Judicial recovery: interim relief in civil or commercial courts

Verified 27 November 2024 - Directorate of Legal and Administrative Information (Prime Minister), Ministry of Justice

What to do when a person or business has not paid a sum of money? If the situation is of a certain evidentiary nature, it is possible to request an advance on the claim via the interim measures procedure. This allows the judge to order early payment of an advance on the amount due.

This procedure avoids the complexity and slowness of the process of summoning payment before the courts to obtain payment of a sum of money.

It can be implemented if the claim shall be considered as obvious. That is, the claim must not be seriously questionable. Thus, the claim must be certain and its amount must be determined. For example, the judge must not have to interpret the terms of the contract or have to assess the amount of the sums due.

The judge's decision will be rendered promptly (within approximately one month) in the form of an order res judicata . She will be executive : the debtor will therefore be ordered to pay immediately.

FYI  

The order for interim measures is an interim decision. Thus, if the debtor initiates proceedings before the court, the court may decide differently from the interim order. It is very rare for the debtor to go to court.

The competent court depends on the debtor's capacity:

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Merchant or commercial business

Where the debtor is a trader or a commercial business (LOCK: titleContent, SARL: titleContent, etc.), the commercial court.

The court having jurisdiction shall be either that of the debtor's registered office or that of the place of performance of the service giving rise to the claim.

Who shall I contact

Other

The matter should be referred to the court of law the place of residence of the debtor (private customer, business of liberal practice (SEL), etc.) or the place of performance of the service giving rise to the claim.

Who shall I contact

This procedure may be applied to any type of claim, irrespective of its origin, against a natural person or a business

It is necessary to demonstrate the existence of a well-established claim: the claim must be obvious, i.e. not seriously contestable. This is the case, for example, with purchase and delivery orders signed by the customer, which prove agreement on the price to be paid and on the quality of the products delivered.

On the other hand, a claim whose precise amount is subject to assessment, or whose due date is not clearly defined, or which requires an interpretation by the court may be seriously challenged.

He's no need to justify an emergency situation in order to be able to request an interim measure.

In order to bring an action for interim relief, the creditor must prepare a file

They must also address a Commissioner of Justice acting within the jurisdiction of the competent court.

The debtor will send the debtor a subpoena which must include the following particulars:

  • Identity and contact details of the parties
  • Amount of sums claimed
  • Basis of claim and supporting documents
  • Date, time and place of hearing

FYI  

The creditor must attach all supporting documents, for example: the order form or quotation signed by the customer, the invoice mentioning the agreed settlement date, the delivery note, the general conditions of sale accepted by the customer or the collection letters.

The creditor and the debtor each defend their arguments. The use of a lawyer is mandatory when the dispute exceeds a certain amount:

Claim less than € 10 000

The use of a lawyer is not not obligatory.

The creditor can defend his case alone. He or she also has the opportunity to be represented and assisted: for example, a spouse, parent or person of the company. To do this, we must give a special power.

Debt exceeding €10,000

The parties must be assisted and represented by a lawyer:

Who shall I contact

The creditor defends his case in the presence of the debtor, who himself puts forward his arguments.

What happens if the application is accepted?

The judge grants an advance on the amount of the sum due, also known as the "provision". It is also possible to charge interest for late payment. However, it is not possible to request damages.

The decision of the judge hearing the application for interim measures remains provisional. The amount may be changed during the proceedings before the court hearing the case if new evidence is submitted to it.

The creditor must then signify the order made by the judge hearing the application for interim measures against the debtor. He must then apply to a Commissioner of Justice who will give the debtor the order made:

What happens if the application is rejected?

Where the creditor has been unsuccessful, he may refer the matter to the Court of Appeal. It shall have a period of 15 free days after the notification or the significance of judgment.

The debtor may also appeal against the judgment within the same period.

Warning  

An appeal against the interim order is not possible where the dispute is less than or equal to €5,000,

If the creditor is not satisfied with the decision on appeal or if the claim is less than €5,000, the creditor may to assign the debtor as a payment before the court (not the president).