Seizure for sale: fundamental principles and requirements

Seizure for sale is regularly used to obtain compulsory payment of a debt. But do you know how it works? When can it be used? Who can use it and against whom? Our law firm specialising in enforcement procedures analyses the key aspects of this procedure.

Introduction: what is an attachment for sale?

Seizure and sale allows a creditor with a writ of execution to sell the assets of a company. tangible movable assets of its debtor to pay itself out of the sale price. This enforcement procedure is governed by articles L. 221-1 to L. 221-6 and R. 221-1 to R. 221-61 of the French Code of Civil Enforcement Procedures.

Seizure and sale serves two distinct purposes:

• Conservatory: making the debtor's assets unavailable
• Payment: obtaining a forced sale of assets to recover your debt

The entry into force of the Code of Civil Enforcement Procedures (1 June 2012) modernised this procedure, formerly known as "seizure and execution".

Legal foundations of seizure and sale

The legislator's objectives

The Code of Civil Enforcement Procedures places attachment for sale after other less traumatic measures such as attachment for payment and attachment of wages. The legislator thus sees it as a subsidiary method of enforcement, particularly for small claims.

That's right, enforcement against assets is the consequence of the principle laid down in article 2285 of the Civil Code, according to which the debtor's entire assets constitute the general pledge of his creditors (Art. 2285 C. civ.).

Revaluation of the enforcement order

The reform of civil enforcement procedures has strengthened the effectiveness of the enforcement order, making it possible to enforce the debt.addition of creditors. The creditor may now seize the debtor's assets, whether or not they are held by the debtor (Article L. 221-1 of the CPC exéc.).

Seizure and sale also authorises the debtor to sell the seized assets out of court (Article L. 221-3 of the CPC exéc.), which promotes better debt recovery.

Humanising enforcement procedures

1. One month deadline for amicable sale
2. Systematic posting of notices in front of the debtor's home to be abolished
3. Obligation to inform the debtor at every stage

The judicial officer plays a central role between efficiency and humanisation. Article L. 122-1 of the CPC exéc. gives him a monopoly on enforcement procedures and the responsibility of adapting the measures while ensuring that the costs remain proportionate to the claim.

From 1 July 2022, this function will be performed by judicial commissioners (Order no. 2016-728 of 2 June 2016).

Subjective conditions for seizure and sale

Who can lodge a complaint?

To carry out an attachment for sale, the creditor must be in possession of the goods:

• Legal capacity (assimilated to the capacity to exercise a movable share)
• A writ of execution evidencing a debt that is due and payable in full
• Having previously served a summons to pay

For minors and protected adults, the legal administrator or guardian will act. Article 467 of the Civil Code allows an adult under guardianship to initiate a seizure and sale on his or her own, as this is an act of administration.

In the case of married spouses, the matrimonial regime determines the power to act:

• For own property: each spouse may seize the property alone
• For joint property: both spouses have this power since Law no. 85-1372 of 23 December 1985

Contractual agents may also act. Delivery of the writ of execution to the bailiff constitutes authority for any execution other than real property execution (Article 507 CPC).

Against whom can the seizure be directed?

Seizure for sale can be carried out against:

• The defaulting debtor (Article L. 111-1 CPC exéc.)
• His successors (heirs, legatees)
• A third party holding the debtor's assets

The conditions for seizure vary depending on the situation:

• Seizure at the home of a third party requires the authorisation of the enforcement judge (Article L. 221-1, para. 3 CPC exéc.)
• For claims of less than €535, seizure in the debtor's residential premises is subsidiary (Article L. 221-2 CPC exéc.).

Special cases

Death of the creditor or debtor

If the creditor dies, his heirs will continue the procedure after service of the death certificate and notarisation. A universal legatee must produce the will and, if necessary, the deed of delivery of the legacy.

In the event of the debtor's death, Article 877 of the Civil Code requires:

• Prior service of the writ of execution on the heir
• A period of 8 days before prosecution

The declaration of acceptance up to the amount of the net assets (ACAN) halts all enforcement proceedings for 15 months (Article 792-1 C. civ.).

Spouses and PACS

Solidarity between spouses plays a decisive role:

• Household debts are jointly incurred by the spouses (Article 220 C. civ.)
• Under the common law, a personal debt can be used to seize joint assets (Article 1413 C. civ.).
• Tax solidarity applies to the payment of taxes (Article 1691 bis CGI)

For PACS partners, article 515-4 of the Civil Code provides for similar solidarity for day-to-day needs, and article 1691 bis of the General Tax Code provides for tax solidarity identical to that of spouses.

For cohabitants, there is no legal solidarity unless a false appearance of marriage is created and invoked by third parties (CA Rouen, 30 Oct. 1973: D. 1974, p. 19).

Immunity from execution

Certain debtors benefit from immunity from execution:

• Legal entities governed by public law (State, départements, municipalities)
• Foreign States, unless otherwise provided by law (Article L. 111-1-2 CPC exéc.)

In addition, seizure and sale can be affected by insolvency proceedings and household over-indebtednesswhich suspend or prohibit individual prosecutions.

Act no. 2016-1691 of 9 December 2016 (Sapin 2 Act) clarified the conditions for seizing the assets of foreign States, requiring prior judicial authorisation. Diplomatic missions benefit from enhanced protection (Article L. 111-1-3 CPC exéc.).

For sole proprietors with limited liability (EIRL), only the affected assets are liable for business debts (Article L. 526-12 of the French Commercial Code).

Sources

• Code of Civil Enforcement Procedures, articles L. 221-1 to L. 221-6 and R. 221-1 to R. 221-61
• Civil Code, articles 467, 877, 1413, 2284 and 2285
• General Tax Code, article 1691 bis
• French Commercial Code, article L. 526-12
• Order no. 2016-728 of 2 June 2016 on the status of judicial commissioner
• Law no. 85-1372 of 23 December 1985 on the equality of spouses
• Act no. 2016-1691 of 9 December 2016 (Sapin 2 Act)
• CA Rouen, 30 Oct. 1973, D. 1974, p. 19