Unjustified resistance by the debtor: obtaining damages before French courts

Introduction

An unpaid bill, then silence. Or a judgment won… but never enforced. For businesses, a debtor’s resistance can quickly become a hidden cost: cash flow under pressure, management time consumed, repeated legal proceedings, and weakened credibility with banks.

French law allows certain conduct to be sanctioned by damages for abusive resistance (résistance abusive). However, the sanction is not automatic. It requires a clear fault and, above all, solid evidence.

This article explains when resistance becomes legally “abusive,” which legal bases 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 conduct by the debtor that goes beyond simple delay or a bona fide 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 position is clear.

There are two main situations:

A. When the payment concerns a contractual obligation (trial judge)

If the dispute relates to late payment of a sum of money, the principle is that the delay is remedied by default interest at the legal rate (intérêts moratoires) under Article 1231‑6 of the Civil Code. Additional compensation is possible only if you can demonstrate a loss distinct from the delay, caused by the debtor’s bad faith. This distinction determines the evidence you must provide.

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

B. When the payment concerns an enforceable title (enforcement judge)

If you have an enforceable title (titre exécutoire: judgment, order, notarial deed) and the debtor obstructs its enforcement, the enforcement judge (juge de l’exécution) may order the debtor to pay damages on the basis of Article L. 121‑3 of the Code of Civil Enforcement Procedures. This is the natural legal basis for “abusive resistance”.

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

II. The Conditions for Obtaining Damages

A. Actual, concrete damage distinct from late payment (trial judge)

The trial judge awards compensation for proven and quantified damage caused by the resistance.

Examples of relevant damages:

• Additional costs directly caused by the obstruction: bailiff’s reports, repeated service, multiple enforcement measures.
• Financial costs: overdraft fees, additional bank interest, termination/tightening of credit lines—if linked to the obstruction.
• Business disruption: documented loss of a contract, inability to deliver, contractual penalties incurred with a customer.
• Loss of use or income: e.g., inability to re‑let premises due to failure to hand over keys.

Tip: Separate procedural costs (handled under Article 700 of the Civil Procedure Code) from damage caused by the abusive resistance. Mixing them weakens the claim.

B. A valid and enforceable title and a wrongful conduct (enforcement judge)

In most cases, abusive resistance presupposes an enforceable title and prior service upon the debtor.

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

The judge distinguishes between:

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

Examples common in practice and case law:

• Repeated refusal to comply with an order (e.g., handing over keys) after service
• Multiple and manifestly unfounded challenges intended to delay the attachment
• Obstruction of enforcement operations (non‑cooperation, concealment of assets, hindrance)
• Fraudulent insolvency

Conversely, exercising an ordinary remedy is not enough to characterize abusive resistance.

C. A clear causal link (in all cases)

You must show that the damage resulted from the wrongful resistance, not merely from the existence of a dispute.‍

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

III. Illustration: The French Supreme Court Ruling of December 3, 2025

This decision confirms that a debtor cannot be held liable for abusive resistance—when the claim is based on Article 1231‑6 Civil Code—unless the creditor establishes damage distinct from mere delay.

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

A. Facts

A company (creditor) sued its contracting partner (debtor) for payment for services and sought damages for abusive resistance. The Court of Appeal awarded €6,000, reasoning that the debt was due and unpaid and that refusal to pay had “necessarily” caused damage.

B. Ruling

The French Supreme Court (Cour de cassation) partly quashed the decision, the Court of Appeal having failed to investigate the existence of damage distinct from the delay in payment, caused by the debtor’s bad faith, as required by Article 1231‑6. It then ruled on the merits and dismissed the claim: the creditor had not proved a distinct damage.

C. Practical impact

If you seek damages in addition to late‑payment interest on an unpaid invoice, you must produce concrete evidence of additional loss.

Useful evidence includes:

• Increase in financing costs triggered by non‑payment
• Contractual penalties caused by cash‑flow stress
• Loss of an identifiable business opportunity
• Documented administrative/collection costs not otherwise compensated

IV. Strategy for Handling a Commercial Dispute with a Late‑Paying Debtor

Step 1 — Secure 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 with a deadline

Objective: Demonstrating that the obligation is certain, liquidated, and due (certaine, liquide et exigible).

Step 2 — Choose the right route

• Order for payment (injonction de payer): when the debt is well documented and not genuinely disputed.
• Summary proceedings (référé): when the obligation is not seriously arguable.
• Summons on the merits (assignation au fond): for genuine disputes or complex cases.

Once you obtain an enforceable title (titre exécutoire), move to enforcement.

Step 3 — Enforce without delay

Speed helps limit:

• ‍insolvency arrangements
• ‍asset dilution
• proliferation of opportunistic challenges

Step 4 — Pick the right basis for compensation

Three options (which can sometimes be combined):

• Abusive resistance before the enforcement judge
• Additional damages beyond default interest
• Abusive proceedings

Step 5 — Calculate methodically

A good case requires clear calculations:

• Chronology of maneuvers.
• Table of heads of damage.
• Supporting documents for each head of damage.

Conclusion: Abusive Resistance Can Be Argued but Not Presumed

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

• choose the right legal ground
• document the misconduct
• prove concrete and quantified damages
• establish a direct link between the resistance and the damage

The decision of the French Supreme Court of December 3, 2025, reiterates a simple rule: 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 us today.