Maine Divorce Law Blog

Termination of the lease and repossession of abandonment: a recast procedure

Under the provisions of an Act of 22 December 2010, the landlord may, where the elements it suggests that housing was abandoned by its occupants, to the tenant on notice to prove that he actually occupies the slot. This notice must be made by a bailiff. In the absence of response from the tenant within one month of notification, the officer must observe the state of abandonment of housing. It provides a report containing an inventory of property left behind with their approximate value. This record allows the lessor to a finding by the trial judge to terminate the lease and repossession. Article 14-1 of the Law of 6 July 1989 on improving relations rental amended by Law of 22 December 2010 referred to above states that "the termination of the lease is recognized by the judge in the conditions provided by regulation." A decree of 10 August 2011 organizes the means of terminating the residential lease and the resumption by the landlord of the premises abandoned.

Article 1 of the decree states that the application for a declaration of termination of the lease for the recovery of abandoned premises "may be made by motion." The procedure is simplified because the court decides so without debate. Termination of the lease following a standard procedure, by subpoena, however, is still possible.

If the evidence provided by the landlord that the property was abandoned by its occupants, the judge of the district court found the termination of the lease and ordered the resumption of the premises. Documents of a personal nature are placed in a sealed envelope and kept by the bailiff for two years. In the months following the notification of the decision, the tenant or occupant's head may oppose.

If opposition parties are summoned to the hearing. The court decides on the requests made by the landlord, he also hears interlocutory applications and means of defense on the merits of the tenant. The ruling of the district court then replaces the order issued on request. In the absence of opposition, the order produced all the effects of a judgment that has become final.

The procedure for recovery of the premises is conducted by a bailiff, or if it finds that the person expelled and now its chief occupants of the premises voluntarily released after the notification of the order, or when authorized by resolution of Justice has the force of res judicata to return the premises abandoned. In case of refusal of the tenant to leave, the officer sends a request to the prefect of the department for the assistance of the police, in accordance with Article 50 of the Decree of 31 July 1992 establishing new rules relating to civil proceedings execution. The prefect has a period of two months to publicize its response. The silence maintained by the administrative authority during this period is a rejection of the request. The refusal is generally pronounced when the warden believes that such police intervention carries the risk of serious disturbances of public order, according to the case Couitéas State Council of 30 November 1923. If the application is approved, a date on which the police or gendarmerie take place is fixed. If it is during the recovery operations that the premises are again occupied by the deportee, the bailiff proceeds with the eviction without having to obtain a new title for expulsion. Indeed, under Article 208 of the Decree of 31 July 1992 cited above, "Untitled relocation of the deportee on the same premises constitutes an assault. The commandment to have to quit the premises served beforehand continues to have effect. "

Clauses deemed not written and abusive in the leases for residential use

Presentation: When the tenant pays more rent or pays late, it can be tempting to attribute the lessor of costs of recovery. A landlord can it be imputed cost recovery against a tenant? Dan sun decision dated July 13, 2011, the Supreme Court has said no, arguing on the basis of Article 4, paragraph p of the Act of July 6, 1989, introduced by the Act of July 13, 2006 on national commitment to housing) that should be deemed null and void any clause in a residential lease which the tenant support, including cost recovery. This aricle is to inform the tenant by distinguishing unfair clauses deemed not written.

1/The Clauses deemed not written in the leases subject to the law of July 6, 1989.

The list of clauses deemed not written is contained in Article 4 of Law No. 89-462 of July 6, 1989.

There are currently 19 provision of this type which include:

Shall be disregarded:

When the tenant pays more rent or pays late, it can be tempting to attribute the lessor of costs of recovery.

A landlord can it be imputed cost recovery against a tenant holding a lease for residential use?

In a decision dated July 13, 2011, the Supreme Court answered in the negative, arguing on the basis of Article 4, paragraph p of the Act of July 6, 1989, introduced by the Act of July 13 2006 on national commitment to housing) that should be deemed null and void any clause in a residential lease which the tenant support, including cost recovery.

This case is interesting because the tenant is likely that contractual stipulations contained in the lease for residential use and has signed, prevents him from opposing the requests of some donors.

This case illustrates that judges do not hesitate to call an unwritten clause if it is against the law.

Of course, it would have been otherwise if it was a furnished apartment and therefore not subject to the lo July 6, 1989.

