The preconditions for forced collection in France

Author: Pauline THIBOUT from the collection agency CAP RECOVERY

No forced execution without an enforceable title!

The writ of execution is a written act which establishes the existence of an obligation giving the authorization to seize assets. There are several enforceable titles defined by law (Article L 111-3 of the Code of Civil Enforcement Procedure):

1. The decisions of the courts of the judicial order or the administrative order when they have enforceable force, as well as the agreements to which these courts have conferred enforceable force.
2. Foreign acts and judgments as well as arbitral awards declared enforceable by a decision not subject to an appeal suspending execution, without prejudice to the provisions of applicable European Union law.
3. Extracts from the conciliation minutes signed by the judge and the parties.
4. Notarial deeds bearing the enforceable formula.
5. The agreements by which the spouses mutually consent to their divorce or their legal separation by deed under private signature countersigned by lawyers, filed in the minutes of a notary according to the procedures provided for in Article 229-1 of the Civil Code.
6. The document issued by the bailiff in the event of non-payment of a check or in the event of an agreement between the creditor and the debtor under the conditions provided for in Article L. 125-1.
7. Titles issued by legal persons under public law qualified as such by law, or decisions to which the law attaches the effects of a judgment.
8. Transactions and deeds establishing an agreement resulting from mediation, conciliation or a participatory procedure, when they are countersigned by the lawyers of each of the parties and covered with the enforceable formula by the registry of the competent court »
   

The title that we find the most in terms of recovery is the court decision covered with the enforceable formula:
"Consequently, the French Republic warrants and orders all judicial officers, on this request, to put the said judgment (or the said judgment, etc.) into execution, the public prosecutors and the public prosecutors at the high courts to hold a hand in it, to all commanders and officers of the public force to lend a hand when they are legally required to do so. In witness whereof this judgment (or judgment, etc.) has been signed by […]”.

• It must have been officially brought to the attention of the debtor.
• It should not be the subject of an appeal suspending execution.
• The title must record a liquid and payable claim.

Court decision brought to the attention of the debtor.

To be enforced, a court decision ordering a debtor to pay an invoice must be served on the latter. "To serve" means to bring to the attention of the person concerned by means of a commissioner of justice (formerly bailiff).

In concrete terms, once the court decision has been rendered, the Court Registry sends it to the plaintiff (in principle the creditor). The latter must then send the decision to a commissioner of justice requesting service of the judgment on the debtor.
Upon receipt, the commissioner draws up a document in which he indicates the nature of the decision rendered, its date, and the means of appeal open against this decision. It also indicates the procedures for making an appeal (deadlines, forms, etc.).

Absence of appeal suspending execution

In order to be able to carry out the enforcement proceedings, the decision must not be the subject of an appeal suspending execution. The classic suspensive remedies are the appeal and the opposition. The appeal itself and the appeal period suspend the right to enforce the decision. However, in general, court decisions are, by right, accompanied by provisional execution. This means that it is possible to initiate enforcement measures even if an appeal is lodged. Provisional execution may, however, be set aside by the judge rendering the decision, either in cases provided for by law, or at the reasoned request of one of the parties.

The title must record a liquid and payable debt

Article L 111-2 of the Code of Civil Enforcement Procedures provides that "the creditor provided with an enforceable title evidencing a liquid and payable debt may pursue the forced execution thereof on the assets of his debtor under the conditions specific to each enforcement measure”. A liquid claim is a claim whose amount is determined by the judge. The condemnation is clear: the debtor is condemned to pay a sum fixed in its amount. A receivable due is a receivable that has reached maturity. A payment deadline suspends the enforceability of a claim. Thus, if the judge grants a payment deadline to the debtor, his creditor cannot entrust the execution to a commissioner of justice only if the deadlines are not respected. The judge may provide for a forfeiture of the term in the decision and provide for example that in the event of non-payment of a due date, all of the sums will be payable, fifteen days after a formal notice has remained unsuccessful. In this case, for the entire debt to be payable, it will be necessary:

• Failure to pay a due date.
• The sending of a formal notice, regularly received by the recipient.
• A lack of regularization within 15 days of receipt of the letter.