Summary proceedings for useful measures (Article 835 CPC): obtaining relief before any trial on the merits

A commercial tenant stops paying rent, an occupier remains in the premises after termination has taken effect, a debtor belatedly disputes invoices that were never queried on receipt, a neighbouring building site weakens the structure of a property held in a portfolio. In each of these situations, bringing proceedings on the merits exposes the creditor or institutional landlord to a gap of several quarters between the occurrence of the loss and the first enforceable decision. Article 835 of the French Code of Civil Procedure (code de procédure civile, CPC) offers an intermediate response: obtaining from the summary proceedings judge (juge des référés), before any trial on the merits, a protective measure, an order putting an end to a disturbance, or an interim payment (provision). This guide sets out the conditions for each of the two paragraphs, the interplay with the other urgent routes (Article 145 CPC, fixed-day summons, accelerated proceedings on the merits, protective attachment) and above all the chronology of the steps: which step starts which time limit, which time limit is fatal, and at what point the measure becomes enforceable against the debtor or the occupier.

What Article 835 CPC covers, and what it does not

The expression "référé mesures utiles" is borrowed from administrative litigation, where Article L. 521-3 of the French Code of Administrative Justice allows the summary proceedings judge to order any useful measures even before any administrative decision. Before the ordinary courts, the basis is different and more demanding: Article 835 CPC, resulting from Decree No. 2019-1333 of 11 December 2019, which entered into force on 1 January 2020 and which took over, with new numbering, former Articles 808 and 809.

"The president of the judicial court (tribunal judiciaire) or the protection judge (juge du contentieux de la protection) within the limits of his or her jurisdiction may always, even where there is a serious dispute, order in summary proceedings such protective measures or measures to restore the previous position as are required, either to prevent imminent damage or to put an end to a manifestly unlawful disturbance. Where the existence of the obligation is not seriously open to dispute, they may award an interim payment to the creditor, or order performance of the obligation even if it is an obligation to do something."

Two paragraphs, two distinct rationales. The first opens the protective summary procedure (référé conservatoire) and the summary procedure for restoring the previous position, which apply irrespective of whether there is a serious dispute but are subject to the manifest nature of the unlawfulness or the imminence of the damage. The second opens the interim payment procedure (référé-provision), which conversely requires an obligation whose existence is not seriously open to dispute, but requires neither urgency nor unlawfulness.

This structure differs from that of Article 834 CPC, which makes the measure subject to urgency and the absence of a serious dispute. In practice, summonses often cite both provisions, but the legal basis determines what must be demonstrated: citing Article 834 requires urgency to be established, citing Article 835 paragraph 1 requires the disturbance or the imminent damage to be established, and citing paragraph 2 requires it to be shown that the obligation is not seriously open to dispute.

Before the commercial court (tribunal de commerce), the mechanism is transposed in Articles 872 and 873 CPC, the wording of which is symmetrical. The creditor of a commercial company who applies to the president of the commercial court for an interim payment therefore acts on the basis of Article 873, paragraph 2, of the Code of Civil Procedure. An error in the provisions cited is not necessarily fatal, but it signals an approximation that the opposing party will exploit.

One distinction should be made at the outset: the protective measures of Article 835 are not to be confused with the protective measures of Book V of the French Code of Civil Enforcement Procedures (code des procédures civiles d'exécution, CPCE). Protective attachment and the provisional judicial charge over property (hypothèque judiciaire provisoire) fall under Article L. 511-1 CPCE and the authorisation of the enforcement judge (juge de l'exécution), on the twofold criterion of a claim that appears well founded in principle and of circumstances threatening its recovery. The summary proceedings judge has no jurisdiction to authorise a protective attachment. Confusing the two routes costs a hearing.

Paragraph 1: manifestly unlawful disturbance and imminent damage

Establishing a manifestly unlawful disturbance

A manifestly unlawful disturbance is defined as the obvious breach of a rule of law or of a legally protected situation. The adverb governs the analysis: the unlawfulness must be apparent without detailed legal argument. Where the characterisation requires choosing between two defensible readings of a contract or a provision, the disturbance ceases to be manifest and the claim belongs to the merits.

