Injonction de faire: forcing a business partner to perform its obligation

A supplier who refuses to deliver a machine that was ordered and for which a deposit was paid, an IT contractor who leaves a project unfinished, a franchisor who does not open access to its central purchasing body: in these situations, the commercial partner does not have a money debt to settle, it has an obligation to perform. Claiming a sum solves nothing; what must be obtained is the promised conduct. This guide explains how to force a counterparty to keep its commitment, clearly distinguishing this step from the order for payment (injonction de payer), setting out the procedural routes available since the 2020 reform, and showing how the daily penalty payment (astreinte) turns a court decision into a genuinely effective lever of pressure.

Order to perform (injonction de faire): a notion to be restated since 2020

The term order to perform (injonction de faire) now covers a different reality from that of a few years ago. There used to be a specific, simplified procedure, provided for in Articles 1425-1 to 1425-9 of the French Code of Civil Procedure, which allowed a claimant to apply to the district court (tribunal d'instance) to compel its opponent to perform an obligation arising from a contract, mainly in consumer disputes.

This stand-alone procedure has been abolished. Decree No. 2019-1333 of 11 December 2019, which entered into force on 1 January 2020, repealed those articles as part of the reform of civil procedure and the merger of the tribunal d'instance and the tribunal de grande instance into a single judicial court (tribunal judiciaire). To speak today of an “order to perform procedure” as a specific form to be filed at the court registry is therefore inaccurate.

This does not mean that the mechanism has disappeared. The idea remains entirely current: a creditor can still ask the judge to order its debtor to perform in kind what it owes. Simply, that request now goes through the ordinary procedural routes, summary proceedings (référé) and proceedings on the merits, relying on the provisions of the French Civil Code on enforcement in kind. It is this reality, more flexible but also more technical, that this guide sets out.

Order to perform or order for payment: two opposite logics

Confusion between the two notions is frequent, whereas the distinction is structuring. It stems from the very nature of the obligation concerned.

The order for payment concerns a sum of money

The order for payment (injonction de payer), governed by Articles 1405 to 1425 of the French Code of Civil Procedure, applies where the creditor claims payment of a specific debt, contractual or statutory in nature, the amount of which is certain. An unpaid supplier, a landlord claiming rent, a contractor whose invoice has not been honoured: all are pursuing payment of a sum.

This procedure has a particular feature: it is non-adversarial in its first phase. The judge examines the petition on the documents, without summoning the debtor, and makes an order. Only afterwards, if the debtor lodges an objection, does the adversarial debate open. It is a rapid tool, designed for debts unlikely to give rise to serious dispute. The course of this procedure applied to invoices between professionals is detailed in our article on the order for payment to recover a B2B invoice.

The order to perform concerns conduct

The order to perform, by contrast, concerns an obligation to do or not to do something: deliver goods, complete works, transfer a customer file, comply with an exclusivity clause, stop an act of unfair competition, return equipment. Here, no sum is claimed as the principal relief. What the creditor wants is performance in kind, that is, concrete receipt of the promised service, not its monetary equivalent.

This difference of object carries heavy procedural consequences. An obligation to do something does not lend itself to a purely documentary examination like a quantified debt. It often requires assessing whether performance is still possible, whether it has become disproportionate, and defining precisely what the debtor must accomplish. The adversarial principle is therefore central, which explains why the order to perform does not benefit from an accelerated non-adversarial route equivalent to the order for payment.

Bearing this contrast in mind is decisive when choosing a strategy: claiming money and claiming conduct do not engage the same provisions, the same courts under the same conditions, or the same levers of enforcement.

The legal basis: enforcement in kind

The foundation of any order to perform is found in Article 1221 of the French Civil Code, which stems from the 2016 reform of contract law.

The creditor of an obligation may, after formal notice, seek its performance in kind unless such performance is impossible or there is a manifest disproportion between its cost to the debtor and its benefit to the creditor.

Three lessons emerge from this provision.

First, the prior formal notice (mise en demeure) is a compulsory step. Before applying to the judge, the creditor must have formally called on its partner to perform, setting a reasonable time limit if possible. A registered letter with acknowledgement of receipt is the minimum, and its absence may weaken the whole step. This formal notice marks the starting point of the established breach. On the advantage of having this document served by a ministerial officer rather than by simple letter, see our analysis of formal notice by commissaire de justice (bailiff).

Second, performance in kind is a right, but not an absolute right. It is excluded in case of impossibility (the unique item has been destroyed, the service can no longer physically be carried out) and in case of manifest disproportion between the cost to the debtor and the benefit to the creditor. This latter exception, introduced in 2016, requires an economic assessment: a judge may refuse to order the demolition and reconstruction of a structure affected by a minor defect if the creditor's interest does not justify a crushing cost for the debtor.

