Judicial recovery, what are we talking about?

Contrary to the amicable phase, the judicial collection aims at forcing the debtor to settle his debts around different judicial procedures such as the injunction to pay, the provisional injunction and the summons on the merits.

Before any legal proceedings are launched, the claim must first be :

  • Certain: i.e. incontestable
  • Liquid: the amount of the claim must be quantifiable
  • Due: due at the time of the request for payment

An application may be partially or totally rejected if the file is incomplete: absence of the form, insufficient supporting documents to make a decision.

 

What is a payment order?

The injunction to pay allows the collection of debts without first calling the debtor to court.

This is a simplified procedure specific to the courts of first instance and commercial courts. The debtor must reside in France and be neither in receivership nor in liquidation.

This inexpensive procedure has the particularity of being quick and non-adversarial. If no opposition is filed, the judge will issue a writ of execution at the end of the procedure, allowing it to be executed.

 

Good to know:

  • The payment of a cheque without sufficient funds cannot be recovered by means of the injunction to pay procedure since a specific procedure is available for this particular case.
  • The injunction to pay procedure is excluded for :
    • Payment of all tort claims
    • Payment of damages for non-performance of a contract
    • The return of the deposit paid for the resolution of a contract

For cross-border claims where the amount of a claim does not exceed €5000, it is possible to use a European order for payment (EOP). This procedure is instituted by the EC Regulation n° 1896/2006 of December 12, 2006, applicable since December 12, 2008 to the Member States.

 

The provisional injunction, an emergency procedure

Among the emergency procedures launched in summary proceedings, one will find the summary provision whose main advantage lies in its speed of execution (between 15 days and one month). This request is presented to the president of the commercial court. The essential condition of its effectiveness is the non contestable character of your claim.

The creditor must make all the documents of proof available to the judge, i.e. the quotations, the purchase order, the general terms and conditions of sale, the reminder letters, the formal notice... It makes it possible to obtain an enforceable title but which does not have the authority of res judicata.

 

The summons for payment on the merits

The summons on the merits is the longest procedure, often used for the most complex cases, with high amounts. This procedure consists in obtaining a judicial document obliging the debtor to pay his debt.

 

Conclusion

When the invoice is not paid on time, a reminder sent the next day is a good idea. In a structured approach, several solutions exist to ensure the payment of debts when due. These can be amicable or judicial.

The three forms of legal action discussed above follow strict pre-established rules in order to quickly find a viable solution to late payment.

Starting a legal collection procedure requires legal know-how and skills. Remember: if you have contracted with a merchant or a commercial company, the time limit to go to court and obtain payment is 5 years.

 

Judicial collection procedures

Order to pay Referral for provisional payment Submission to the merits
Type of Procedure Simplified Emergency Complex files, high amounts
Time procedure Fast (on average two months) Short (fifteen days - one month) Long (several months or years)
Legal representation Not required Not required Not required