The recurring situations for an institutional landlord or an investor are identifiable:

• an occupier remaining in the premises after the termination clause (clause résolutoire) has taken effect or after expiry of the lease without a right of renewal
• subletting or making the premises available to a third party in breach of a prohibitive clause of the lease
• carrying on an activity not authorised by the contractual use of the premises, amounting to a de facto change of permitted use (déspécialisation)
• works carried out by the tenant affecting the structure, the façades or the common parts without the authorisation of the landlord or of the general meeting
• occupation of common parts, or installation of a sign or advertising device that does not comply with the co-ownership regulations (règlement de copropriété)
• breach of a non-competition, exclusivity or confidentiality clause contained in a shareholders' agreement or a distribution contract

In these situations, the summary proceedings judge may order eviction, cessation of the activity, removal of the installations or restoration of the previous position, in each case subject to a penalty payment (astreinte) on the basis of Article L. 131-1 of the French Code of Civil Enforcement Procedures. A penalty payment so ordered is provisional unless otherwise stated; its liquidation falls to the enforcement judge, or to the judge who ordered it if that judge has reserved the power to do so. The characterisation of an occupier without right or title and the applicable basis for summary proceedings are set out in our article on the eviction of an occupier without right or title.

Preventing imminent damage

Imminent damage operates earlier: it has not yet occurred but is certain to occur within a short time if no measure is ordered. The provision allows a forward-looking reading here, particularly suited to real estate assets: progressive defects affecting the stability of a structure, gradual water ingress, the risk of a façade element collapsing, adjoining building works carried out without precautions.

The measure ordered is then a protective one: propping, making safe, suspension of works, consignment of funds. It fits naturally with an investigative measure ordered on the basis of Article 145 CPC, so that a court-appointed expert report is often requested in the same summons as the measure restoring the previous position.

A serious dispute is not an obstacle

Paragraph 1 states that the judge may rule "even where there is a serious dispute". This wording must be handled with care. It does not mean that the judge resolves the dispute: it means that the judge may order a protective measure or a measure restoring the previous position even though the substance of the right is in issue, provided that the disturbance is manifestly unlawful or the damage is imminent. The existence of a debate on the extent of a contractual obligation therefore does not prevent the suspension of conduct whose unlawfulness is itself obvious.

Paragraph 2: the interim payment, a cash-flow lever for the creditor

An obligation not seriously open to dispute

The interim payment in summary proceedings is the tool most directly useful to the institutional creditor. The provision makes the measure subject neither to urgency nor to a risk to recovery. It requires only that the existence of the obligation is not seriously open to dispute. The amount of the interim payment may reach the whole of the claim whose existence is established: an interim payment is not, by nature, a fraction of the debt.

The claims that lend themselves to this route share a common feature: they rest on a clear contractual title and an indisputable statement of account. Rent and service charge arrears arising from a written lease and properly issued calls for funds, occupation indemnities following termination, balances of invoices not disputed within the usual time, the balance of a shareholder's current account whose repayment was duly requested, unpaid instalments of a loan whose acceleration (déchéance du terme) was validly declared.

Conversely, the interim payment procedure is closed where the claim requires an assessment: valuation of an unliquidated loss, enforcement of an earn-out clause whose accounting parameters are disputed, set-off invoked against a reciprocal claim that is itself plausible. A plea of non-performance (exception d'inexécution) raised by the debtor, if substantiated, is generally sufficient to establish a serious dispute.

Obligations to do and obligations to pay

Paragraph 2 is not limited to payment. It allows the judge to "order performance of the obligation even if it is an obligation to do something". This limb is under-used. It makes it possible to obtain the delivery of corporate documents, the production of accounting records due under a contract, the return of equipment or stock, the regularisation of a registration, or the lifting of an objection. Coupled with a penalty payment, it produces a behavioural effect that is often greater than a monetary judgment.