A precision worthy of note, the landlord must give away a receipt to the tenant who makes the request.

A distinction should be a clause illegal or deemed not written an unfair term.

A clause deemed null and void means that it is against the law.

A clause will be illegal ipso facto annulled in so far as it will violate the mandatory provisions of the Act of July 6, 1989 and that, whatever the quality of parts.

In practice, this means that the tenant will not need to take legal action to protest this provision and will simply aleta sn lessor that the clause is illegal.

However, a clause will be deemed reasonable if it promotes a professional at the expense of an individual.

Of course, in this case, the tenant must take the precaution to go to court in order to declare the abusive clause.

It will have the burden of proof of déséqulibre significant.

2/The unfair

It should be recalled that when the lease is signed, the balance of parties must be respected and that the law of July 6, 1989 imposes rules of public order the parties to whom it will not be waived.

Concretely, this means that the landlord can impose terms less favorable to the tenant even though the latter has expressly agreed.

It is not possible to impose on a party that is illegal.

Because of the litigation that has developed with respect to certain clauses considered abusive by the courts, the Commission condemned the unfair provisions often stipulated in the residential leases (recommendation No. 2000-01 dated June 22, 2000 ).

The concept of unfair terms is defined by Article L 132-1 of the Consumer Code, "in contracts between professionals and non-professionals or consumers, are unfair terms which have the purpose or effect of creating, detriment of non-professional or consumer, a significant imbalance between the rights and obligations of parties to the contract. "

Although the opinion of the Commission have no legal value, the judges will appreciate the unfairness of certain clauses in light of its recommendations.

Case law shows that unfair terms are often found in lease furnished including the lease, security deposit, access, leave given by the tenant etc. ..

By way of example, was deemed illegal as part of a furnished, the duration of an irrevocable lease furnished to the extent that it would prevent, in case of death of the policyholder, the heirs to terminate the contract for a legitimate reason.

The Commission also found unfair leases subject to the law of July 6, 1989 including certain clauses which require the tenant to bear the costs, which usually fall to the lessor.

Was found to be abusive clauses that impose costs locatire soot, the cost of replacing mailbox, the replacement of the meter.

Other clauses require to purchase from an insurance company specific and sometimes goes to impose certain risks to ensure that the tenant is however not obliged to provide.

Failure by a property manager in his duty to advise

In a recent decision of April 28, 2011, the Court of Cassation ruled that the property manager with the management of housing that he knows is contracted to undertake the investigations necessary for the execution of his duty to advise against of its customers.

In practice, the payment of grants to carry out work in rented accommodation is subject to the obligation to first conclude an agreement with the ANAH. This conventionnement requires the landlord to comply with certain conditions in connection with the rental of his property.

In this case, the management of homes under contract was assigned to a property manager.

The Court of Appeal had not satisfied the landlord demanded that the condemnation of real estate professional to pay compensation for the damage that had generated the demand for repayment of the aid of ANAH. They saw no fault could be upheld with regard to the property manager who certainly knew the character of homes under agreement, but had not been informed in advance of obtaining grants.

The Court of Cassation quashed the decision of the trial court and held that the property manager that manages housing that he knows they are under contract to perform additional due diligence to satisfy its duty to provide advice to the against his client.

In other words, a real estate agent who manages homes under contract will be especially diligent and precise information on his client must respect the commitments it.

The incidence of actual profit to return from leave to live

Presentation: The grant of leave to live in a service room for, not an old lessor as stated the leave, but a home help is fraudulent.

 

In a decision dated February 8, 2011, the Court of Appeal of PARIS has specified that leave fraudulently issued the visa section 15-1 of the Act of July 6, 1989, in view of a pattern and inaccurate benefit of a person who does not intend to occupy the premises personally, must be declared irregular.

In this case, a 83-year-old owner was granted leave to return when she did not intend to live in places subject of the recovery.

In fact, she wanted to accommodate a third person, ie home help she needed, given his health problems.

Now a third person is not eligible for section 15 of the 1989 Act in the event of recovery to live, so that the landlord was forced to hide the reality.

In these circumstances, the Court of Appeal could infirm trial and consider the resumption of a room to live for good, not to the lessor as stated in the old leave, but to help home, is fraudulent.

