Stuck with a service provider who doesn't deliver the promised service? A craftsman who delays carrying out work that has been paid for in advance? The injunction to do represents a legal weapon but potentially effective.
Definition of a restraining order
An injonction de faire is a specific legal procedure used to obtain performance of a contractual obligation. It is distinguished by its nature: it does not seek the payment of a sum of money, but the performance of a service.
In its general sense, an injunction is "an order, prescription or command issued by an authority that must be complied with", according to Gérard Cornu's Vocabulaire juridique.
The technical definition refers more specifically to the special procedure organised by articles 1425-1 et seq. of the Code of Civil Procedure. This procedure enables the creditor of a contractual obligation to perform to obtain a court order requiring the debtor to perform in kind.
This legal route is particularly aimed at:
- Delivery of items ordered
- Return of goods on deposit
- Issuing contractual documents
- Provision of services
Origin and historical development
The injonction de faire is a relatively recent development in French law. While the injonction de payer has existed since the 1930s, the injonction de faire was not introduced until 1988.
Decree no. 88-209 of 4 March 1988 established this procedure, amending Title IV of Book III of the Code of Civil Procedure. It was created in response to the development of the consumer society and the growing number of small claims between professionals and consumers.
The Institut National de la Consommation proposed this mechanism back in 1980, and it was taken up by the Commission de Réforme du Droit de la Consommation in 1984. The legislature finally adopted these proposals four years later.
Since 1997, the Consumer Code has explicitly referred to this procedure in article R.631-2 (formerly R.142-2).
Despite expectations, the procedure was not as successful as had been hoped. However, its legitimacy has been strengthened by the Order of 10 February 2016 reforming contract law, which more widely recognises the creditor's right to specific performance.
The international injunction to act
France has a certain originality with this mechanism specific. In Belgium, for example, the term "injonction de faire" exists but there is no dedicated procedure comparable to that in French law. The Belgian Judicial Code does have a "summary payment order procedure", but nothing equivalent for obligations to perform.
In Quebec, the Code of Civil Procedure devotes an entire chapter to injunctions to do or not to do (articles 509 et seq.), distinguishing between permanent and interlocutory injunctions. However, these procedures differ from the French injunction and its mechanism for reversing litigation.
Other European countries use similar techniques. In Italy, the Code of Civil Procedure (Article 639) provides for a summary procedure for certain obligations. In Sweden, the ordinary assistance procedure (handräckning) applies in particular to various delivery or performance obligations.
The paradox of the injunction to do
The creation of the injunction to do seemed to contradict the logic of the former article 1142 of the Civil Code, according to which "any obligation to do or not to do is resolved in damages in the event of non-performance by the debtor".
This 1804 text was traditionally interpreted as preventing the forced performance of obligations to do. However, French law has gradually evolved to favour performance in kind rather than the award of damages.
Ordinance no. 2016-131 of 10 February 2016 and its ratification act of 20 April 2018 enshrined this reversal by stating in article 1221 of the Civil Code that "the creditor of an obligation may, after formal notice, pursue its performance in kind unless such performance is impossible or there is a manifest disproportion between its cost to the debtor in good faith and its benefit to the creditor".
Curiously, despite this substantial change, the Code of Civil Procedure continues to refer to injunctions "to do", whereas the Civil Code has abandoned the classic distinction between obligations to do, not to do and to give.
Although the injonction de faire remains a relatively marginal procedure in practice, it is still relevant in certain cases. Its appropriate use can avoid more lengthy and costly procedures to obtain performance of contractual obligations.
Before considering this option, a detailed analysis of the conditions of application is essential. Legal advice will make it possible to assess the appropriateness of this procedure in the light of the specific circumstances of each contractual situation.
Sources
- Code of civil procedure, articles 1425-1 to 1425-9
- Civil Code, article 1221 (from order no. 2016-131 of 10 February 2016)
- Consumer Code, article R.631-2
- Decree no. 88-209 of 4 March 1988
- LAHER Rudy, "Injonction de faire", Répertoire de procédure civile, Dalloz, December 2020
- CORNU Gérard, Vocabulaire juridique, 13th edition, 2020, PUF
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