Preparing the file to close off any dispute

The success of an interim payment application is determined before the summons. The file must establish, document by document, the title to the claim, its due date, its amount and the absence of any prior dispute. A detailed formal notice, left unanswered or followed by a reply that does not dispute the principle, is a decisive element. An exchange of emails in which the debtor asks for a payment schedule amounts to implied acknowledgement of the debt. Conversely, a dispute raised for the first time at the hearing, with no prior written trace, loses much of its force. The condition of the absence of a serious dispute and the stages of the procedure are dealt with separately in our article on interim payments in summary proceedings.

The decision timetable: which step starts which time limit

The operational value of summary proceedings lies in their chronology. Read as a decision timetable, the sequence breaks down as follows.

Before the summons. A landlord who intends to rely on a termination clause must have a payment demand (commandement de payer) served that expressly refers to the clause. Article L. 145-41 of the French Commercial Code requires the demand to reproduce the clause and to give the tenant a period of one month: the clause takes effect only one month after a payment demand that has remained unsuccessful. This month cannot be shortened. Any summons served before it expires exposes the claim to dismissal. For commercial debts, a formal notice is not a condition of admissibility of the interim payment application, but it starts interest running and deprives the debtor of the argument of surprise.

Bringing the matter before the court. The claim is brought by summons to a summary proceedings hearing, in accordance with Article 485 CPC. The hearing date is provided by the registry of the court seised. Article 486 CPC requires the judge to ensure that sufficient time has elapsed between the summons and the hearing for the defendant to have been able to prepare a defence: too short an interval exposes the claim to adjournment, that is to say the loss of the speed sought.

Hour-to-hour summary proceedings. Where the case requires speed, Article 485, paragraph 2, CPC allows the judge to authorise a summons for a specified hour, even on public holidays or non-working days. The application for authorisation must establish the need for a derogatory timetable. This route is the reference tool where imminent damage affects a real estate asset.

The hearing and the order. The summary proceedings judge rules by an order which, under Article 489 CPC, is provisionally enforceable. Where necessary, the judge may order that enforcement take place on the original (minute) alone, which allows enforcement without waiting for the enforceable copy (grosse) to be issued. Article 488 CPC recalls that the order does not have the force of res judicata on the merits and may be modified or withdrawn only in the event of new circumstances.

The appeal. Article 490 CPC sets the time limit for appeal at fifteen days from service. An appeal does not suspend enforcement. An application to stay provisional enforcement before the First President remains conceivable, but on restrictive conditions requiring a serious ground for annulment or reversal and manifestly excessive consequences.

Enforcement. The order must be served before any enforcement measure. As regards eviction, Article L. 412-1 of the French Code of Civil Enforcement Procedures imposes a period of two months after the order to vacate the premises where the eviction concerns inhabited premises, and Article L. 412-6 establishes the winter moratorium between 1 November and 31 March. These protections do not, as a rule, apply to premises used exclusively for commercial purposes and not inhabited: the eviction of a commercial tenant can therefore take place on a markedly shorter timetable than that of a residential occupier. This distinction governs the strategy of an institutional landlord holding a mixed-use asset.

The debtor's counterweight. The summary proceedings judge retains the power to grant time to pay for up to two years under Article 1343-5 of the French Civil Code and, in commercial lease matters, to suspend the effects of the termination clause for as long as the time granted is respected. Anticipating this risk is part of preparing the file: a payment schedule proposed by the creditor before the hearing often neutralises the tenant's good faith argument.

Combining Article 835 with the other urgent routes

With Article 145 CPC

The evidence-gathering summary procedure of Article 145 CPC makes it possible to obtain, before any trial, an investigative measure intended to preserve or establish evidence of facts on which the outcome of a dispute may depend. It does not make it possible to obtain a judgment against the other party. The two bases may be combined in a single summons where the protective measure must be ordered immediately and the expert report will then determine liability, a classic configuration in construction and defects litigation.