However, it was probably more appropriate for the landlord to try to give clearance by invoking the adjective "serious and legitimate reason" to the extent that the courts may grant a right to recover the profits of those who did not.

THE OBLIGATIONS OF THE RIGHT TO USE AND HOUSING.

I-Repairs and maintenance

A) defined by law for the usufruct

Article 605 and following of the Civil Code:

"The usufructuary is bound only by maintenance repairs. Major repairs remain the responsibility of the owner. (...) Major repairs are those of the thick walls and arches, the restoration of beams and blankets whole. the dams and retaining walls and fencing as a whole. All other repairs of maintenance. "

Note that in case of conventional usufruct, a distributed differently can be considered contractual.

B) defined by the contract for the right to use

The burden of reparations is freely determined by the parties and specified in the act establishing the right of use.

Hence the need to clearly specify the duties of each departure, to avoid possible litigation. The only exception is condominiums, which the law puts the responsibility of the user running costs and maintenance. The fact remains that, in all cases, the user to enjoy the housing in "good man", must provide a minimum of maintenance.

II-tax charges

As the beneficial owner, the user's home is liable for tax.

The property tax is in principle for the owner, Nevertheless, he can apply for a refund to the holder the right to use on the basis of article 635 of the Civil Code and stipulate the obligation of the contract.

Living at your disposal for any clarification.

assignment of commercial lease and legal effects

Presentation: When selling a business or an assignment of lease rights, the landlord can take several precautions (approval clause, guarantee clause solidarity etc. ..) so that the holder of the leasehold remains the guarantor of the implementation of rights and obligations attached to the lease that gives. However, the landlord can not claim against the assignee of the personal failings fault attributable to the transferor, except in specific cases. This article aims to address some legal issues in the relationship lender-seller-buyer under an assignment of right to lease or sale of a business comprising said lease rights.

Ø relationship between the lessor and the assignor

To increase the security of the lessor who is sometimes imposed a successor to the tenant as part of a sale of goodwill, the lessor inserted in the lease contract a clause guaranteeing solidarity.

By virtue of this clause, the seller remains attached to the transferee in the execution of the lease and obligations.

The transferor will be required to pay the rent and charges, repairs, rental etc. .. in case of failure of his successor until the expiration of the lease.

This clause is a commitment to joint guarantee and not a guarantee, which means that the grantor can not object to the lessor of the defenses which the debtor could claim.

The seller has contracted an independent enegagement that of his successors.

Since 1988, the Court considers that in the absence of any express provision of solidarity between assignor and assignee, the lessor may not require the first payment of rents accruing after the sale.

In the absence of contractual provision limiting the clause to the joint guarantee contract term of the lease, the assignor remains liable during the period of automatic renewal of the lease until it expires (Cass. civ third. 5 - 6-2002).

Should therefore be careful in choosing its assignee to avoid getting trapped.

Ø The relationship between the transferor and transferee

It is the principle of the landlord can claim against the assignee, the current tenant of the faults committed by the transferor.

In a decision dated June 30, 2010, the Supreme Court ruled that in case of successive transfers of the lease, violations committed by the previous tenants can not be relied upon by the landlord in support of an application termination of the lease to the wrongs of the last transferee.

Where the transferee acquires the right to lease or the business including said leasehold, it must respect the conditions and terms of the lease as it is now the sole owner of the right to enjoy the premises.

Correlation with the use of its premises, the transferee must, of course, comply with contractual and legal obligations (payment of rent, maintenance obligations, compliance with the use of contract etc ...).

However, it is common practice that the vendor sells his business even though there is a conflict with his landlord and the transferee is not aware of the existence of this conflict.

As a result, the lessor will not hesitate to bring legal action against the transferee for the failures of the previous tenant of its contractual obligations.

In this case, the landlord has taken the precaution to warn the assignee of the failings in the previous tenant and will remain to stop such breaches or acts contrary to the terms of the lease.

Thus, the transferee meets in person at fault for the actions of the seller if he himself has continued its shortcomings.

However, judges have understood that some donors had tried to take advantage of mistakes attributable to the assignor against the assignee for the refusal to pay for a foreclosure

 The Supreme Court ruled that the landlord could not, to oppose the renewal of the lease the transferee to oppose the misconduct attributed to the transferor (Cass. civ 3. 10-1-2007).

