Unjustified resistance by the debtor: obtaining damages

An unpaid bill, then silence. Or a judgment won... but never enforced. For small and medium-sized businesses, a debtor's resistance can quickly become a hidden cost: cash flow under pressure, management time taken up, repeated legal proceedings, weakened credibility with banks.

French law allows certain behaviors to be punished with damages for abusive resistance. However, it is important to note that the penalty is not automatic. It requires a clear fault and, above all, solid evidence.

The purpose of this article is to explain when resistance becomes legally “abusive,” which laws to invoke, which judge to refer the matter to, and how to maximize your chances of obtaining compensation.

I. Abusive resistance: simple definition and common cases

Abusive resistance refers to behavior by the debtor that goes beyond simple delay or dispute. In practice, it occurs when the debtor deliberately obstructs the performance of an obligation (to pay, return property, or perform a service), even though the legal situation is clear.

There are two main situations:

A. Abusive resistance during the enforcement of an enforceable title (jurisdiction of the JEX)

When you have an enforceable title (judgment, order, notarial deed) and the debtor obstructs its enforcement, the enforcement judge (JEX) may order the debtor to pay damages on the basis of Article L. 121-3 of the Code of Civil Enforcement Procedures (CPCE).

This is the natural ground for “abusive resistance” within the meaning of the CPCE.

The enforcement judge has the power to order the debtor to pay damages in the event of abusive resistance. – Article L. 121-3 of the Code of Civil Enforcement Procedures

B. Abusive resistance in the payment of a sum of money (grounds under the Civil Code)

When the dispute concerns late payment of a sum of money, the logic is different: the principle is that the delay is remedied by default interest at the legal rate (Article 1231-6 of the Civil Code). Additional compensation is possible, but only if you can demonstrate a loss distinct from the delay, caused by the debtor's bad faith.

This distinction is crucial, as it determines the evidence that must be provided.

Damages due for late payment of a sum of money consist of interest at the legal rate, starting from the date of formal notice.

These damages are due without the creditor being required to prove any loss.

A creditor who has suffered damage unrelated to the delay due to the bad faith of a debtor in default may obtain damages separate from the default interest. – Article 1231-6 of the Civil Code

II. What are the conditions for obtaining damages for abusive resistance?

For micro-enterprises, SMEs, and mid-cap companies, the key question is what the judge actually expects.

A. A valid and enforceable title

In most cases, abusive resistance presupposes the existence of an enforceable title (judgment, order, notarial deed) and its prior notification/service on the debtor.

Good practice: keep the service document, the dates, and proof that the debtor could not have been unaware of the judgment.

B. Wrongful conduct that goes beyond simple delay

The judge distinguishes between:

• “Simple” delay: generally remedied by late payment interest.
• Serious challenge: the debtor has the right to defend themselves.
• Abusive resistance: delaying tactics, bad faith, obstruction, persistent refusal to comply with a clear decision.

Examples of behavior often considered abusive (according to practice and case law):

• Repeated refusal to comply with an order (e.g., handing over keys) despite its service.
• Multiple and manifestly unfounded challenges to delay seizure.
• Obstruction of enforcement operations (non-cooperation, concealment of assets, hindrance).
• Insolvency arrangements (schemes designed to evade enforcement), which may also be a criminal offense in some cases.

Conversely, simply “losing” a lawsuit or exercising a normal remedy is not sufficient to characterize abusive resistance.

C. Actual, concrete damage distinct from the delay in enforcement

This is the most sensitive point.

The judge does not award compensation for “feelings.” He awards compensation for proven and quantified damage caused by the resistance.

Examples of relevant damages for a company:

• Additional costs directly caused by the obstruction (reports, repeated service of process, multiple enforcement measures).
• Proven financial costs (agios, additional bank interest, credit line termination) if you can link these costs to the obstruction.
• Disruption of business: documented loss of a contract, inability to deliver, penalties incurred with a customer.
• Loss of use or income: for example, inability to re-let premises due to failure to hand over the keys.

Tip: clearly separate what constitutes procedural costs (often discussed under Article 700 of the CPC) from what constitutes independent damage (abusive resistance). Mixing the two weakens the credibility of the claim.

