Definition and purpose of a payment order
In the context of a market economy, contractual relationships between parties, including those concluded between a professional and a contracting authority, as this entity is defined in the provisions of art. 1.014 of the Code of Civil Procedure, may give rise to disputes involving non-payment of debts.
The payment order is in essence a special judicial procedure, expressly regulated in the legal provisions, by means of which creditors are given the possibility to obtain a rapid judgment against bad debtors without the need for complex evidence, the law expressly limiting the evidence to the category of written documents only.
Therefore, the payment order procedure is regulated within the provisions of articles 1.014 - 1.025 of the Code of Civil Procedure, it being mentioned that this procedure applies only in the event of the creditors proving the existence of a certain, liquid and due claim consisting of the obligation to pay sums of money resulting from a civil contract.
Conditions of applicability of the payment order
In line with the above, in order for a creditor to be able to follow this special procedure, it is necessary to prove the existence of a certain, liquid and due claim and the fact that this claim arises from a civil contract.
The existence of a civil contract between the parties (such as, for example, a contract for the provision of services) is an essential condition, without which it is not possible to make a special application for a payment order.
You should therefore bear in mind that, in the absence of a valid contract between the parties, you cannot make use of this special payment order procedure.
The claim is CERTAIN when its existence is beyond doubt, being the result of the creditor's performance of the contractual provisions in accordance with the contract and of the debtor's failure to perform its correlative obligations.
More specifically, if, for example, a service contract has been concluded between the parties and the creditor has rendered the services to which he has committed himself, the debtor is obliged to pay the value of those services. If the debtor fails to make voluntary payment of the amount owed, the creditor has this special procedure available to him in order to obtain an enforceable title (court judgment) and thus ultimately recover the debt owed to him.
The claim is LIQUID when it has a concretely determined value, e.g. a sum of money.
The claim is ENFORCEABLE if the debtor's obligation has fallen due, or more precisely, if the time by which the debtor could have made payment in accordance with the due date has expired.
Prior procedure
Creditors whose claims are certain, liquid and due and who wish to make use of this procedure have the legal obligation to communicate to the debtors, through the bailiffs or, where appropriate, by registered letter, with declared content and acknowledgement of receipt, a summons, by which you will instruct the debtor to pay the amount due within 15 days from the date of communication of the summons at the latest.
ATTENTION! - if you have not been legally served with that summons, you will not be able to apply to the competent court for a judgment on the issue of a payment order.
You should be aware that this summons, once served, interrupts the statute of limitations, but ONLY if the claim is brought within 6 months from the time of the default (the time when the summons was served).
Procedure for obtaining a payment order
If the debtor does not comply with the payment order you served on him within the 15-day period indicated in the payment order, you can apply to the competent court for an order for payment.
In accordance with the provisions of art. 1.017 of the Code of Civil Procedure, the application must include the following: "(…) a) the name and surname, as well as the domicile or, as the case may be, the name and registered office of the creditor;
b) name and surname, personal identification number, if known, and domicile of the debtor who is a natural person, and in the case of a debtor who is a legal person, the name and registered office, and, where applicable, if known, the unique registration code or tax identification code, the number of registration in the commercial register or in the register of legal persons and the bank account;
(c) the amount of the claim, the factual and legal basis of the obligation to pay, the period to which they relate, the time limit by which payment should have been made and any element necessary for the determination of the debt;
d) the amount representing the related interest or other compensation due to the creditor, according to the law; e) the signature of the creditor.".
What documents are required to be attached to the request for issuing a payment order?
It is also important to attach to the application the documents proving the existence of the claim and that it is certain, of a fixed amount and due.
In the same sense, the application for the issuance of the payment order must be stamped, thus requiring the prior payment of a judicial stamp duty in the amount of 200 lei, which is to be attached to the initial application.
The application for an order for payment must be substantiated both in fact and in law and shall be examined by the competent court on the basis of the documents submitted, thus establishing its admissibility or inadmissibility, as the case may be.
IT IS IMPORTANT TO KNOW that the debtor has the obligation to lodge a statement of defense to the application for the order for payment, this document must be lodged with the court at least 3 days before the first date of the first court session.
What happens if the debtor disputes the claim?
If the debtor contests the existence of the claim or, as the case may be, the fact that the claim is certain, of a fixed amount or due, the court shall examine whether the objection is well-founded on the basis of the documents submitted in the case file and on the basis of the explanations and clarifications offered by the parties, and if it finds that the defense is well-founded, it shall reject the application for a payment order by order.
Also, if the substantive defenses raised by the debtor require further evidence which is incompatible with the special order for payment procedure but compatible with the ordinary procedure (the lodging of a normal application for a writ of summons), the court will reject the application for a payment order by order.
IMPORTANT is the fact that in both situations, you, as a creditor, have the possibility to apply to the competent court with a claim under common law, and all the necessary evidence will be submitted in order to have the case settled in accordance with the law.
If the court finds that your claim is well-founded, it will uphold it and thus order the payment order against the debtor.
The judgment pronounced by the trial court essentially represents an enforceable title, even in the event that it is challenged with a request for annulment, as we will present below.
Appeal against the payment order
Against the payment order, the debtor may lodge an application for annulment within 10 days at the latest from the date of communication of the act.
If the court has rejected the creditor's claim or has partially accepted it, the creditor also has the possibility to file an application for annulment within the same time limit of 10 days from the date of communication of the act.
In accordance with the provisions of art. 1.024 paragraph (3) of the Code of Civil Procedure, "the request for annulment may only invoke the failure to comply with the requirements provided for in this title for the issuance of the payment order, as well as, if applicable, causes for the extinguishment of the obligation subsequent to the issuance of the payment order.".
The judgment to be given by the competent court in the application for annulment procedure is final, but the creditor whose application has been rejected may nevertheless bring an action under the ordinary procedure, as indicated in the previous paragraphs.
What are the advantages of this procedure?
The payment order procedure has several advantages, including:
- rapidity - as a rule, the case is settled by the court within a maximum of 2 terms, thus enabling the creditor to enforce his claim within a relatively short time;
- low costs - the stamp duty required to be paid is a standard one, in the amount of 200 lei, and it is not necessary to pay a stamp duty in relation to the value of the subject matter of the application for a summons, as is the case in the ordinary procedure;
- simple evidence, being admissible only the evidence of the documents submitted in the case file, thus not being able to incur additional costs, such as for example those necessary to carry out an expert report;
- the enforceability of the order made by the court of first instance, which can be enforced even if the debtor appeals against it with an application for annulment.
Are you a natural person or a professional in a situation of deadlock caused by the impossibility of recovering the debt owed to you by the debtor under the contractual provisions between the parties?
Te invit să mă contactezi cu încredere, to receive the necessary legal information to resolve your problem, assistance and representation before the competent courts, as well as assistance in the enforcement procedure, so that you can be sure that all necessary steps have been taken to recover your claim.
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