The transferee must be borne in mind that it may be prosecuted by the landlord that will force him to force him to pay or repair the damage that occurred during the course of the lease, even those that occurred prior to the assignment.

Ultimately, when someone wants to buy a leasehold or a business, it must ensure during negotiations that there is no current legal proceedings between landlord and tenant present or at least if it has knowledge, integrate into the selling price of the risk of legal action instituted against him.

I am at your disposal for further information.

MUSIC: reform of the term of protection of performers' rights

Presentation: September 12, 2011, the Council of Ministers of the European Union adopted an amendment to the Directive on the term of protection of copyright and related rights (No. 2006/116/EC), bringing 50 to 70 years duration of human rights protection for performers, composers and producers. Back issues of this change.

 

The original text of the directive issued in 2006 and transcribed into national law by Article 211-4 of the Intellectual Property Code, then took up Article 15 of the Act of July 3, 1985, until when in force. The term of protection of the rights of artists - performers and producers remained so 50 years. The only change to the 1985 Act by the Directive as amended in 2006 concerned the starting point of the term of protection of the rights of producers of phonograms, it varies depending on whether there are copies made publicly available or not.

 

The Directive, as amended, aligns the term of protection of rights of the copyright, but this alignment remains qualified. Indeed, while the term of protection of copyright begins from the author's death, the protection of rights begins with the publication of the work (70 years post-mortem).

 

A proposal for a Directive of the European Parliament, presented July 16, 2008, had initially planned to extend the duration of related rights protection to 95 years, duration existing in the United States. Finally nuanced to a period of 70 years in the Directive adopted on 12 September, the main idea was the same: draw the consequences of longer life expectancy, so that many performers and composers who began their career in their youth, have their benefits fall into the public domain during their lifetimes and suffer a consequent loss of income.

 

This reform has aroused various reactions among the member states of the European Union.

 

Professionals in the field of music, included in this reform, seem satisfied. Mr. Placido DOMINGO, Chairman of IFPI (International Foundation for Phonography Industry), an organization whose mission is to represent the music production industry worldwide, announced that "the decision to extend the term of protection of human producers in Europe is excellent news for performers. " Mrs. Frances Moore, CEO of IFPI to when she said: "This is a victory for justice. With this decision, the European Union gives artists and producers deserve fair treatment "[1]. In a statement issued the day of adoption, the agency said that more than 38 000 artists and performers had signed the petition for the extension of rights.

 

However, many opinions do not support this recent reform, fearing the challenges for the public and consumers. This is particularly the view of Mr. Patrick FREMEAUX, Director of the publishing house Frémeaux and Associates, which sees the extension of rights adopted by Brussels "the burial of the cultural diversity of sound heritage (music, spoken , theater, etc.). for all records beginning 1 January 1962. " According to him, although this measure is beneficial to great performers and their record company, "it prohibits all artists whose cultural significance is yet greater than the economic reality - the largest number - can repeat their past works , with the assistance of independent labels or majors. " He explains that many works whose sales are too low for the economy of scale of major companies, will no longer be available in physical form, these do not dismissing their artists.

 

It is indeed a real issue, which was particularly illustrated by the dispute between Johnny Hallyday at his former label, then wanting it back Masters titles recorded by Universal.

 

This position, however, must be complemented by the existence of clauses called "catalogs clauses" that allow artists to re-record the works have been the objects of the contract with the producer to a person other than the latter in excess of a defined period. Catalogs clauses are valid as long as the manufacturer will include recordings of the artist in question to the catalog of the company. This means that beyond the period granted, usually 7 to 10 years, the artist is free to register with a new producer titles he had recorded during performance of the previous contract.

 

It should nevertheless be able to differentiate repeat a recording that will not be possible for twenty more years, that of carrying out re-recordings, possible in the absence of clauses catalogs or beyond its duration. The value of first editions are still generally higher than that of re-registrations.

 

It is also a difficulty with Françoise Castex, MEP. According to her, "extending the duration of rights is to leave these rights even longer in the hands of industrial drive and logical to place emphasis on the profitability of a logical transfer of assets," she continued, "with the risk that holders of rights decide not to republish the works economically unviable, the ousting of the public domain forever. "

 

Not surprisingly, consumers were also disappointed by the extension of protection of rights of performers and producers. The European Bureau of Consumers, BEUC believes that "this decision ignores the needs of designers and buyers in the market for online music and hampers innovation."

