Civil Law and Commercial Law Essentials
Obligations and contracts
A bailiff must master the law of obligations: formation of contract (offer, acceptance, consideration in the civil sense), capacity, consent, cause, and object. Understand the rules on nullity (absolute vs relative), on performance and non-performance, and on damages. Know the mise en demeure (formal notice) and its role in triggering default.
Security and guarantees
Know the principal securities: cautionnement (suretyship), gage (pledge), hypothèque (mortgage), and privilèges (liens). Understand their ranking and their effect on enforcement. A bailiff frequently encounters these when executing a title.
Commercial law
Understand the status of the trader (commerçant), commercial obligations, the commercial court, and commercial evidence rules. Know the rules on company forms (SA, BV, VZW), their legal personality, and the consequences of insolvency.
Insolvency
Master the basics of the insolvency regime: the faillite (bankruptcy), the réorganisation judiciaire (judicial reorganisation), and collective debt settlement. Know that certain enforcement actions are stayed during reorganisation.
Traps
- Confusing nullité relative (protects a private interest) with nullité absolue (public order).
- Forgetting that a mise en demeure is generally required before damages for delay.
- Treating a suretyship as automatically extinguishing the principal debt.
- Missing the stay on enforcement during judicial reorganisation.
Rule of thumb
When a question involves a guarantee, ask: who is the principal debtor, who is the surety, and what is the ranking of the security? When it involves a company, ask: is it solvent, and is there a stay on enforcement?
Worked example
A surety (caution) is sued for the debtor's debt. The surety may invoke the bénéfice de discussion (requiring the creditor to first pursue the debtor) unless waived. The bailiff must verify the scope of the guarantee before executing against the surety.