicable between professionals.
This means that the prescription of a writ of execution must be analysed on a case-by-case basis.
How do I obtain a writ of execution?
The procedure for obtaining a writ of execution depends on the situation in which you find yourself and the objective you wish to achieve.
If a creditor is faced with a debtor who does not wish to pay a debt, the creditor will have to take legal action. recovery procedure. The practical details of this recovery procedure will depend on the configuration of the case :
- La summary provision procedure will be suitable for emergency situations. It allows you to obtain an enforceable title within a fairly short period of time. In return, this writ of execution will be provisional. This title will not allow the creditor to foreclose on the property: the rules are different.
- La payment order procedure is not contradictory. It can be used in the simplest cases (e.g. unpaid invoices).
- Summons for payment allows you to obtain a final enforcement order. The proceedings must be brought before the local court or in front of the judicial tribunaldepending on the amount (over or under €10,000).
However, legal proceedings are not the only way to obtain an enforceable title. In many cases, the creditor and debtor come to an agreement: a loan contract or an acknowledgement of debt can be drawn up before a notary. The notary is empowered to endorse the notarial deed with the executory clause: the deed becomes enforceable.
This doesn't just happen in the presence of a bank. It is a solution to be favoured by private individuals who wish, for example, to grant a loans between individuals.
How do I contest an enforcement order?
The procedures for contesting an enforcement order depend on the nature of the order.
An injunction to pay, for example, will have to be opposed.
The characteristics of the notarial deed may be challenged: does it establish a claim that is due and payable?
The court decision will be more difficult to contest because the judge will already have decided on the principle of the debt. However, the enforcement judge may, in certain circumstances, cancel the debt.
FAQ
How do I know if a title is enforceable?
A writ of execution is enforceable when it bears the executory clause. In the case of a judgment, it must also have been served.
Who can issue an enforcement order?
Enforcement orders are issued by the courts and by notaries.
How do I know if the bailiff has a writ of execution?
A debtor confronted with a bailiff may find it difficult to know whether the bailiff has an enforceable title. Where the bailiff has complied with the procedural rules applicable to service, he may consider that he has done his job and refuse to communicate the document to the debtor again.
In the context of the bailiff's amicable approach, this can pose a problem because his reminder letters will be purely comminatory. They will not contain the obligatory information that is specific to documents served in the context of enforced debt collection.
Once enforced collection has begun, the bailiff must mention the enforcement order on which the proceedings are based in all his documents. The debtor will be able to see clearly at this stage.
How do I pay for an enforcement order?
The debtor can pay for a writ of execution at the hands of the creditor or the court officers acting on the creditor's behalf: bailiffs and lawyers.
What is the bailiff's role in enforcing a writ of execution?
The court commissioner alone has the power to enforce a court order.
What is the time limit for payment of an enforcement order?
The enforcement order must be paid as long as it is not time-barred.
Can a seizure be carried out without a writ of execution?
A precautionary seizure can be enforced without a writ of execution. However, the creditor must request authorisation from the enforcement judge. Once the seizure has been carried out, the creditor must take the necessary steps to obtain a writ of execution ordering the debtor to pay the sums seized as a precautionary measure.
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