Court recovery: summons for payment
Verified 24 October 2024 - Directorate for Legal and Administrative Information (Prime Minister)
A creditor may initiate a summons for payment procedure before the court to compel a recalcitrant debtor to pay.
Where the amicable recovery of an unpaid claim has failed, a creditor may initiate proceedings before the court to obtain settlement of the claim. He then assigns his debtor for payment.
The proceedings take place before the court. It is contradictory: it means that each of the parties, the creditor and the debtor, are able to present their arguments.
The court will then determine whether the claim is justified. If so, it shall indicate how the debtor is to pay the debt.
Please note
The procedure for summoning payment must be distinguished from the procedures for interim provision and order for payment. These procedures are quicker and less costly but can only be used when the existence of the claim is undisputed.
The claim for which payment may be sought from a court by way of a summons shall meet the following conditions:
- Certain : the claim must exist beyond doubt. Its existence may be proved by a contract, a purchase order, an invoice, an email or a letter by which the debtor acknowledges his debt.
- Liquid : the amount of the claim can be clearly assessed.
- Due : the claim has expired and all payment terms granted to the debtor have expired.
Warning
It is not possible to initiate a summons for payment procedure against a company or a trader who is the subject of a bankruptcy or reorganization procedure.
The court to be seised depends on the debtor's capacity:
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.
Warning
Before initiating the procedure for the summons for payment of a sum of less than €5,000 before the court of justice, it is obligatory to try to resolve the dispute by friendly demarches. It is not compulsory where a simplified procedure for recovery of small claims was hired and failed.
Between traders, any delay in the payment of a claim shall render payable to the creditor a lump sum of EUR 40 in addition to the amount of the claim.
Where the recovery costs incurred exceed the amount of that lump sum compensation, the creditor may request additional compensation, provided that he can justify it.
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.
Warning
Before initiating the procedure for the summons for payment of a sum of less than €5,000 before the court of justice, it is obligatory to try to resolve the dispute by friendly demarches. It is not compulsory where a simplified procedure for recovery of small claims was hired and failed.
The obligation to be assisted and represented by a lawyer depends on the amount of the claim to be recovered:
Claim less than EUR 10 000
The parties have the option of having a lawyer, but it's not mandatory.
They also have the possibility of being represented and assisted by their Civil partnerships, partners, partners, parents or persons exclusively attached to their personal service or company. In this case, they will have to show a special power.
Claim over EUR 10 000
The creditor has to make himself to represent or assist by a lawyer. The lawyer will therefore be responsible for implementing the summons procedure. The debtor must also have recourse to a lawyer.
Who shall I contact
The procedure is different for the
Judicial Tribunal
Proceedings before the Commercial Court shall begin with the issue to debtor of a subpoena before the court by a commissioner of justice.
Who shall I contact
This summons must be filed in the court at least 15 days prior to hearing date.
To be valid, the assignment must have more than one mandatory particulars :
- Identity of the applicant.
- Appointment of the competent court
- Place, day and time of hearing
- Subject matter of the request
- Statement of facts and legal arguments
- List of supporting documents on a voucher
- If a lawyer is required, designation of the creditor's lawyer.
Proceedings before the court of justice shall begin with the issue to debtor of a subpoena before the court by a commissioner of justice.
Who shall I contact
This summons must be filed in court at least 15 days before the hearing date.
To be valid, thesubpoena must contain several mandatory particulars:
- Appointment of the competent court
- Place, day and time of hearing
- Purpose of the request.
- Summary Statement of Reasons for the Request
- If a lawyer is required, designation of the creditor's lawyer.
The creditor must then file a copy of the summons with the court registry to register the case.
At the end of the hearing, the judge has the possibility to refer the case to a future hearing if the case is not in a state to be tried.
If the state of the case is such that it can be heard, the judge will give his decision or take it under advisement, i.e. he will give his decision at a later date.
In the event of a judgment being taken under advisement, the judge shall inform the hearing of the date of the decision and the manner in which the judgment will be made available to the parties.
FYI
Assignment templates without mandatory representation are available:
The creditor must then to file at the court registry a copy of the summons to the court to “enlist” the case. This so-called "second original" is the copy of the summons sent to the creditor by the Commissioner of Justice after having issued the "first original" to the debtor. It must be filed at least 8 days before the hearing date.
Who shall I contact
At the end of the hearing, the judge has the option of referring the case back to a future hearing if there is no evidence for a decision. If the judgment is taken under advisement, it shall indicate the date of the deliberation and the manner in which the judgment will be made available to the parties.
Commercial Court
Proceedings before the Commercial Court shall begin with the issue to debtor of a subpoena before the court by a commissioner of justice.
Who shall I contact
This summons must be filed in the court at least 15 days prior to hearing date.
To be valid, the assignment must have more than one mandatory particulars :
- Identity of the applicant.
- Appointment of the competent court
- Place, day and time of hearing
- Subject matter of the request
- Statement of facts and legal arguments
- List of supporting documents on a voucher
- If a lawyer is required, designation of the creditor's lawyer.
FYI
Assignment templates without mandatory representation are available:
The creditor must then to file at the court registry a copy of the summons to the court to “enlist” the case. This so-called "second original" is the copy of the summons sent to the creditor by the Commissioner of Justice after having issued the "first original" to the debtor. It must be filed at least 8 days before the hearing date.
Who shall I contact
FYI
Before the commercial court, the time limits for the appearance and delivery of the summons may be reduced by authorization of the president of the court. In such cases, a request should be addressed to the President of the Commercial Court to expedite the examination of the request. The case will then be entered at the first hearing.
No form is required to seek the authorization of the President.
At the end of the hearing, the judge has the option of referring the case back to a future hearing if he considers that the additional material must be submitted before he can rule. Otherwise, it indicates the date of the deliberation, that is, the date on which the judgment will be rendered and how it will be made available to the parties.
FYI
As between traders, any delay in payment of a claim shall render payable to the creditor a lump sum compensation of EUR 40 in addition to the amount of the claim. Where the recovery costs exceed that amount, the creditor may request additional compensation, provided that it is substantiated.
It is not possible to take legal action to recover an unpaid amount beyond a certain period: this is the limitation period.
- Between traders or between traders and non-traders: the requirement is 5 years
- Between a trader and a consumer: the duration is 2 years
Application to the courts
Application for an early summons before the Commercial Court
Fixed-date summons procedure before the court
Document template