Interim payment proceedings (référé provision): getting paid quickly when the debt is not seriously contestable

A customer owes you an invoice that has been overdue for months, disputes nothing on the substance but does not pay, and your cash flow is suffering. Waiting for a judgment on the merits can take a year or more, even though the sum is due and the debtor knows it. Summary proceedings for an interim payment (référé provision) exist precisely for these situations: obtaining quickly the payment of a sum where the obligation to pay is not open to serious dispute. This guide explains in which cases this procedure is most effective, how the condition of a debt that is not seriously contestable is proved, and how to choose between interim payment proceedings, an order for payment (injonction de payer) and a summons on the merits, with the associated time limits and costs.

What are interim payment proceedings (référé provision)?

The référé provision is an urgent procedure that allows the creditor to obtain a court decision ordering the debtor to pay a sum of money, without waiting for a trial on the merits. The decision handed down is called an order in summary proceedings (ordonnance de référé), made by a single judge ruling quickly.

The basis depends on the court seised. Before the judicial court (tribunal judiciaire), it is Article 835, paragraph 2, of the French Code of Civil Procedure. Before the president of the commercial court (tribunal de commerce), it is Article 873, paragraph 2, of the same code. These two provisions, whose numbering was changed by Decree No. 2019-1333 of 11 December 2019, which entered into force on 1 January 2020 (former Article 809 becoming 835), lay down the same rule:

Where the existence of the obligation is not seriously contestable, [the judge] may grant an interim payment to the creditor, or order performance of the obligation even if it is an obligation to do something.

Two characteristics should be understood from the outset. First, the judge in summary proceedings is not the judge on the merits: he or she does not finally decide the dispute, but only finds that the obligation appears sufficiently obvious to justify immediate payment. Second, despite the word “provision”, the judge may award the whole of the debt. There is no obligation to ask for a mere advance payment: if the whole of the sum is not seriously contestable, the interim payment may cover 100% of the amount claimed. The part of this provision relating to obligations to do something is dealt with in our article on the order to perform addressed to a commercial partner.

The central condition: a debt that is not seriously contestable

The whole success of an interim payment claim for a debt rests on a single notion, that of the absence of serious dispute. It is the filter that separates the cases that go through in summary proceedings from those that must go to the merits.

What “not seriously contestable” means

A serious dispute is a real, reasoned and credible disagreement as to the existence or the amount of the debt. Conversely, a challenge that is merely a delaying pretext, an unsupported assertion or a manifestly unfounded argument is no obstacle to summary proceedings.

The judge in summary proceedings makes a prima facie assessment, that is, an examination of plausibility, without conducting an in-depth inquiry. He or she does not decide a delicate point of law or weigh complex conflicting evidence. If the case requires an expert appraisal, heavy legal analysis or the hearing of witnesses, the dispute becomes serious and the judge declares that he or she has no power to grant the interim payment. The parties are then referred to the judge on the merits.

A practical rule should be remembered: the doubt benefits the debtor. As soon as the judge perceives a real difficulty, he or she refuses the interim payment, not because the debt does not exist, but because summary proceedings are not the appropriate setting in which to resolve a genuine debate.

Concrete examples of debts that go through in summary proceedings

Several situations lend themselves well to interim payment proceedings, provided that the proof of the debt is solid and the debtor cannot raise any credible argument:

• an invoice accepted without reservation, corresponding to a service delivered and not disputed on receipt, left unpaid at its due date
• an account balance acknowledged by the debtor in a letter or an email
• unpaid commercial rent where the lease is clear and the tenant does not dispute occupying the premises
• a signed acknowledgement of debt, unequivocal and not performed
• an unpaid cheque or an accepted bill of exchange for a certain amount

Consider a craftsman who carried out renovation work for a trading company, with a signed quotation, acceptance of the work without written reservation and an accepted invoice. The customer is slow to pay, vaguely citing “tight cash flow”, without ever making the slightest technical criticism. This debt is not seriously contestable: interim payment proceedings are the quickest route.

Examples of situations where summary proceedings fail

Conversely, some cases necessarily belong on the merits. Take the same craftsman, but this time the customer disputes the quality of the work in writing, produces a report of defects drawn up by a commissaire de justice (bailiff) and relies on quantified defects in workmanship. The disagreement concerns the performance of the service itself. The judge in summary proceedings will consider that an expert appraisal is needed to assess the reality of the defects: the dispute is serious, and the interim payment will be refused or heavily reduced.

Similarly, a dispute over the interpretation of an ambiguous contractual clause, a set-off relied on between reciprocal debts or an arguable limitation defence will generally take the case outside the scope of summary proceedings.

Interim payment proceedings, order for payment or summons on the merits: how to choose

Three routes are open to an unpaid creditor. Confusing them wastes time and money. The choice depends on the amount, the nature of the evidence and above all the foreseeable attitude of the debtor.

The order for payment

The order for payment (injonction de payer), governed by Articles 1405 et seq. of the French Code of Civil Procedure, is a procedure that is non-adversarial at the outset. The creditor files a petition with its documents, and the judge makes an order without the debtor being heard. It is the least costly route and often the quickest on paper.