 

These negative opinions on the adoption of this reform were highlighted at the time of the debate, while eight states, including Sweden and Belgium, had voted against the amendment of the Directive. For these countries, it appears that extending the protection of neighboring rights enjoy more record producers, as performers. One of the arguments at the heart of the debate was also negative effects that the reform could have long - term accessibility of the material and cultural heritage.

"Consecration" of the occupational physician in the reform of OHS

Presentation: SST currently have some advantages that the reform has to make optimal.

The expertise of occupational physicians in the companies and the proximity of SST are the key points that the reform had to save.

First, the long-awaited reform has "put on the front of the stage" specialization and the professional independence of doctors.

Indeed, their power of proposal was finally "act" as the law really gives them the power to intervene when they detect a problem of global health.

Now, when the medical officer finds a risk to the health of workers, the employer must propose measures to stop writing via a written reasons. In return, the employer must implement its requirements or, if appropriate, write a paper on the reasons for the refusal.

Note also that the occupational physician may be seized by the employer of a health issue at work then it will always him list his recommendations in writing.

Extended missions of the occupational physician will pair with those of the HSC and elected staff representatives: the reform is focusing on further interaction with the aforementioned written communication.

As the occupational physician is given a role in preventing occupational health, its protection as a result of a breach of contract is obviously improved and irrespective of the nature of his contract CDD or CDI.

"Right hand" in terms of social and health monitoring in the company, new prevention workers are created. Thus, it will be for the employer to appoint one or more competent employees to manage the activities of protection and prevention of occupational risks of the company. Otherwise, those involved in risk prevention professionals from the health service inter-working will always be sought.

Ultimately, the objective of promoting a policy of effective occupational health through better prevention in the company by focusing on collective action for all employees, appropriate to their work situation, and individual follow-up seems better suited to the needs of 'already reached.
Everyone knows the development of primary prevention efforts is a necessity to curb the impact of work situations on health. Also, the definition by law of the missions of ESS and the establishment of multidisciplinary teams of health at work involved in achieving this target preventive. Hopefully the results in terms of well-being at work are to meet the challenges of reform

E-commerce: Pixmania Sanction for breach of its commercial relations with a merchant

Presentation: September 13, 2011, the first room of the Commercial Court of Paris ordered the company to Pixmania including Dimitech pay the company the sum of € 1 million as damages in compensation for the loss of opportunity suffered following the wrongful termination of its relationship with this company it was the distributor in its market place called PixPlace. The decision is interesting about the call on the responsibility of the websites carrying on the business market place following the wrongful termination of business relationships with suppliers or manufacturers using their platform to sell their products on the Internet

For the record, Article L 442-6-1 § 5 of the Commercial Code provides that:

    "Engage the responsibility of the author, and forced him to repair the harm done, for any producer, trader, business or person registered in the register of businesses:

    To break sharply, even partially, an established business relationship, without written notice having regard to the duration of the business relationship and respecting the minimum period of notice determined by reference to usage of trade, through trade agreements. When the business relationship is for the supply of private label products, the minimum period of notice is double that which would apply if the product was not provided branded distributeur.A absence of such agreements, orders of the Minister for Economic Affairs may, for each product category, setting, taking into account the usages of trade, a minimum period of notice and supervise the conditions of breakdown of trade relations, particularly in terms of their duration. ... "

In this case, the website pixmania.com essentially limited to online sales of technology products.
 
This activity is broken down:

- Firstly, direct sales to the Internet, Pixmania acting as distributor. Pixmania sells to the customer's own products.

- Secondly, on sale through a market place which is called PixPlace a distribution platform for traders / suppliers, Pixmania then acting as agent. The user places an order with Pixmania, but the orders are processed by the supplier that ensures the delivery and customer service, Pixmania cashing the selling price prior to handover to the supplier, minus his commission.
 
Pixmania Dimitech society and come into relationship in early 2009.
 
Dimitech has posted its product on the marketplace from Pixmania.
 
Within months, the turnover generated by the Dimitech Marketplace Pixmania was 6.5 million € per year.
 
Pixmania has crept into its trade policy (resale price maintenance, demand for new products, opening new countries).
 
In September 2010, Pixmania Dimitech suddenly demanded the signing of a contract backdated. A written contract has been adjusted in September 2010 to formalize the relationship between the two companies.
 
