The Interpellatory Summons: the ultimate level of formal notice
The Order of 11 February 2016 reforming the law of obligations has profoundly modified the Civil Code.
Among the new provisions is, in particular, within Chapter 3 dealing with actions open to creditors, an article 1344 dealing with the debtor's formal notice.
Cet article est ainsi rédigé : « Art. 1344.-Le débiteur est mis en demeure de payer soit par une sommation ou un acte portant interpellation suffisante, soit, si le contrat le prévoit, par la seule exigibilité de l’obligation »
It is therefore a choice left to the creditor, who may, at his option, give formal notice, have a summons issued, or have an interpellative act issued.
If the interpellative summons already existed prior to this reform, it is an opportunity to take stock of the interest of this act, which is sometimes misunderstood.
Let us look at the advantages and disadvantages of the three methods of formal notice referred to in article 1344 :
The formal notice:
Sans formalisme particulier, la mise en demeure est la plus souvent une simple lettre recommandée.
Elle a l’avantage de la simplicité. Mais son défaut tient à son mode de distribution postale : Le destinataire a 15 jours pour retirer sa lettre auprès de la Poste, et s’il ne le fait pas, la lettre revient « non réclamée » et la mise en demeure est réputée non faite par les tribunaux qui exigeront une sommation par acte d’huissier.
The simple summation:
This is a bailiff's act acting as a formal notice. Its indisputable character as for its delivery makes it possible to avoid the pitfall of the registered letter.
The interpellatory summons:
It has the same probative force as the simple summons but, as its name indicates, it also allows the debtor to be directly questioned and to obtain his observations regarding the obligation.
Thus, the debtor may, if he wishes, express his reservations as to his rights, but he may also, as soon as the summons has been served, ask for delays in payment, acknowledge the debt, etc.
and in fact, the interpellatory summons has the great interest to unblock contractual situations by avoiding the cost of a lawsuit: to collect the explanations of the debtor allowing to find a solution while preserving his rights.
In practice, the judicial officer will go to meet the debtor and, while putting him on notice, will ask him various questions, and in particular the reasons why the payment did not take place.
The bailiff will faithfully transcribe the debtor's answer in full, which will be enforceable against him.
The refusal to reply will also be recorded by the bailiff.
It should be noted that this interpellatory summons can also be used for summons to do and that it is also very useful in this case.