Its weak point is structural: the debtor may lodge an objection within one month from service of the order. The objection then sends the case back to an ordinary adversarial debate, as if the procedure started again from zero. The order for payment is therefore ideal where the debtor is in default, passively insolvent or simply negligent, but does not dispute the debt. As soon as a combative debtor is on the other side, he or she will lodge an objection and the time saved evaporates. The preparation of the case and the steps of this written procedure are detailed in our article on the order for payment applied to B2B invoices.

The summons on the merits

The summons on the merits (assignation au fond) is the ordinary procedure. The judge examines the whole dispute, decides all disputed points and gives a final judgment on the principle and the amount of the debt. It is the mandatory route where the dispute is serious: legal difficulty, assessment of complex evidence, need for an expert appraisal.

Its drawback is duration. Between the summons, the exchange of submissions, the pre-trial phase and the oral hearing, several months or even more than a year may pass depending on the court's workload. For a creditor who needs its cash, this delay is often unbearable.

When to prefer interim payment proceedings

Interim payment proceedings occupy an intermediate position that is particularly useful. Unlike the order for payment, they are adversarial from the outset: the debtor is summoned and can put forward its arguments at the hearing. This characteristic is in fact an advantage, because an order made after adversarial debate cannot be challenged by a simple objection. There is no equivalent of the objection in summary proceedings; only an appeal is possible, but it does not suspend enforcement.

Interim payment proceedings are therefore the right choice in a specific scenario: the debt is not seriously contestable, but the debtor is likely to resist, to multiply delaying manoeuvres or to lodge an objection to an order for payment. Rather than suffer the objection, the creditor takes the initiative with a rapid adversarial procedure, whose order is enforceable by operation of law on a provisional basis.

In practice, the comparison can be summarised as follows:

• order for payment: undisputed debt, passive debtor, search for minimum cost and speed, acceptance of the risk of objection
• interim payment proceedings: debt not seriously contestable but potentially combative debtor, need for a solid and rapid enforceable decision
• summons on the merits: serious dispute, complex case, need for a final judgment resolving the whole disagreement

Which court to bring proceedings before

The choice of court depends on the status of the parties and the nature of the debt.

Where the dispute is between two traders or concerns a commercial act, interim payment proceedings before the commercial court are the normal route. The creditor applies to the president of the commercial court on the basis of Article 873, paragraph 2, of the French Code of Civil Procedure. This is the most frequent case in business law: unpaid invoices between companies, balances of commercial accounts, bills of exchange. The decision tree between the three routes open before this court is set out in our article on applying to the commercial court for an unpaid invoice.

Where the debtor is an individual, a non-trader professional, or in civil disputes, jurisdiction lies with the president of the judicial court, on the basis of Article 835, paragraph 2. Commercial leases also fall within the judicial court, which has specific jurisdiction in this area.

Territorial jurisdiction in principle follows the defendant's domicile, but special rules exist, in particular in contractual matters where the place of performance of the service may found jurisdiction. A mistake as to the court wastes valuable time: checking the competent court is the first step in the case.

How the procedure unfolds

The interim payment procedure follows a structured but rapid pattern.

The creditor has a summons in summary proceedings served on the debtor by a commissaire de justice (bailiff, the new name of huissiers de justice since the merger of the professions). The summons states the hearing date, sets out the claims and refers to the documents on which the debt is based. In some cases, prior authorisation of the judge fixes the date, in particular for so-called “hour to hour” summary proceedings (référés d'heure à heure) in cases of particular urgency.

At the hearing, both parties appear, represented or assisted in accordance with the rules of the court. The debate concerns one essential point: is the debt seriously contestable or not? The creditor demonstrates the certain nature of its debt through its documents, and the debtor tries to raise a credible dispute. The judge assesses and makes the order, often within a short time after the hearing.

The quality of the bundle of documents is decisive. Signed contract, purchase order, delivery note or acceptance report, invoices, written reminders, emails acknowledging the debt: the more complete and coherent the chain of evidence, the more artificial the debtor's challenge will appear. Conversely, an incomplete file gives the debtor arguments to claim a serious dispute.

Time limits and costs to anticipate

The main advantage of interim payment proceedings is the time limit. Whereas proceedings on the merits are counted in many months, summary proceedings allow a hearing to be obtained within a time often much shorter, sometimes a few weeks depending on the court's workload and the urgency relied on. The order follows quickly after the hearing. This saving of time is the decisive argument for a creditor who must preserve its cash flow.

Financially, interim payment proceedings involve several items of expense which vary from case to case. A distinction must be made between the fees of the commissaire de justice for service of the summons and then for enforcement of the order, any lawyer's fees, and procedural costs. These amounts depend on the complexity of the case, the court and the value of the dispute; there is no single tariff. The creditor may however ask the court to order the debtor to pay the costs (dépens) and a sum in respect of irrecoverable costs (frais irrépétibles) on the basis of Article 700 of the French Code of Civil Procedure, which makes it possible to recover part of the costs incurred.