D. A clear causal link

You must demonstrate that the damage resulted from the wrongful resistance, not simply from the dispute.

The right wording: “Without this maneuver/blockage, the damage would have been avoided or reduced because...”.

III. An illustration: The ruling of December 3, 2025

This decision illustrates the principle that a debtor cannot be convicted of abusive resistance without characterizing damage that is distinct from simple delay, when the claim is based on Article 1231-6 of the Civil Code.

Reference of the decision: Cass. com., Dec. 3, 2025, No. 24-16.086 (ECLI:FR:CCASS:2025:CO00620).

A. Summary of the facts

A company (creditor) sued its co-contractor (debtor) for payment of a service and also claimed damages for abusive resistance.

The Court of Appeal had ordered the debtor to pay €6,000 on the grounds that the debt was due and unpaid and that the refusal to pay had “necessarily” caused damage.

B. The solution of the Court of Cassation

The Court partially overturned the decision, criticizing the Court of Appeal for failing to investigate the existence of damage distinct from that resulting from the delay in payment, caused by the debtor's bad faith, as required by Article 1231-6 of the Civil Code.

It even ruled on the merits and dismissed the claim: the creditor failed to prove damage separate from the late payment.

C. What this changes for creditors

Practical message: if you claim damages “in addition” to late payment interest on an unpaid invoice, you must provide concrete evidence of additional damage.

Examples of useful evidence in this type of case:

• bank refusal or increase in financing costs due to non-payment,
• contractual penalties incurred due to cash flow problems,
• loss of an identifiable business opportunity,
• documented administrative and collection costs not already covered by other mechanisms.

IV. How to handle a commercial dispute with a bad payer?

Here is a pragmatic strategy, suitable for microbusinesses, SMEs, and mid-cap companies.

Step 1: Secure your evidence from the first unpaid invoice

To be gathered immediately:

• contract, quote, purchase orders,
• proof of delivery/performance,
• invoices and due dates,
• correspondence (emails, reminders),
• formal notice (ideally clear, dated, quantified, with a deadline).

Objective: to make the existence of a certain, liquid, and enforceable obligation indisputable.

Step 2: Choose the right route (amicable, injunction, summary proceedings, summons)

• Order to pay: useful if the debt is not particularly disputable and is well documented.
• Summary proceedings: useful if the obligation is not seriously disputable.
• Summons on the merits: if the debtor is genuinely disputing the debt or if the case is more complex.

If you obtain an enforceable title, you then move on to enforcement.

Step 3: Once the title has been obtained, move into enforcement mode (without delay)

Time is often against the creditor. Rapid enforcement limits:

• the organization of insolvency,
• the dilution of assets,
• the proliferation of opportunistic disputes.

Step 4: Identify the right basis for seeking compensation

Three options (which can sometimes be combined, but must be clearly distinguished):

• Abusive resistance before the JEX (L. 121-3 CPCE) if the abuse relates to the enforcement of the enforceable title.
• Additional damages beyond late payment interest (1231-6 Civil Code) if you can prove separate damage related to bad faith.
• Abusive proceedings (1240 Civil Code / 32-1 CPC) if the wrongful conduct is primarily procedural (delaying tactics, malice, reprehensible recklessness).

Step 5: Calculate methodically

A good case requires clear calculations.

• Chronological table of maneuvers,
• table of items of damage,
• supporting documents for each item.

V. Conclusion: Abusive resistance can be argued but cannot be presumed

For a company, seeking a conviction of the debtor for abusive resistance can be an effective lever, but only if the strategy is well defined:

• choose the right legal ground (enforcement before the JEX, or late payment with separate damages),
• document the misconduct (delaying tactics, bad faith, obstruction),
• prove concrete and quantified damages,
• establish a direct link between the resistance and the damage.

The decision of the Court of Cassation of December 3, 2025, reiterates a simple requirement: you cannot win with general assertions. The judge wants facts, evidence, and proven damages.

Need assistance in a commercial dispute or dealing with a recalcitrant debtor? Contact the firm today.