Stuck with a customer who refuses to pay? An injunction to pay could be your solution. This procedure, which is little known to the general public, is nevertheless an effective tool for recovering sums owed without getting involved in an interminable trial.
Definition and objectives of an order for payment
An injunction to pay is a simplified legal proceedings enabling a creditor to quickly obtain a writ of execution against a recalcitrant debtor. It represents a legal response to the inertia of a debtor who shirks his payment obligations.
Its legal nature is twofold: in its first phase, it is a non-adversarial procedure, then in its second phase, it becomes fully adversarial if the debtor files an objection.
Its main purpose is to speed up the process of obtaining a writ of execution to force the debtor to pay. As article 1405 of the Code of Civil Procedure emphasises, the aim of this procedure is to recover a specific debt while preserving the rights of the defence.
The balance between protecting the creditor and respecting the debtor's rights is reflected in the debtor's ability to object after service of the order.
Historical development of the payment order
Inspired by Mahnverfahren In Germany, the French injonction de payer originated in the decree-law of 25 August 1937, which designated it as a "simplified procedure for the recovery of small commercial claims".
Law no. 57-756 of 4 July 1957 extended its scope to civil claims, thereby improving its practical utility. Decree no. 72-790 of 28 August 1972 then abolished any limitation on the quantum of the claims concerned.
The current codification is the result of decree no. 81-500 of 12 May 1981, which modernised the procedure, in particular by abolishing the judge's prior approval before the executory clause could be affixed.
More recently, Act no. 2011-1862 of 13 December 2011 partially overhauled the procedure, particularly with regard to the rules governing jurisdiction. Decree no. 2022-245 of 25 February 2022 introduced electronic communication of supporting documents to the debtor.
Types of receivables concerned
Article 1405 of the Code of Civil Procedure sets out an exhaustive list of claims that may be the subject of an injunction to pay:
- Receivables arising from contracts or statutory obligations and amounting to a specific sum.
Case law has interpreted this concept broadly to include "all sums stipulated in the contract, determinable solely by virtue of the contractual provisions" (Civ. 2e, 8 Feb. 1989, Bull. civ. II, no. 34).
This includes late payment penalties set out in the general terms and conditions, compensation due in application of a penalty clause, or contractually agreed damages.
- Commitments resulting from the acceptance or drawing of a bill of exchange, the subscription to a promissory note, or the endorsement of these securities.
However, certain claims are excluded from this procedure:
- Claims arising from tort, delict or quasi-delict
- Receivables arising from quasi-contracts
- Unpaid cheques, which are covered by a specific procedure
Special features of an order for payment
The first phase of the payment order is non-adversarial. The judge makes his decision solely on the basis of the documents provided by the creditor, without hearing the debtor. This feature, which might seem contrary to the fundamental principles of due process, is justified by the desire to speed up the recovery of uncontested debts.
The simplicity of the procedure is a major advantage: the application is made by a simple request delivered to the court registry. According to article 1407 of the Code of Civil Procedure, it may be presented by the creditor himself or by any agent.
The cost to the creditor remains limited. Before the Commercial Court, he will have to advance the costs of the order, which will be deposited with the court registry, but these costs may be charged to the debtor in the event of success.
The effectiveness of this procedure explains its growing success. In 2000, there were almost 675,000 applications before the magistrates' courts, demonstrating its practical usefulness for businesses faced with unpaid debts.
Recent legislative changes, such as decree no. 2022-245 of 25 February 2022, have made the procedure more paperless, in particular by introducing electronic communication of supporting documents to the debtor.
Faced with an unpaid contractual debt? Find out whether an order for payment is right for you. Our firm can analyse your case and determine the optimal recovery strategy. Don't wait for your debt to become irrecoverable.
For claims with an international dimension, particularly within the European Union, it is also relevant to explore the specific features of theEuropean order for payment.
Sources
- Code of Civil Procedure, articles 1405 to 1425
- Decree No. 81-500 of 12 May 1981 instituting the provisions of Books III and IV of the Code of Civil Procedure
- Law no. 2011-1862 of 13 December 2011 on the distribution of litigation
- Decree no. 2022-245 of 25 February 2022 promoting recourse to mediation
- Civ. 2e, 8 February 1989, Bull. civ. II, n°34
- Com. 26 May 1983, Gaz. Pal. 1983. 2. pan. 290
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