Compared with the cost of proceedings on the merits, which drag on and involve more submissions and hearings, summary proceedings remain economically advantageous where the debt lends itself to them. The order for payment remains the least expensive, but its apparent saving disappears in the event of an objection, which triggers a new adversarial phase.

Scope and limits of the order in summary proceedings

The order in summary proceedings has a major advantage for the creditor: it is enforceable by operation of law on a provisional basis. In practical terms, as soon as the order is served on the debtor, the creditor may begin measures of enforcement (attachment of a bank account, attachment of earnings, seizure and sale of movable assets) without waiting for avenues of appeal to be exhausted. An appeal remains possible, but it does not suspend enforcement.

The limits of this decision must nonetheless be known. The order in summary proceedings does not have res judicata effect on the merits. The judge in summary proceedings rules provisionally, which means that a debtor ordered to pay an interim payment may then apply to the judge on the merits to have the dispute finally decided. If the merits go in his or her favour, he or she may obtain restitution of the sums paid.

In practice, this risk remains limited where the debt was genuinely not seriously contestable: a debtor who failed to convince the judge in summary proceedings has little chance of reversing the position on the merits. The interim payment granted then becomes, de facto, a final payment. But this reservation explains why interim payment proceedings are not suited to cases presenting a real legal risk: it is then better to obtain directly a judgment on the merits, final and not open to challenge.

Conclusion

Interim payment proceedings are the most effective judicial recovery tool where two conditions are met: a debt whose existence is not seriously contestable, and a debtor who, without any credible argument, does not pay or is likely to resist. They combine the speed that a summons on the merits lacks and the solidity that the order for payment lacks, since the latter can be neutralised by a simple objection.

The position is clear: faced with a passive debtor and an undisputed debt, the order for payment is enough; faced with a real dispute, only the merits can resolve it; but in the intermediate zone, that of an obvious debt which the debtor might seek to contest purely as a tactic, interim payment proceedings are the best weapon. Everything turns on demonstrating that the debt is not seriously contestable, and therefore on the quality of the bundle of documents.

Before acting, build a complete evidential file and have your debt assessed: ask a professional to check, document by document, that no serious argument can be raised against it. It is this prior analysis that determines whether interim payment proceedings will lead to rapid payment or to a referral to the merits that would have cost you time.

Frequently asked questions

Do interim payment proceedings allow the whole of the debt to be obtained, or only an advance? Despite the term “provision”, the judge may award the whole of the sum claimed. There is no statutory ceiling: provided that the whole of the debt is not seriously contestable, the interim payment may cover 100% of the amount due, interest included. The judge reduces the award only where part of the debt is the subject of a credible dispute.

What is the difference between interim payment proceedings and an order for payment? The order for payment (Articles 1405 et seq. of the French Code of Civil Procedure) is a procedure that is non-adversarial at the outset: the judge rules on a petition, without hearing the debtor, who may then lodge an objection within one month. Interim payment proceedings are adversarial from the outset, the debtor is summoned to a hearing, and the order made cannot be challenged by objection. Summary proceedings are therefore preferable where the debtor is likely to contest.

Before which court should interim payment proceedings between companies be brought? Where the dispute is between two traders or concerns a commercial act, interim payment proceedings before the commercial court are the normal route: the creditor applies to the president of the commercial court on the basis of Article 873, paragraph 2, of the French Code of Civil Procedure. If the debtor is an individual or a non-trader professional, jurisdiction lies with the president of the judicial court, on the basis of Article 835, paragraph 2.

What exactly does a debt that is not seriously contestable mean? It means that the debtor cannot raise any real, reasoned and credible argument as to the existence or the amount of the debt. The judge in summary proceedings assesses plausibility without conducting an in-depth inquiry. If the case requires an expert appraisal or raises a delicate legal question, the dispute becomes serious and the judge refuses the interim payment, referring the parties to the merits.

How long does it take to obtain an order for an interim payment? The time limits are markedly shorter than on the merits. A hearing can be obtained in a few weeks depending on the court's workload and the degree of urgency, and the order generally follows shortly after the hearing. This is the main advantage of this procedure compared with a summons on the merits, which often drags on for many months.

Can the debtor appeal against the order for an interim payment? Yes, an appeal is possible, but it does not suspend enforcement. As the order is enforceable by operation of law on a provisional basis, the creditor may begin measures of enforcement as soon as it is served, without waiting for the outcome of the appeal. The debtor also retains the possibility of applying to the judge on the merits, but a debtor who could not show a serious dispute in summary proceedings has little chance of reversing the position.

Can the costs of the summary proceedings be recovered? The creditor may ask for the debtor to be ordered to pay the costs (dépens) and a sum in respect of irrecoverable costs on the basis of Article 700 of the French Code of Civil Procedure, which makes it possible to recover part of the lawyer's fees and procedural costs. The fees of the commissaire de justice relating to service and enforcement are also in principle borne by the debtor ordered to pay.