Finally, a complementary mechanism appears in Article 1222 of the French Civil Code: the right of replacement. After formal notice, the creditor may have the obligation performed by a third party itself, at the debtor's expense, and apply to the court for reimbursement of the sums spent. Consider a principal whose subcontractor refuses to complete a package of works: rather than wait for a decision requiring performance, it may have the site completed by another firm and then claim the cost from the defaulting party. This route is sometimes quicker and safer than direct compulsion, especially where the relationship of trust has broken down.

The procedural routes for compelling a commercial partner

Since the disappearance of the stand-alone procedure, two main paths make it possible to obtain an order to perform: summary proceedings and proceedings on the merits. The choice depends essentially on whether or not the obligation is seriously contestable.

Summary proceedings, the fast route

Summary proceedings are the urgent procedure par excellence. Before the commercial court (tribunal de commerce), which has jurisdiction over disputes between traders and commercial acts, Article 873 of the French Code of Civil Procedure is central. Its second paragraph authorises the president to order performance of the obligation even if it is an obligation to do something, where that obligation is not seriously contestable. Before the judicial court, Article 835, paragraph 2, of the same code gives an equivalent power. The two paragraphs of this provision and how they fit with the other urgent routes are the subject of a separate discussion in our article on the summary proceedings of Article 835 of the Code of Civil Procedure.

The key condition is therefore the absence of serious dispute. If the obligation results from a clear contract, if the breach is manifest and if the debtor raises no credible defence, summary proceedings make it possible to obtain a decision within a few weeks. Take the example of a distributor bound by an exclusive supply contract whose supplier, without reason, stops all deliveries: as the contractual obligation is clear, the judge in summary proceedings may order deliveries to resume.

Conversely, as soon as there is a genuine discussion on the existence of the obligation, its extent or a possible reciprocal non-performance, the judge in summary proceedings declares that he or she has no power to act on the ground that the dispute is serious, and refers the parties to the merits.

Proceedings on the merits

Where the dispute calls for in-depth debate (interpretation of an ambiguous clause, assessment of a reciprocal breach, a defence of non-performance raised by the opponent), the merits route is required. It is longer but allows a final decision resolving all the questions.

Before the commercial court, the case is started by summons (assignation), goes through a pre-trial phase, then leads to an oral hearing and a judgment. It is in this setting that the judge will fully assess the limits of Article 1221, in particular any manifest disproportion, and that he or she may order performance in kind together with the measures necessary to make it effective.

A combination is moreover frequent in practice: bringing summary proceedings to obtain a provisional measure quickly, while summoning on the merits to secure a lasting solution. This approach avoids letting the breach produce its effects during the months of proceedings.

The astreinte: the financial lever of the order to perform

Ordering a partner to perform is pointless if it ignores the decision. This is where the astreinte (daily penalty payment) comes in, without which an order to perform often remains a dead letter. The expression order to perform with astreinte describes precisely this combination: the order to perform, coupled with a sum payable per day, week or month of delay.

A mechanism distinct from damages

The astreinte is governed by Articles L131-1 to L131-4 of the French Code of Civil Enforcement Procedures. Article L131-1 lays down the principle: any judge may, even of his or her own motion, order an astreinte to ensure the enforcement of his or her decision. It is an ancillary pecuniary order, calculated according to the delay, whose sole purpose is to overcome the debtor's resistance.

An essential point stressed by Article L131-2: the astreinte is independent of damages. It does not compensate a loss, it penalises inertia. A creditor can therefore obtain both the astreinte to force performance and, separately, compensation for the loss caused by the delay or non-performance. Confusing the two is a classic error that weakens a claim in court.

Provisional astreinte and final astreinte

The law distinguishes two forms of astreinte. The provisional astreinte, the most common, may be revised or cancelled by the judge when it is liquidated, according to the debtor's conduct and the difficulties it encountered. The final astreinte, rarer, cannot in principle be modified as to its rate, which presupposes that a provisional astreinte was first ordered. Article L131-4 specifies that the astreinte is final only where the judge has expressly characterised it as such.

Liquidation, an indispensable step

An astreinte that has been ordered is not automatically payable. It must be liquidated, that is, quantified by the judge according to the delay actually found. It is the enforcement judge (juge de l'exécution) who carries out this liquidation, unless the court that ordered the astreinte reserved that power to itself. At this stage, the judge takes account of the debtor's conduct and of any extraneous causes that delayed performance.

In practical terms, a partner ordered to deliver equipment within fifteen days, subject to an astreinte of several hundred euros per day of delay, knows that each day of inertia increases its debt. This financial pressure is often more dissuasive than the principal order itself, since it grows mechanically with time. This is what makes the astreinte the decisive tool for making an order to perform genuinely binding.

Practical course of the step

For a business owner faced with a defaulting partner, the course to follow can be summarised in a logical sequence.