With protective attachment and the provisional judicial charge

The interim payment procedure provides a provisional enforceable title; protective attachment protects the assets before any title exists. A creditor facing a debtor whose solvency is deteriorating has an interest in combining the two: an application to the enforcement judge on the basis of Article L. 511-1 CPCE to register a provisional judicial charge or to carry out a protective attachment of debts owed to the debtor, followed by a summons for an interim payment to convert the protective measure into a definitive one. The order of operations matters: a protective attachment carried out before any formal notice preserves the element of surprise. The two cumulative conditions for protective attachment and the regime of judicial authorisation are detailed in our article on securing a claim before judgment.

With accelerated proceedings on the merits and the fixed-day summons

The Decree of 11 December 2019 replaced the former procedures "in the form of summary proceedings" with accelerated proceedings on the merits. They are available only in the cases where a special provision so provides, and result in a decision having the force of res judicata on the merits. Thus, Article 19-2 of Law No. 65-557 of 10 July 1965 now refers to this procedure to obtain payment of the not yet due provisional instalments of the forecast budget after an unsuccessful formal notice, the co-ownership association (syndicat des copropriétaires) otherwise retaining the interim payment route for sums that are due and unpaid.

The fixed-day summons (assignation à jour fixe) of Article 840 CPC, on authorisation of the president of the judicial court, makes it possible to obtain a decision on the merits within a shortened timetable. It should be preferred to summary proceedings where the dispute is serious but waiting for an ordinary timetable is economically unacceptable.

With arbitration and with collective insolvency proceedings

Article 1449 CPC preserves the jurisdiction of the State court judge in summary proceedings, for provisional or protective measures, for as long as the arbitral tribunal has not been constituted. An arbitration clause (clause compromissoire) therefore does not close off access to Article 835 before constitution.

The opening of collective insolvency proceedings (procédure collective), by contrast, has an immediate and radical effect. Article L. 622-21 of the French Commercial Code interrupts and prohibits any action for payment of a sum of money arising prior to the judgment opening the proceedings. The interim payment application becomes inadmissible for prior claims; the creditor must instead file a proof of claim (déclaration de créance) in the liabilities, within the two-month period following publication of the opening judgment provided for by Article L. 622-24 of the same Code. As regards the lease, Article L. 622-14 prohibits the landlord from seeking termination for non-payment of rent falling due before the opening judgment and makes an action for later rent subject to the expiry of a period of three months from the opening judgment. For an institutional landlord, monitoring publications in the BODACC (French official gazette of civil and commercial announcements) determines whether the action is viable.

The blind spots that cause summary proceedings to fail

The first is an error of characterisation. Arguing that a disturbance is manifestly unlawful when its unlawful nature depends on the interpretation of an ambiguous clause leads to referral to the merits, with lost time and an order dismissing the claim that weakens the negotiating position.

The second concerns the nature of the measure requested. The summary proceedings judge cannot order a measure whose effect would be irreversible and would amount to deciding the merits. A claim for judicial termination of the lease belongs to the merits; only the finding that a termination clause has taken effect belongs to summary proceedings.

The third is the risk of restitution. As the order does not have the force of res judicata on the merits, an interim payment received is subject to restitution if the judge on the merits reaches a different outcome. Enforcement of a summary order is at the creditor's risk, and the creditor must make good the loss caused if the title is later set aside. Where the debtor presents an uncertain solvency profile, the immediate receipt of a substantial interim payment can turn into exposure.

The fourth is procedural: territorial jurisdiction, standing of the property manager (syndic) or of the landlord's agent, validity of service, exact reproduction of the termination clause in the payment demand. These formal checks account for a significant share of dismissals.

Conclusion

Article 835 CPC is not just one urgent procedure among others: it is the only mechanism that makes it possible to obtain, without a decision on the merits, an enforceable title immediately enforceable against the debtor or the occupier. Its effectiveness depends less on the text than on the quality of the preparation. The disturbance must be documented by a report of a commissaire de justice (bailiff) before the summons, the claim must be beyond dispute on the documents and not merely well founded, and the timetable of the preliminary steps must have been complied with to the day.