In December 2010, overnight, Pixmania has interrupted the link to access the Internet Dimitech products, the latter has been brutally deprived of its turnover through the platform PixPlace called Pixmania.
 
Pixmania has exercised its Terms of adherence to the platform vendors to stop PixPlace present Dimitech product offerings on its site without notice, since Dimitech have been more than 10% of assessments negative from users.
 
Pixmania Dimitech has assigned to obtain payment of:
 
- The sum of € 839 287 as damages in compensation for damages resulting from the sudden break in commercial relations,
 
- The sum of € 8,643,303 as damages in compensation for damages resulting from wrongful termination of trade relations,
 
In June 2011, an insolvency procedure was opened against Dimitech.
 
Pixmania rétorquée fought back and that termination could occur without notice in case of failure by Dimitech its contractual obligations and that the break was justified by the application of the terms of the contract on the evaluation of the supplier (Dimitech) .
 
Finally, according to Pixmania, the rate of customer dissatisfaction exceeded the limits set by contract which justified immediate termination.
 
Moreover, according Dimitech, at the time of rupture, sales via the platform Pixmania accounted for 40% of its total turnover and the attitude of the Pixmania forced to file a DCP June 9, 2011 so that by order of TGI Colmar dated June 14, 2011, an insolvency procedure was opened, Mr. Weil was appointed administrator.
 
The court found several different points.
 
- With regard to the contract clause that provides for the exclusion of the platform without notice under due to a number of positive ratings below 90%, the

The court ruled that the implementation of this clause seems impossible because of its imprecise and given as:

    - Determining the rate of satisfaction is connected to any constraint of time (is it a one-off? [A D-Day? The last day of the week? Month?] Over a given period? [last week of each month?] over a rolling? [The 10 days of determining the rate?])

    - The formula for determining the rate is not defined (as opposed to opinions expressed by users? Compared to the number of orders?)

    - The allocation of opinion in determining the neutral rate is not specified, the contract refers to a number of positive ratings below 90%, while mail from Pixmania December 15, 2010 states that "[... ] you have been more than 10% of negative feedback from users. "

In addition, it was not clear what the terms of gathering the opinions of Internet users, how they were made and kept so indisputable.

Thus, the court considers that none of the conditions of termination were met (including that relating to satisfaction), so that Pixmania had no reason to break with its contractual relations with brutality Dimitech.
 
- As regards the production of a bailiff made too late in relation to the alleged commission of the breach of contract:

Pixmania issued a statement to justify the rate of negative feedback left by users on their site for products Dimitech.

First, the court said the bailiff does not know how these data were retained and the impossibility that there would be change and a bailiff established almost four months after the decision to sever can not come to support the decision had been taken.
 
In addition, the court held that the bailiff made almost four months after the break, can not really justify the decision to break, why was it developed so late? The procedures for collecting assessments and conservation are not explained.
 
Finally, according to the judges, the very low number of reported negative evaluations of the importance of volume of business done on the platform does not allow Pixplace Pixmania to "rely on the importance of complaints not followed by actions corrective to justify its decision to terminate the contract.
 
- As an alleged "blackmail" that was guilty Pixmania: signing the contract to join the platform vendors

Pixmania Dimitech and trade relations have maintained from May 2009 without being properly written contract.
 
It was at the express request of Pixmania "and not without some form of blackmail to higher prices" than Pixmania Dimitech forced to sign "tomorrow":

"A contract Pixmania waiting on your desk. It is super urgent that you sign tomorrow because I have the pressure of the internal audit discovered that we did not have a contract together. I have a very strong pressure to raise interest rates at the usual rates that I do not want. But if you do not help me just before the end of the week by sending me the contract, I could not keep myself at that level. [...] "

In conclusion, "the court finds that Pixmania, who wanted to cease any business relationship with Dimitech, in particular for reasons relating to the solvency or sustainability of the group of companies which Dimitech part, was so threatening accompanied by explicit threats, eager to make him sign a contract that was also backdated, the contract provided that the conditions of termination leonine nature, that the clause has applied Pixmania (satisfaction) is indeterminable, the application that was made is not justified and the conditions of application are abusive, ... In addition, the concerns about the solvency of Pixmania Dimitech or group of companies, does not seem justified since Pixmania cashed on behalf of Dimitech the price of goods sold to customers Dimitech that Pixmania held (subject to the commission accruing) funds belonging to his partner, the court said Pixmania, in its decision to break 9 December 2010 the membership contract binding it to Dimitech has made mistakes or liability, the resulting damage will be repaired and that the break occurred solely to blame. "

Finally, the court sentenced particular Pixmania Dimitech to pay the sum of € 1,000,000 as damages by holding that "Dimitech lost any chance to get some or all of the funds expected [as part of a Fundraising under way for five million euros], so appropriate to reclassify the chief demand for loss of opportunity. "

How to contest an order for payment?

