If you are unable to collect a sum of money owed to you out of court, you can resort to an injonction de payer procedure. This is a "non-adversarial" procedure. As a result, the debt can be recovered simply by means of a court order, without the need for a hearing involving both parties.
An injunction to pay is a particularly effective form of legal collection. It enables pressure to be brought to bear on a debtor whose bill remains unpaid. It's a simple and inexpensive procedure.
However, decree no. 2021-1322 of October 11, 2021 has modified the injonction de payer procedure. What changes has this decree made to the injonction de payer procedure? Paris intellectual property lawyer answers.
Payment injunction procedure
The injunction to pay procedure is adapted to both commercial and civil claims. Commercial claims are debts between two professionals. Civil claims, on the other hand, concern relationships in which one of the parties is a private individual (a company and a consumer, for example).
Used as a last resort, the injunction to pay procedure must follow amicable collection attempts (telephone calls, reminder letters, formal notice).
What are the conditions for using the injonction de payer procedure?
In order to use the injunction to pay procedure, the claim must be :
Contractual: it must follow on from a contract (rental agreement, loan agreement, etc.).
Determined by an amount: the amount of the debt must be specified
Due: the payment deadline must have expired.
Observed before the end of the limitation period. The limitation period for a purchase between a company and a consumer is 2 years. Between professionals, the period is 5 years.
The injunction to pay procedure makes it possible to obtain a court decision on the elements that the creditor will be able to communicate. He must therefore be able to compile his file with the following documents:
CERFA n° 12948*06 form
Copies of unpaid invoices
Proof of customer commitment (purchase order, signed quotation, etc.).
Copy of formal notice and acknowledgement of receipt
List of supporting documents
The request must also include the following information:
Full name,
Profession,
Domicile,
Nationality,
Date and place of birth
Name, legal form, SIRET, address (if company)
Name and address of the person against whom the claim is made
Purpose of request
Amount due with breakdown of the various elements of the claim
The creditor must submit his claim to the judicial court if his customer is an individual, or to the commercial court if his customer is a company. The court of jurisdiction is always that of the debtor's domicile or registered office.
The court's decision comes one to two weeks after the seizure.
For assistance with IT contracts: https://roquefeuil.avocat.fr/avocat-droit-informatique-paris-contrats/
The court decision orders the debtor to pay his debt in full
In this case, the court will issue a payment order listing all the sums to be paid by the debtor (invoice amount, late payment interest, court fees).
The creditor must therefore contact a bailiff to notify the debtor of the court's decision. The creditor has 6 months in which to serve the order. The cost of using a bailiff is borne by the creditor.
The judge issues an order of partial acceptance or partial rejection of the petition.
In this case, the judge issues an injunction to pay part of the sum requested by the creditor. For example, for a claim of €3,000, the judge can only grant an order for €800.
The creditor can then :
Not to accept the judge's decision and to pursue ordinary legal proceedings to recover the full amount owed by the debtor.
To accept the order and collect only part of the amount requested.
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The court issues a dismissal order
If the judge deems the claim to be unfounded, he or she may dismiss the application for an injunction to pay.
No recourse is then possible for the creditor. If he wishes, he can pursue collection by writ of summons or provisional injunction.
Application of the court decision
Following the judge's decision, the creditor has 6 months in which to call in a bailiff to notify the debtor of the order.
The debtor, for his part, has 1 month to contest the judge's order. This period allows both the debtor and the creditor to present their arguments before a judge. The objection must be addressed to the court that issued the decision. This can be done by registered letter with acknowledgement of receipt, or in person at the court. For claims in excess of €10,000, representation by a lawyer is mandatory. If the judgment is for an amount in excess of €5,000, both the debtor and the creditor may contest it before the Court of Appeal.
There are two ways of collecting a debt:
The debtor pays the full amount stated on the order, which closes the case,
The debtor does not pay his debt, in which case the bailiff can be seized.
International Chambers of Commerce : https://roquefeuil.avocat.fr/international-arbitration-international-commercial-chambers-of-paris/
How much does an injunction to pay cost?
The injunction to pay procedure is free of charge when it is civil in nature. However, an application to the Commercial Court for an injunction to pay a commercial debt incurs court fees of €35.21.
Are you a creditor faced with an unpaid bill from a debtor? Are you a debtor who wishes to contest an injunction to pay? Pierre de Roquefeuil, an intellectual property lawyer in Paris, can advise you and defend your interests.
Payment injunction procedure: changes introduced by decree no. 2021-1322 of October 11, 2021
Decree no. 2021-1322 of October 11, 2021 has come into force to modify the injunction to pay procedure.
The regulatory changes enable the court to issue the creditor with an enforceable order. As a result, the creditor will no longer have to apply to the judge again, as was the case prior to the change in procedure.
Thus, since the application of decree no. 2021-1322 of October 11, 2021, the decree of February 25, 2022 amending the previous one, and the amendment of article 1411 of the Code of Civil Procedure, the texts provide that:
"At the creditor's initiative, each debtor is served with a certified copy of the request, accompanied by a list of supporting documents and the enforceable order. The bailiff makes the supporting documents available to the debtors electronically, in accordance with the procedures defined by order of the Minister of Justice.
If the supporting documents cannot be made available electronically for reasons beyond the bailiff's control, the bailiff attaches them to the copy of the petition served.
An order for payment is null and void if it has not been served within six months of its date.
Legislation now provides for electronic communication of documents to debtors. This is done via a secure web application called "Mes pièces" (http://mespieces.fr).
In application of the latest measures relating to the injunction to pay, the bailiff must ensure that the documents remain available at least one month after service of the request.
Payment order procedure: the new provisions lack precision and completeness on certain points
The new provisions relating to the payment order procedure lack precision and completeness.
First of all, the Order of February 24, 2022, issued in application of article 1411 of the French Code of Civil Procedure, does not provide for any formal extension of access to documents when service has not been made on the debtor. Consequently, "the opposition is admissible until the expiry of the one-month period following the first act served on the person or, failing that, following the first enforcement measure having the effect of making all or part of the debtor's assets unavailable" (Article 1416 of the Code of Civil Procedure, paragraph 2).
Secondly, no alternative is provided for debtors who do not have access to IT tools. This omission contradicts the recent report published by the Défenseure des droits on February 16, 2022. The aim of this report is to combat the inequalities in access to rights caused by digitized procedures.
Would you like a lawyer specializing in IT contract law to advise you on unpaid invoices? Pierre de Roquefeuil, a lawyer specialized in IT law in Paris, can advise you and ensure that your interests are respected.
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