Our approach is as follows: for an institutional landlord or a professional creditor, the summary procedure of Article 835 should be treated as a tool for managing exposure, and not as a reaction to non-payment. This requires choosing in advance, from the first payment incident, between three routes with different effects: the protective summary procedure of paragraph 1 to neutralise a disturbance and recover control of the asset, the interim payment of paragraph 2 to obtain a title and trigger enforcement, and protective attachment before the enforcement judge to freeze the assets before any discussion.

Before commencing proceedings, have the chain of preliminary steps audited: date of the payment demand, accuracy of the reproduction of the termination clause, updated statement of the sums due, absence of any prior written dispute, and verification that no collective insolvency proceedings have been opened or are imminent against the debtor. A single one of these points left insecure turns a summary proceedings hearing into a referral to the merits.

Frequently asked questions

What is the difference between Article 834 and Article 835 of the CPC? Article 834 CPC makes the measure subject to two cumulative conditions: urgency and the absence of a serious dispute. Article 835 CPC does not require urgency. Its paragraph 1 allows a protective measure or a measure restoring the previous position even where there is a serious dispute, provided that a manifestly unlawful disturbance or imminent damage is established. Its paragraph 2 allows an interim payment to be awarded or performance of an obligation to do something to be ordered where the obligation is not seriously open to dispute. In practice, summonses often cite both provisions, but what must be demonstrated differs according to the basis relied on.

Can an interim payment application cover the whole of the claim? Yes. The interim payment awarded on the basis of Article 835, paragraph 2, CPC may reach the whole of the amount whose existence is not seriously open to dispute. The judge is not required to reserve a fraction for the judge on the merits. However, the sum received remains an interim payment: as the order does not have the force of res judicata on the merits under Article 488 CPC, it is subject to restitution if the judge on the merits reaches a different outcome.

How long does it take to obtain a summary order? The time depends on the court seised and on the hearing date provided by the registry, Article 486 CPC requiring sufficient time between the summons and the hearing. Where the case requires speed, Article 485, paragraph 2, CPC allows an application for authorisation to summon for a specified hour, including on public holidays. The order is provisionally enforceable under Article 489 CPC, and the judge may authorise enforcement on the original alone.

Can a landlord obtain the eviction of a commercial tenant in summary proceedings? Yes, where the termination clause has taken effect. The landlord must first have a payment demand served that refers to the clause and reproduces its text, and then wait for the one-month period provided for by Article L. 145-41 of the French Commercial Code to expire. The summary proceedings judge then records that the clause has taken effect and orders eviction. The judge nevertheless retains the power to grant time to pay for up to two years under Article 1343-5 of the French Civil Code and to suspend the effects of the clause while that time is respected.

Does the two-month period after an order to vacate apply to commercial premises? Article L. 412-1 of the French Code of Civil Enforcement Procedures imposes a period of two months after the order where the eviction concerns premises inhabited by the person evicted or by an occupier claiming through that person. The winter moratorium of Article L. 412-6 follows the same logic. Premises used exclusively for commercial purposes and not inhabited fall outside this scope. The nature of the premises must therefore be verified in advance, in particular for mixed-use buildings.

What becomes of the interim payment application if the debtor is placed in judicial reorganisation? Article L. 622-21 of the French Commercial Code, applicable to judicial reorganisation (redressement judiciaire) by cross-reference, interrupts and prohibits any action for payment of a sum of money arising prior to the opening judgment. The application for an interim payment becomes inadmissible for prior claims. The creditor must file its proof of claim in the liabilities within two months following publication of the opening judgment, in accordance with Article L. 622-24. As regards the lease, Article L. 622-14 prohibits pursuing termination for rent due before the opening judgment.

Does an arbitration clause prevent an application to the summary proceedings judge? No, as long as the arbitral tribunal has not been constituted. Article 1449 CPC provides that the existence of an arbitration agreement does not prevent a party from applying to a State court for an investigative measure or a provisional or protective measure. Once the arbitral tribunal has been constituted, jurisdiction to order provisional measures in principle passes to it, subject to measures of compulsory enforcement, which remain within the jurisdiction of the State court.