Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

Pursuant to Article L. 131-4, para. 3, of the Code of Civil Enforcement Procedures, “the provisional or definitive penalty is remove in whole or in part it is established that the non-performance or delay in the performance of the court's order arises, in whole or in part , from an external cause.” The court is required to specify whether the circumstances of the case establish the existence of an external cause that could justify the total removal of the penalty . This is the case when it found that a demolition ordered would result in such significant difficulties that they amount to an impossibility of performance . The burden of proof for the external cause lies with the debtor subject to a specific performance obligation. This proof cannot, under any circumstances, result solely from the judicial liquidation of the condemned company .

The existence of an external cause during an initial period of application of the penalty payment may justify its partial removal by the court, but does not prevent the court from increasing the rate and modifying the duration for a second period . Similarly, an obligation to provide accounting documents concerning a closed period and an open period reveals the existence of a partial impossibility of execution, necessarily leading to a partial liquidation of the penalty payment .

An external cause (cause étrangère), within the meaning of Article L. 131-4, para. 3, is characterized when a landlord, ordered to carry out various works under penalty to make the premises he leased decent, faced the tenant's opposition, who never accepted the interventions of the craftsman dispatched to the premises , or when the injunction to disclose concerns a non-existent document due to the purely verbal nature of the subletting authorization granted . However, a penalty cannot be removed or reduced when the failure to comply with the injunction not to obstruct the access of a judicial commissioner and an IT technician to email accounts does not arise from a foreign cause to the parties bound by this obligation, but from their voluntary and deliberate obstruction to the perfromance of the order  or when the debtor of an obligation to return accounting documents merely alleges issues encountered in retrieving them from his former associate who held them .

Finally, the court retains the possibility, in the exercise of its sovereign power, to remove the penalty payment for the future without even having to establish the existence of an external cause when the decision pronouncing it lacks the authority of res judicata. Indeed, Article L. 131-4, para. 3, of the Code of Civil Enforcement Procedures is intended to apply only to the liquidation of a penalty payment that has already accrued .

Cass. 2e civ., 18 September 2003, LawLex202400002687JBJ, which quashes the appeal judgment that dismissed a company's application for the liquidation of the final penalty on the grounds that it had not suffered any economic and financial damage.

Cass. 2e civ., 12 February 2004, LawLex202200011375JBJ.

Cass. com., 2 October 2001, LawLex202400002523JBJ.

Cass. 2e civ., 29 January 2015, LawLex202400002689JBJ.

Cass. 2e civ., 16 December 2021, LawLex202400002690JBJ.

Cass. 2e civ., 11 February 2021, LawLex202400002685JBJ.

Cass. 2e civ., 17 June 2021, LawLex202400001711JBJ.

Fort-de-France, 13 January 2015, LawLex202300005037JBJ.

Cass. 2e civ., 1 June 1992, LawLex202400002531JBJ.

Cass. 2e civ., 21 February 2019, LawLex202400002527JBJ.

89. Existence of an external cause