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 evolution of regulations concerning civil enforcement procedures is marked by the search for a balance between the need to satisfy the creditor by offering flexible, swift, and effective procedures, and the desire to humanize enforcement law due to the severity of its economic and social consequences for the debtor. Originally, the law was very strict towards the debtor. Indeed, Roman law prov …

In search of balance

Civil enforcement procedures regulate all the legal means available to a creditor to compel a debtor who does not voluntarily fulfill their obligations to comply. Whether the obligation arises from a contract or a court decision, its effectiveness is guaranteed by procedural tools that complement the contractual and legislative mechanisms offered under ordinary law, such as the stipulation of a penalty clause  or the automatic increase of legal interest rates .

Civil procedure in the broad sense and civil enforcement procedures, although distinguished by their purpose, appear to be highly complementary. The former concerns the proceedings aimed at the recognition of a right, which the latter allows to be fully effective. Therefore, for special law, a special court: enforcement disputes fall under the exclusive jurisdiction of the enforcement judge (juge de l'exécution), whose functions are exercised by the president of the Judicial Court, even if the disputes that arise concern the substance of the law .

The exercise of civil enforcement procedures is also complementary to the law of obligations, serving as its enforcement arm by asserting that “[t]he creditor is entitled to the performance of the obligation; he may compel the debtor under the conditions provided by law” and setting its scope and limits. Pursuant to Article 2284 of the Civil Code, “[a]nyone who has personally undertaken an obligation is required to fulfill their commitment with all their movable and immovable property, present and future.” The enforcement measures defined by the Code of Civil Enforcement Procedures may therefore apply to the debtor's entire estate, except for exempt property. The scope of this lien right constitutes an additional factor in the effectiveness of debt recovery, especially since nothing requires the creditor to act first on the debtor's movable property before seizing their immovable property. Conversely, while civil enforcement procedures generally favor the specific performance of the debtor's obligation, this is prohibited by the provisions of Article 1221 of the Civil Code when there is a manifest disproportion between its cost to the good-faith debtor and its benefit to the creditor. In other cases, specific performance can be ensured, in the case of an obligation to give something, through the seizure for delivery procedure, and in the case of an obligation to do something, such as vacating premises, through the eviction procedure. In cases where specific performance is not possible or not desired by the creditor, they may pursue performance by equivalent, by seizing and selling the debtor's movable or immovable property.

Monetary and Financial Code, Art. L. 313-3

Judicial Organization Code, Art. L. 213-6.

Ensuring the effectiveness of court rulings

The evolution of regulations concerning civil enforcement procedures is marked by the search for a balance between the need to satisfy the creditor by offering flexible, swift, and effective procedures, and the desire to humanize enforcement law due to the severity of its economic and social consequences for the debtor. Originally, the law was very strict towards the debtor. Indeed, Roman law provided that coercive measures could be applied to the debtor's own body, within the framework of the manus injectio, which could ultimately lead to enslavement. Abandoned at the end of the Republic, this procedure was replaced by enforcement on the debtor's assets, for a long time limited to movables, although “debtor's prison” remained a possibility in certain cases. The establishment of a general lien right for creditors on both movable and immovable assets of the debtor occurred with the adoption of the Napoleonic Civil Code in 1806  and coercion by imprisonment for civil and commercial debts was definitively abolished in 1867 . The most significant subsequent reforms are undoubtedly those of 1991 and 2006. The first, enacted by Law No 91-650 of 9 July 1991 and its implementing Decree No 92-755 of 31 July 1992, aimed to modernize procedures for movable seizures and interim protective measures. It replaced the former designation of “enforcement measures” with “civil enforcement procedures.” The second, resulting from Ordinance No 2006-461 of 21 April 2006 and its implementing Decree No 2006-936 of 27 July 2006, aimed to simplify the procedure for real estate seizures and the distribution of sale proceeds while seeking to promote amicable sales, always to ensure a balance between the debtor's rights and the creditors' interests. Almost all the rules applicable to civil enforcement procedures were subsequently codified, mainly maintaining the existing law, by Ordinance No 2011-1895 of 19 December 2011 for the legislative part and Decree No 2012-783 of 30 May 2012 for the regulatory part.

In this framework, the protection of the debtor is ensured by the mandatory public policy nature of the rules  and the prohibition of the “clause de voie parée” (clause allowing non-judicial enforcement)  that results from it, a formality aimed at ensuring proper information on the extent of their rights and duties, imposed under penalty of invalidity of the acts, shortened procedural time limits, and the preference given to amicable sales over forced sales in both movable and immovable procedures. The interests of the creditor are not sacrificed: the clear dejudicialization of enforcement law gives them control of the procedure, with the assistance of the judicial commissioner, and the burden of seizure procedures, both movable and immovable, has been significantly reduced.

Civil Code, Articles 2092 and 2093, now found in current Article 2284.

Judicial constraint remains applicable in criminal matters for tax and customs fines and for certain offenses, See CPP, Art. 749 to 762; but also in cases of fraudulent organization of insolvency, See Criminal Code, Art. 314-7; or family abandonment, See Criminal Code, Art. 227-3.

See Code of Civil Procedure, Art. L. 111-1, under which [a]ny creditor may, under the conditions provided by law, compel their defaulting debtor to fulfill their obligations towards them (emphasis added).

