Covering of credits

The covering of credits is a regulated activity consisting in using all the means of legal, friendly and/or legal, to obtain from a Débiteur the payment of the Créance due to the Créancier.

The activity of covering of credit

Credits and phase of covering

There exist several phases of covering:

commercial or preventive covering.
the recouvement friendly one.
contentious covering.

With each phase corresponds a different countable statute:

Healthy. Doubtful
.
Doubtful compromise.

With each phase corresponds a dedicated service:

Agency.
friendly Service.
contentious Service.

Credits and specialized companies

There exist several ways for a company of recovering a credit:

the company manages itself the covering of its unpaid, for example in a contentious service; it can be possibly pressed on specialized companies, often companies of covering, which will provide him services such as models of documents with heading etc, it can also initiate an legal action, via bailiffs. In the event of non-payment, the creditor company can decide to give up the credit.

the company can call upon a company of covering, then elected, which is simply occupied to continue the initial step of covering, and possibly deals with the legal steps.

the company can call upon a company of covering, then elected, which repurchases the credit to him, with the help of a reduction. In this case, it is this company of covering which manages the risk of Non-payment. One calls these companies, of the companies of Affacturage. This technique, very developed in the Anglo-Saxon countries and the framework of international covering, and in recent progression in France, makes it possible the creditor company to have liquidities very quickly.

The mandate for purposes of friendly covering (French right)

When a company or a company wishes to carry out the covering of credits, it can call upon a specialized company. In this case, it will give to the specialized company Mandat or Procuration for purposes to proceed to the operations of friendly covering. The following articles of law are applicable:

decree n°96-1112 of December 18th, 1996 for the regulation of the activity,
articles 1984 to 2010 of the civil code for the legal definition of the mandate,
the law n° 92-1442 of December 31st, 1992 concerning the terms of payment and the penalties,
the law n° 91-650 of July 9th, 1991 concerning the civil procedures of execution.

A very regulated activity (French right)

The activity of the specialized companies in the covering of credits is regulated perfectly by decree 96-1112 of December 18th, 1996, and especially by article 32 of the law n° 91-650 of July 9th, 1991 punishes one year of imprisonment and 15000 euros fine these intrigues. It is then recommended:

to note most exactly possible the date and the hour of each call,
to preserve a recording of the calls (often on answering machine in the event of absence) like additional proof in the event of action at the penal one.

Within the framework of article 222-16 of the penal code

Interruption of the regulation

Contrary to an extremely spread idea, in French right the sending of a letter of injunction does not stop the regulation, as the Court of appeal points out it (Civil court n°2, stop of June 26th, 1991, appeal n° 90-11427) being based on article 2244 of the Civil code:

Incurs the cassation consequently the stop which, to draw aside the end not-to receive drawn from the regulation opposed by a part, retains that he was addressed to this one a registered letter carrying injunction and that it signed the acknowledgment of delivery of it. (Source: Legifrance).

Within the framework of relations between a private individual and a tradesman

The term of limitation is two years.

Within the framework of relations with an operator of electronic communications (telephony, Internet)

The term of limitation is one year.

Documents establishing the reality of a debt

Two documents are fundamental and make it possible to establish, jointly, the reality of a debt:

a purchase order signed by the customer, and correctly filled (date, amount, object of order etc), and readable (attention with the copies carbon),
a delivery order signed by the customer, also correctly filled to him.

The logical consequence for a tradesman is of course to make in kind have a purchase order signed before giving following the order, and making sign a delivery order: indeed, an order by telephone does not constitute a purchase order.

Without these elements, it will be much more difficult to obtain a favorable legal decision.

Attention: An invoice is a unilateral document presented by the only tradesman. It thus does not establish at all the reality of a contract, therefore of the debt. And this even if many companies of covering of credits present to the debtor only this only document, which is manifestly insufficient.

An increasing number of litigations

The continuous increase of the number of litigations related to subscriptions Internet near suppliers of access to Internet, or on subscriptions of mobile telephony near operators, recently involved a rise of the activity of covering of credits.

Unfortunately, in many cases, the operator or the supplier transmits the file to a company of covering while at the same time the incident of payment is juridically founded because making following a problem of the absence type of supply of the service.

Under these conditions, it is once again advisable to take any mail or call of revival, with the greatest reserve, in particular if the customer is in correspondence with the supplier of access or the operator: indeed the organization of covering, elected by the supplier of access or the operator, will probably not be informed of the last developments of the file.

The client relationship supplier evolves/moves

The Commission of the abusive clauses undertook to restore a certain balance in the relations between the consumer (customer) and the service provider, in particular the suppliers of access Internet. Imbalances were of two types:

contractual obligations with the advantage of the professional,
difficulty in leaving the contractual relation for the consumer.

CCA put forth recommendations in many cases (nonexhaustive list):

the supplier has an obligation of result: the clause is abusive, in the supply agreements of access to the Internet, which transforms the obligation of result of the supplier into obligation of means;
not of inversion of the load of proof: for example in the contracts which force the subscriber to bring the proof of its not-responsibility (deterioration of material rented etc);
compensation for the consumer: the clause is abusive aiming at limiting any allowance due to the consumer.
bilateral right of cancellation: the professional cannot at the same time grant a right of cancellation in the event of failure by the subscriber his obligations, while it limits the right of the subscriber to cancel in the event of inexecution of the obligations of the supplier.

Although the commission puts forth only recommendations, those can be followed by the judges (considered clause not written by the judge).

Bonds

a site dedicated entirely and only to the covering of credits LeRecouvrement.com
Decree 96-1112 of December 18th, 1996, which one will be able as well intended to consult on the site of Legifrance,
Fichier pdf " What is necessary savoir" , Web site MCE
Question written with the government dated September 23rd, 2002 of the deputy Pierre Cardo to the Minister of Justice about the subject of the companies of covering practitioner intimidation, answer dated November 18th, 2002,
Card consumption of DGCCRF concerning the covering of credits.
Internet site of the Commission of the Abusive clauses.

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