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

The penalty payment, which the Code of Civil Enforcement Procedures considers as a tool for preventing enforcement issues, is a mechanism aimed at compelling a person, whose resistance is anticipated, to fulfill the obligations imposed by a judicial decision and to ensure the right to such enforcement . Its rules, outlined in Articles L. 131-1 to L. 131-4 and R. 131-1 to R. 131-4 of the Code of Ci …

Concept of penalty payment

The penalty payment, which the Code of Civil Enforcement Procedures considers as a tool for preventing enforcement issues, is a mechanism aimed at compelling a person, whose resistance is anticipated, to fulfill the obligations imposed by a judicial decision and to ensure the right to such enforcement . Its rules, outlined in Articles L. 131-1 to L. 131-4 and R. 131-1 to R. 131-4 of the Code of Civil Enforcement Procedures, are based on a two-step mechanism. An initial decision, which may be the decision condemning a debtor to fulfill an obligation, or a subsequent decision rendered upon noting their opposition, stipulates that the debtor faces a financial penalty that progressively increases, often per day of delay, if they do not comply with the decision within a timeframe set by the court. Subsequently, if the debtor has indeed not complied within the prescribed period, the court calculates the final penalty, considering the duration of non-compliance.

Defined by the Court of Cassation as a coercive measure reserved for courts to ensure the enforcement of their decisions , the penalty payment is distinct from the penalty clause, as it can never be conventional . Pursuant to Article L. 131-2, para. 1, the penalty payment is also not to be confused with damages . Its amount, which is not intended to compensate for a loss , cannot be set in consideration of such a loss . However, there is nothing to prevent a combination of sanctions. The Court of Cassation indeed recognizes that the enforcement judge, who attaches a penalty payment to a decision rendered by another judge, has the power to award damages in the event of the debtor's abusive resistance to the enforcement of a writ of execution, provided that a fault and the existence of a loss are established . Finally, the penalty payment is also not considered a penalty subject, under Article 8 of the Declaration of the Rights of Man and of the Citizen, to the requirement of necessity and proportionality .

Ancillary measure to the conviction  and dependent on the contractual obligation serving as the legal basis for the decision pronouncing it , the penalty payment is intended to disappear when the contractual obligation no longer exists . Indeed, if the decision ordering the penalty payment is based on the obligatory nature, between the parties, of a right of first refusal subsequently annulled, it automatically loses its legal basis, and the amounts paid under the decision for liquidation of the penalty payment must be refunded . Similarly, a penalty payment loses its legal basis when, following the death of the usufructuary, the person targeted by an eviction decision with a penalty payment becomes, along with their co-heirs, the joint owner of the lands in question .

Cass. 1re civ., 20 October 1959, LawLex202400001691JBJ, according to which the penalty payment ultimately constitutes only a means to overcome the resistance to the enforcement of a judgment.

Cass. 1re civ., 9 March 1977, LawLex202400001685JBJ.

Cass. 2e civ., 28 September 2000, LawLex202400003030JBJ, which specifies that the reversal of the decision accompanied by a penalty payment automatically results in the nullification of the decisions made regarding the liquidation of the penalty payment, due to the loss of legal basis, even if they have become res judicata, and gives rise, if applicable, to restitution; 10 June 2010, LawLex202400002469JBJ, considering that the liquidation of a penalty payment must be annulled due to the loss of legal basis, as the prefectoral order that was the origin of the obligation accompanied by the penalty payment was itself annulled, and consequently, this obligation was retroactively nullified. Also see Cass. 2e civ., 6 January 2005, LawLex202400002468JBJ, for the subsequent annulment of the trademark that served as the basis for a counterfeiting conviction.

Cass. 2e civ., 24 September 2015, LawLex202400001686JBJ, prec.

Cass. 2e civ., 10 February 2022, LawLex202400001703JBJ.

Cass. 1re civ., 9 March 1977, LawLex202400001685JBJ, cited above .; Cass. 2e civ., 3 September 2015, LawLex202200005644JBJ.

See, for illustrations of the principle, Cass. 2e civ., 11 June 1997, LawLex202400002396JBJ; 17 April 2008, LawLex202400001698JBJ.

Cass. 1re civ., 20 October 1959, LawLex202400001691JBJ; Cass. soc., 20 January 1993, LawLex202400001712JBJ; Cass. 2e civ., 7 April 2016, LawLex202400001690JBJ.

Cass. 1re civ., 13 December 2012, LawLex202400001689JBJ.

Cass. 2e civ., 11 February 2010, LawLex202200010460JBJ.

Cass. 2e civ., 4 January 2012, LawLex202400001687JBJ. However, recent case law has partly reversed this solution, not on the basis of Article 8 of the Declaration of the Rights of Man and of the Citizen, but on Article 1 of Protocol No 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, see notably Cass. 2e civ., 20 January 2022, LawLex202400002675JBJ.

Cass. 2e civ., 7 July 2011, LawLex202400001704JBJ, emphasizing that the penalty payment is transferable with the claim it encumbers.

Cass. 2e civ., 28 September 2000, LawLex202400003030JBJ. - Also see Cass. com., 27 September 2016, LawLex202100002745JBJ.

5. Civil Enforcement Procedures

68. Concept of penalty payment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

68. Concept of penalty payment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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