According to the OHADA Law, in the event of any debtor failing to honour his obligation under a debt, a creditor may force such a debtor to perform such an obligation or may take provisional measures in order to preserve his rights.
Enforcement measures provided for by the OHADA Law fall into two separate categories to wit;
- Provisional or Conservatory Measures, by which a creditor may secure a debt pending a final judgment on the merits of his claim, and
- Measures of execution or enforcement measures, whereby a creditor can enforce a judgment against the assets of his debtor.
According to the OHADA Law, unless the debt is specifically guaranteed by a mortgage or other privilege, any measures must first be taken against the movable assets of the debtors. It is only if such assets are insufficient to cover the debt that measures may be taken against the debtor’s immovable assets.
Certain enforcement measures are possible only if the creditor has an enforceable right. The following are defined as enforceable rights in the context of the OHADA Law;
- A court decision which has been declared enforceable,
- A foreign deed or court decision or an arbitral award that cannot be suspended by any type of appeal and that has been declared enforceable by a court decision in the state where enforcement is sought,
- Official minutes of conciliation, signed by a judge and the parties,
- A notarized deed that has been declared enforceable, or
- A decision which, under the national law of the member state concerned, has the same effect as a court decision.
In every case, the enforceable right is evidenced by a written document which must be produced by the creditor for enforcement.
Third parties may not seek to impede enforcement measures, but on the contrary must assist in them when legally required to do so. Failure to assist may lead to liability to pay damages and a third-party holding assets which are to be seized may be ordered to make payment to the creditor out of his own assets in the event he impedes or fails to assist in the enforcement measures.
- Provisional Measures: These measures allow a creditor to obtain provisional seizure of assets belonging to his debtor. Provisional measures are exercised under two conditions to wit;
. The claim must appear to be well founded in principle,
. Circumstances must exist which are such as to jeopardize recovery of the debt.
If the creditor has no enforceable right, he must apply to the competent court for an order authorizing the measures to be taken by means of a seizure of assets.
However, there are circumstances in which no court order will be necessary even if the creditor has no enforceable right.
- Measures of Execution: These measures are used when the creditor has an enforceable right. The type of measure will depend upon the type of asset seized and the nature of the creditor’s right involved to wit;
- Forced Sale of Tangible Assets: Any creditor with an enforceable right relating to a liquidated and payable claim may seize his debtor’s tangible movable assets, whether such assets are in the possession of the debtor or a third party and may cause such assets to be sold taking payment of his claim from the proceeds of the sale. It is however subject to a special procedure.
- Forced Attribution of Third-Party Debts: This principle is used by any creditor who has an enforceable right relating to a liquidated and payable debt and he may seize any amount owed to his debtor by a third party in payment of his own claim. This is however subject to any restrictions that might exist with regard to the seizure of wages and salaries. This is subject to a special procedure.
- Seizure and Assignment of Wages and Salaries: According to this principle, any creditor with an enforceable right relating to a liquidated and payable debt may seize the wages or salaries owed to the debtor by his employer. However due to the hardship this may cause on the debtor the OHADA Law has obliged conciliation to first be attempted before a competent court.
- Seizure of Tangible Movable Assets: According to the OHADA Law there are two different types of seizure of tangible movable assets where the debtor’s obligation is not to make payment of a sum of money, but to deliver or return the particular assets that seized. These two types of seizure include; Saisie-Apprehension and Saisie-Revendication. Both types of seizure have different procedure of application.
- Seizure of Transferable Securities or Other Partnership Rights or Shareholdings: A special procedure is provided by the OHADA Law with regards to seizure by a creditor of a debtor’s transferable securities or other partnership rights or shareholdings. Such seizure must be preceded by a formal demand to pay, which must have remained unhonoured for the statutory time.
- Seizure of Immovable Assets: Due to the serious implications of such a seizure on the debtor, the OHADA Law has put in place certain preconditions which must be complied with before assets of this nature can be seized and sold. Any agreement to derogate from such preconditions is null and void. These preconditions are as follows;
- The creditor should have an enforceable right relating to the debt that is liquidated and payable,
- If the property is owned by several persons indivisibly, the debtor’s share must be ascertained through a division,
- If the creditor is beneficiary of a mortgage on part of the debtor’s property, the unmortgaged part of the property will only be sold if the sale of the mortgaged property does not meet the totality of the debt, or if all the property together forms a single business unit and if the debtor himself requires all the property to be sold.
This type of seizure must be engaged through a special procedure. Same is the case when it comes to the sale of immovable assets.