Clause by which a creditor reserves the right to bypass civil enforcement procedures to seize and dispose of the debtor's assets themselves. In the case of movables, it is prohibited for the pledgee creditor by Art. 2346 of the Civil Code, and in the case of immovables, by Art. L. 311-3 of the Code of Civil Enforcement Procedures.

The effectiveness of enforcement law stems from the significant de-judicialization of procedures. The reforms of 1991 and 2006 have indeed resulted in a gradual reduction of the court's role, which is now only called upon to intervene once the procedures are initiated, to resolve any disputes that may arise , or to approve agreements concluded between creditors . This “privatization” of the procedure relies on the enforceability of the instrument underpinning the procedure, whose inviolability is affirmed , and on the central role assigned to the judicial commissioner  - a public and ministerial officer responsible for implementing enforcement actions  and ensuring the legality of proceedings . Now, a creditor who has obtained the recognition of their right by a court of first instance is exempt from re-engaging the justice system to overcome the debtor's potential resistance. It is only in the absence of an enforceable title, as in the case of interim protective measures, that the judge resumes control of the procedure . The debtor's prior authorization is also required when the measures are to be implemented in a place used as the his or her residence . The legislator's preference for negotiated solutions or those implemented outside the courts is also evident in the set of rules that encourage amicable rather than forced sales, within the framework of both movable  and real estate seizure proceedings . This method of sale benefits both the debtor and the creditor as it is likely to ensure a better price for the former, and consequently, better chances for the latter to be satisfied with their rights than if the assets were sold at auction, at a reduced price and under much more stringent formal requirements.

See, in particular, at the stage of the distribution of the price of the building, Code of Civil Procedure (enforcement), Art. R. 332-5.

The term “judicial commissioner” replaces that of “court bailiff” since the merger of the professions of court bailiff and judicial auctioneer carried out by Ordinance No 2016-728 of 2 June 2016, which came into force on 1 July 2022, and does not bring any significant change in the exercise of these professionals' functions.

CPC exec., Art. L. 122-1, according to which [o]nly [judicial commissioners] responsible for enforcement may carry out compulsory enforcement and interim protective seizure

CPC exec., Art. L. 122-1, para. 2, specifying that judicial commissioners are required to provide their services or assistance unless the requested measure appears to them to have an unlawful character. For an illustration, see Cass. 1re civ., 13 May 2014, LawLex202300000294JBJ.

Cass. 2e civ., 17 September 2020, LawLex202200010418JBJ.

CPC exec., Art. R. 321-3, 8°, R. 322-5 and R. 322-17.

A predominantly extra-judicial regime

The Code of Civil Enforcement Procedures provides the creditor facing the debtor's resistance, whether merely anticipated or actual, with a whole range of tools suited to the situation or the nature of the claim, aimed at compelling the debtor to fulfill their obligation.

When creditors have reason to fear that debtors will fail to fulfil their obligations, they have two types of proceedings at their disposal, both of which involve recourse to the courts. The first, specifically designed as a tool to prevent enforcement problems, consists of requesting that the debtor be ordered to fulfil their obligations, subject to a penalty payment. This creation of praetorian origin, established by Law No 72-626 of 5 July 1972 , now codified in Articles L. 131-1 to L. 131-4 and R. 131-1 to R. 131-4 of the Code of Civil Enforcement Procedures, allows the court to foresee a potential condemnation of the debtor to a monetary sanction, the amount of which may progressively increase if the debtor does not comply with the decision within a set timeframe. The second allows the creditor to petition the court for interim protective measures when, without holding a writ of execution, they justify, cumulatively, a claim appearing well-founded in principle and circumstances likely to threaten its recovery. The interim protective measures, whose rules are set in Articles L. 511-1 to L. 533-1 and R. 511-1 to R. 534-1, can take the form of a protective seizure or judicial security. They allow the creditor to render the debtor's tangible or intangible assets unavailable to protect their general lien right while awaiting the acquisition of a writ of execution, which will subsequently enable them to implement a compulsory enforcement measure.

When the debtor's non-performance is proven and recorded in a writ of execution, the creditor may implement a measure of compulsory enforcement, either on movable or immovable property, which largely allows them to dispense with recourse to the court. The Code of Civil Enforcement Procedures establishes specific procedures adapted to the nature of the property subject to the measure, which results either in direct apprehension of the property, as in the attachment of monetary claims, seizure - apprehension  or claim-based seizure of tangible movable property, or eviction  in real estate matters, or by seizing the property for resale, as in the seizure and sale of tangible movable property or real estate seizure. Finally, specific provisions apply to intangible rights , which largely borrow from the regime of seizure and sale of tangible movable property.

Law No 72-626 of 5 July 1972 establishing an enforcement judge and relating to the reform of civil procedure, OJ 9 July 1972.

CPC exéc., Art. L. 222-1 and R. 222-1 to R. 222-16.

CPC exec., Art. L. 411-1 to L. 451-1 and R. 411-1 to R. 451-4.

CPC exéc., Art. L. 231-1 to L. 233-1 and R. 231-1 to R. 233-9.

5. Civil Enforcement Procedures

2. In search of balance

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Les notions juridiques connexes

2. In search of balance

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