• Gather the evidence of the obligation: signed contract, purchase orders, email exchanges, accepted general terms, any element establishing that the partner had undertaken to perform.
• Send a formal notice, by registered letter with acknowledgement of receipt, recalling the obligation, recording the breach and setting a reasonable time limit for performance. This step is required by Article 1221 of the French Civil Code and conditions the admissibility of the step.
• Assess whether the obligation is seriously contestable, in order to choose between summary proceedings (clear obligation and manifest breach) and proceedings on the merits (dispute requiring in-depth debate).
• Apply to the competent court, in principle the commercial court for a dispute between traders, by summons, asking both for performance in kind and for an astreinte to be ordered.
• Once the decision is obtained, serve it on the debtor by commissaire de justice (bailiff), which starts the time limits and the effects of the astreinte.
• If the breach persists, apply to the enforcement judge to liquidate the astreinte and, where appropriate, begin the available measures of enforcement.

Each step deserves careful preparation. The drafting of the formal notice and the formulation of the claims largely determine the outcome: an imprecise order, which does not define exactly what the debtor must accomplish, will be difficult to enforce and to sanction by astreinte.

Anticipating when drafting the contract

The best order to perform is the one that does not have to be requested. Several contractual clauses strengthen the creditor's position upstream. A clause describing precisely the obligations of each party makes it easier to show the breach. A penalty clause, distinct from the astreinte, fixes in advance a sum payable in case of non-performance and avoids having to prove the loss. A jurisdiction clause, valid between traders, secures the court seised.

These stipulations do not remove recourse to the judge, but they reduce the defaulting partner's room to dispute and speed up the obtaining of a favourable decision. In business law, the strength of a contract is measured by its capacity to be enforced under compulsion.

Conclusion

The order to perform is no longer an isolated procedure to be ticked on a form; it is the result of a procedural strategy based on enforcement in kind under Article 1221 of the French Civil Code, implemented through summary proceedings or the merits, and made effective by the astreinte of Articles L131-1 et seq. of the French Code of Civil Enforcement Procedures. The dividing line with the order for payment is clear: payment of a sum and performance of conduct are not compelled in the same way, and confusing the two leads to badly directed claims.

The position that emerges is clear: against a recalcitrant partner, an order to perform without an astreinte is a paper tiger. It is the increasing financial pressure that overcomes resistance, not the order itself. Before any litigation, two reflexes are required: take care over the prior formal notice, since its absence may cause the claim to fail, and systematically request an astreinte set at a genuinely dissuasive amount. Have counsel validate the exact characterisation of the obligation and the choice of court: it is at this stage that the effectiveness of the procedure is won or lost.

Frequently asked questions

What is the difference between an order to perform and an order for payment? The order for payment, governed by Articles 1405 to 1425 of the French Code of Civil Procedure, concerns recovery of a specific sum of money and follows a rapid route that is non-adversarial in its first phase. The order to perform concerns performance of conduct (delivering, completing, returning, stopping an act) and rests on enforcement in kind under Article 1221 of the French Civil Code. As it requires adversarial debate, it goes through summary proceedings or proceedings on the merits, with no equivalent accelerated route.

Does the order to perform procedure still exist? The stand-alone procedure of former Articles 1425-1 to 1425-9 of the French Code of Civil Procedure was repealed by Decree No. 2019-1333 of 11 December 2019, which entered into force on 1 January 2020. The mechanism nonetheless remains: an order to perform is now obtained through summary proceedings (Article 873 of the Code of Civil Procedure before the commercial court) or proceedings on the merits, on the basis of Article 1221 of the French Civil Code.

Is a formal notice required before applying to the judge? Yes. Article 1221 of the French Civil Code expressly makes the pursuit of performance in kind subject to a prior formal notice. In practice, it takes the form of a registered letter with acknowledgement of receipt recalling the obligation, recording the breach and setting a reasonable time limit. Its absence seriously weakens the claim.

How does the astreinte work in an order to perform? The astreinte, provided for in Articles L131-1 to L131-4 of the French Code of Civil Enforcement Procedures, is a sum payable by the debtor for each period of delay in performance. It is independent of damages and aims solely to overcome the debtor's resistance. It must be liquidated by the judge, generally the enforcement judge, in order to become payable according to the delay actually found.

Can an order to perform be obtained in summary proceedings? Yes, provided that the obligation is not seriously contestable. Article 873, paragraph 2, of the French Code of Civil Procedure authorises the president of the commercial court to order performance of an obligation, even an obligation to do something, and Article 835, paragraph 2, gives the same power before the judicial court. As soon as a serious dispute exists, the judge in summary proceedings refers the parties to the merits.

Can performance be compelled if it costs the debtor a great deal? Not always. Article 1221 of the French Civil Code excludes enforcement in kind in case of impossibility and in case of manifest disproportion between the cost to the debtor and the benefit to the creditor. The judge makes an economic assessment, and may refuse a performance that would be ruinous for a modest benefit, directing the creditor instead towards damages.

Which court should be seised for a dispute between companies? For a dispute between traders or concerning a commercial act, the commercial court has jurisdiction in principle, in summary proceedings as on the merits. A jurisdiction clause, valid between traders, may designate a specific court. The case is brought by summons served by a commissaire de justice (bailiff).