<= Recovery

This procedure may be initiated where there is an unquestionable debt due for immediate payment arising from a contract or where there is a commitment arising from the issuance or acceptance of any negotiable instrument or any cheque for which cover was found to be inexistent or insufficient (art. 2 of the Uniform Act organizing Simplified Recovery Procedures and Measures of Execution UASRP).

The request shall be made in the form of a petition to the competent court of the residence or place of abode of the debtor (or one of the debtors if there are several debtors) (art. 3 § 1 UASRP). In the absence of opposition within 15 days from notification of the injunction to pay, the creditor may request the insertion in the ruling of an executory clause that shall have the effects of a decision after trial and shall no more be appealable (art. 16). 

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Injunction to secure the delivery or restitution  of a specific personal property

This procedure may be initiated only by a person who claims to have the right to demand the delivery or restitution of a specific, tangible, personal property who shall then petition the president of the competent court to order such a delivery or restitution (art. 19 and 20). 

In the absence of opposition within 15 days from notification of the injunction to deliver or restitute, the creditor may request the insertion in the ruling of an executory clause that shall have the effects of a decision after trial and shall no more be appealable
(art. 27).

Measures of execution

In the absence of voluntary execution, such measures may be initiated by any creditor, regardless of the nature of his/her claim : 

- to compel the defaulting debtor to honour his obligations towards him 

- or to take preventive measures to secure his/her rights. 

Save the case of a debt secured by a mortgage or a preferential debt, execution shall be carried out primarily on personalty and, where this is insufficient, on immovable property (art. 28).

Compulsory distraint is however available only to creditors who can show an unquestionable debt due for immediate payment, subject to the provisions relating to the apprehension and claim of movables (art. 31).

With the exception of the auction sale of immovable property, compulsory distraint may be pursued to term by virtue of a writ of provisional execution. 

Execution shall then be carried out at the creditor's risk, in that if the writ happens to be modified subsequently, he shall fully make good of any damage caused by the execution, even where there is no fault on his part (art. 32). 

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Sequestrations

A sequestration may be initiated by any person whose claim appears legitimate in principle who may, by petition, request from the competent court of the residence or place of abode of the debtor an authorization to take preventive measures on all his debtor's tangible and intangible property, without prior summons to pay, where he/she can show justifiable circumstances which are likely to jeopardize the collection (art. 54). Such an authorization is not necessary when the creditor avails himself of a writ of execution or in the case of default in payment, duly ascertained by an accepted bill of exchange, promissory note, cheque or unpaid rent (art. 55 and 56). 

Sequestration may be carried out on all the tangible or intangible property belonging to the debtor. It shall render such property unalienable (art. 56). 

Seizure for sale

It may be initiated by any creditor in possession of a writ of execution showing a debt due for immediate payment, after notification of a summons, in order to proceed to the seizure and sale of the debtor's tangible property, whether theasid property is held by the debtor or not (art 91).

Seizure-award of debts

It may be inititiated by any creditor in possession of a writ of execution showing a debt due for immediate payment by seizure in the hands of third parties of the debtor's debts in the form of money (art. 153).

Seizure-apprehension and seizure under a prior claim of tangible property

Tangible property liable to delivery or restitution may only be apprehended by virtue of a writ of execution and, where necessary, by an injunction of the competent court which has become enforceable. The same property may also be rendered inalienable before any apprehesion by means of a seizure under prior claim (art. 218)

Seizure of partnership rights and transferable securities

It is possible 8 days after unproductive summons to pay under the terms and conditions provided for in article 237 and subsequent articles of the UASRP).

Attachment of real property

It may be initiated by any creditor in possession of : 

- a writ of execution showing a liquid and due debt,

- or a provisional writ of execution, or an unliquidated cash debt, but in this case, an auction may only be carried out on the basis of a conclusively enforceable writ after liquidation (art. 247).

As long as the undertaking is in a good financial condition, its creditors will recover their debts in the framework of standard debt collection proceedings or of the summary debt collection procedures summarized here above. When this is no more the case, collection of the debts will occur in the framework of insolvency law.

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The various types of insolvent debtors according to Ohada Law

The Uniform Act organizing the proceedings for the collection of insolvent debtors' debt identifies  three categories of insolvent debtors governed by special rules  as to the payment of their debts :

- At a first stage of difficulties, there are companies experiencing temporary difficulties which need, at some point, to have some measures enabling them to overcome these difficulties. It often appears that these measures enable them again to continue their activities normally, whereas in the absence of such measures, their situation is likely to worsen. Companies in this category will generally be eligible for the preventive procedures of conciliation and voluntary agreement, which are designed to safeguard companies in difficulty and to settle their debts before the suspension of payments.

Indeed, conciliation, open to structures experiencing proven or foreseeable difficulties but who are not yet in a state of suspension of payments, aims at settling an amicable agreement with the debtor's main creditors and co-contractors, to put an end to these difficulties.

The voluntary agreement is, for its part, open to the debtor who, without being in a state of suspension of payments, proves that he is in serious financial or economic difficulties.

- At a second level, are undertakings faced with more serious difficulties without being in an irremediably hopeless situation, so that if they benefit from a set of appropriate measures, they may recover a sound situation and resume their activities normally whereas otherwise, their economic and financial situation will deteriorate very rapidly up to the closing down. Such undertakings shall be under administration of their affairs supervised by the court.

- At the last level, are undertakings with an irremediably hopeless situation for which the only solution is to try to sell their assets to pay their debts : such undertakings shall be under the scheme of liquidation of property.
 

Debt collection on insolvent debtors

- Debt collection on undertakings under conciliation : it shall occur in the framework of an amicable agreement granted by the creditors to put an end to the debtor's difficulties.

- Debt collection on undertakings under voluntary agreement : it shall occur in the framework of a composition to the satisfaction of the debtor's debts the terms and conditions of wich shall be fulfilled by thesaid debtor.

- Debt collection on undertakings under administration supervised by court : it shall also occur in the framework of a composition to the satisfaction of the debtor's debts, the terms and conditions of wich wil have to be fulfilled by thesaid debtor.

- Debt collection on undertakings under liquidation of property : it shall occur in the framework of the sale of the debtor's assets and shall depend on how important are respectively the available assets and the debts to pay.