Presentation: When you are indebted to someone, it is possible that the creditor compel you to honor your commitments through a procedure called "order for payment". An order for payment order is then served on you. But in this case, your rights and obligations? How to challenge the injunction to pay?

When you are indebted to someone, it is possible that the creditor compel you to honor your commitments through a procedure called "order for payment".

An order for payment order is then served on you.

But in this case, your rights and obligations? How to challenge the injunction to pay?

The terms of the opposition to the injunction to pay

First, be aware that the opposition period is required by law.

Indeed, under Article 1416 of the New Code of Civil Procedure, the debtor has one month from its information by the creditor is to say, after being served with the order for payment order to challenge the injunction by way of opposition.

However, be aware that if the meaning was not made to the person of the debtor, but at his home in the study of the bailiff or the last known address, the opposition is still admissible the month following the first bailiff served personally.

The opposition is also admissible in the following month when the first enforcement action having the effect of making unavailable or all of the debtor's property has been brought to the attention of the debtor.

Formal rules are also to be observed.

 

Indeed, the opposition shall be filed at the Registry or by declaration against receipt or by letter.

 

If the opposition is filed by registered mail, the date of the opposition, that of sending the letter rather than the receipt by the Registry (Article 669 of the Code of Civil Procedure; Cass. 2nd civ., 27 April 1988: Jurisdata No. 1988-000803; Bull. civ. 1988, II, No. 99).

 

The debtor opposed to forming an injunction to pay is not required to justify his act (Cass. civ second., 14 Jan 1987: Jurisdata No. 1987-000010).

 

On the place of the opposition, Article 1415 al 1 of the Code of Civil Procedure provides that the opposition shall be filed with the court that the president made the order of payment order.

 

The opposition brought before a court other than under section 1415 of the Code of Civil Procedure is deemed not to have been formed and is therefore void.

The judges of the Supreme Court considered in a decision dated May 17, 1977 that "a letter addressed to the debtor by the bailiff can not argue continuing opposition within the meaning of section 1415 of the Code of Civil Procedure ( Cass. 2nd civ., May 17, 1977: JCP G 1977, IV, p. 177; Bull. civ. 1977, II, 134).

 

If the opposition is by declaration at the Registry, the date of the opposition is evidenced by the receipt must be immediately returned to the opponent (V. CPC, art. 1415, para. 2);

If the opposition is filed by registered mail, the date of the opposition is the date of dispatch of this letter, the postmark as proof, and not the date of receipt of the letter by the Registry.

If opposition to order for payment before the Commercial Court, the opposition is received free of charge by the clerk.

Concerning the recording of costs of opposition from the Registry, the Registrar shall invite the creditor to record the facts of the opposition within two weeks. If this deadline is not met, the demand for order for payment to lapse.

In this case there is default of payment and the creditor recovers its freedom to act.

It is the debtor himself who must file an opposition (Cass. civ second., March 4, 2004: Jurisdata No. 2004-022592; Bull. Civ. 2004, II, No. 90, JCP G 2004, IV, 1858) but sometimes there are several debtors. In this case, the law provides that opposition by one of the debtors also produces effect in respect of other debtors.

The debtor may make an adjustment if the opponent did not have the ability to form this remedy. The adjustment must be made within one month of service of the order, that is to say, the opposition period.

If an objection against the order of payment order covered with the enforcement order, seizure-allocation performed on its basis can not be released.

Note that when the service of the order is irregular, the opposition period does not run.

 Once you have an objection, you will be invited by the Tribunal which will consider the reasons for your dispute.

Care must be taken because no abuse can be described as dilatory and lead the opposition to ask a fine.

I remain at your disposal for any information and litigation.