Seizures of tangible movables: instructions for use

When it comes to debt collection, seizure is an invaluable tool. Far from being a trivial measure, it allows you to temporarily freeze a debtor's assets without waiting for a writ of execution. This procedure responds to the urgency of a situation where the debtor's assets could evaporate. Here's how to navigate these often unfamiliar procedural waters.

1. When should you seize your debtor's personal property?

Attachment meets two essential conditions set out in Article L. 511-1 of the French Code of Civil Enforcement Procedures:

• A claim that appears to be well-founded in principle
• Circumstances likely to jeopardise recovery

The first condition does not require a claim to be certain. An appearance that the claim is well-founded is sufficient. The claim need not be liquid or due. Case law even admits conditional claims.

For the second condition, the threat may take various forms: imminent insolvency, risk of disappearance of assets, or suspicious behaviour on the part of the debtor. Persistent silence after formal notice may be a relevant indicator.

What is special about this procedure? It is carried out without an enforcement order. Article L. 511-2 of the Code of Civil Enforcement Procedures even provides for cases where prior judicial authorisation is not required, in particular when the creditor already has an enforceable title or a court decision that is not yet enforceable.

2. Scope of protective seizure of tangible movables

Seizable assets

Article L. 522-1 of the Code of Civil Enforcement Procedures defines the scope of this measure. It can apply to all tangible assets belonging to the debtor: furniture, vehicles, goods, professional equipment, valuables, etc.

These assets remain in the debtor's assets during the proceedings, but become legally unavailable. A Court of Appeal has ruled that "distributable profits attached to shares in companies are considered to be the debtor's pecuniary rights" (Civ. 2e, 21 June 2007, no. 06-13.386).

Unseizable assets

Certain assets are exempt from this measure. Article L. 112-2 of the Code of Civil Enforcement Procedures sets out a list of assets that cannot be seized, including :

• Goods necessary for the debtor's daily life and work
• Essential items for disabled people
• Assets needed to carry out professional activities (within certain limits)
• Items used for patient care

Interesting case law has established that "dental prostheses cannot be seized once they have been installed" (Civ. 1re, 9 Oct. and 11 Dec. 1985).

Buildings are also excluded from the scope of application, including buildings by destination. An exception is made for unpaid vendors, who may seize property attached to a business to pay the price.

3. Implementing data capture

The role of the bailiff

Only a bailiff can carry out this seizure (art. L. 122-1 of the Code of Civil Enforcement Procedures). His first task? Present the debtor with the judge's authorisation or the deed permitting the seizure.

The bailiff must also ask the debtor whether he or she has been the subject of a previous seizure on the same assets. This information is vital because it can influence the procedure.

If access is refused, article L. 142-1 of the same code authorises the bailiff to use the forced opening procedure. Note, however, that following a recent decision by the Court of Cassation, "a protective measure may not be taken in a place used by the debtor as a dwelling without the authorisation of the enforcement judge" (Civ. 2e, 17 Sept. 2020, no. 18-23.629).

The content of the writ of attachment

Article R. 522-1 of the Code des procédures civiles d'exécution (French Code of Civil Enforcement Procedures) requires the seizure deed to include a number of items, on pain of nullity:

1. Statement of title or authorisation by the judge
2. Detailed description of seized assets
3. Mention of the debtor's declarations on any previous seizures
4. Information that the assets are unavailable and in the debtor's custody
5. Mention of the debtor's right to request release
6. Reproduction of certain legal texts
7. Indication of who is present at the time of entry

These formalities are not purely formal. Failure to comply with them may render the proceedings null and void, subject to proof of prejudice in accordance with article 114 of the Code of Civil Procedure.

Informing the debtor

If the debtor is present, the bailiff immediately gives him a copy of the writ of attachment (art. R. 522-2 of the Code of Civil Enforcement Procedures). This delivery is equivalent to service.

In its absence, article R. 522-3 requires subsequent service with an invitation to inform the bailiff within eight days of the existence of any previous seizure.

This information is a crucial procedural milestone. It starts the period for contesting the claim and interrupts the limitation period.

4. Effects of seizure

Unavailability of assets

The main effect of the protective attachment is to render the assets legally unavailable (art. L. 521-1 of the Code of Civil Enforcement Procedures). This unavailability prevents the debtor from disposing of the assets or moving them.

Failure to comply with this prohibition exposes the debtor to criminal penalties. Under article 314-6 of the French Criminal Code, misappropriation of a seized object is an offence punishable by three years' imprisonment and a fine of 375,000 euros.

Case law has provided important clarifications on this point. For example, an account-holding banker must inform the judge authorising the liquidation of an account of its unavailability as a result of a protective attachment (Civ. 2e, 23 Nov. 2006, no. 05-10.933).

Continued use by the debtor

Paradoxically, unavailability does not prevent all use. Article R. 522-4, which refers to article R. 221-19 of the Code of Civil Enforcement Procedures, provides that the debtor retains the use of the assets, provided that they are not expendable.

This well-balanced provision avoids total paralysis of the debtor's assets, particularly in the case of professional tools or goods used on a daily basis.

Seized assets may still be moved in exceptional cases and for legitimate reasons (art. R. 221-13). In such cases, the debtor must inform the creditor in advance of the place where the assets are to be located.

In the case of vehicles, immobilisation may be ordered until they are removed for sale.

5. Conversion to attachment for sale

Attachment is only a first step. To proceed to compulsory execution, the creditor must obtain a writ of execution and convert the measure into a seizure for sale.

The act of conversion

Article R. 522-7 of the Code of Civil Enforcement Procedures governs this conversion by means of a bailiff's deed served on the debtor. To be valid, this document must state :

1. Reference to the seizure report
2. The enforcement order
3. Separate statement of amounts payable
4. Order to pay within eight days

If the seizure has been effected in the hands of a third party, a copy of the conversion deed must be served on the third party.

It should be noted that the opening of insolvency proceedings after the protective attachment but before the conversion entails the release of the attachment, as the Court of Cassation has stated: "the cessation of enforcement proceedings as a result of the opening of insolvency proceedings entails the release of any protective attachment of tangible movable property where, on the date of the judgment, the seized property has not yet been sold" (Com. 2 Feb. 1999, no. 96-17.517).

The sale procedure

Once the conversion deed has been served, the debtor has eight days to pay. If they fail to do so, the sale procedure is initiated (art. R. 522-8).

The bailiff must first check the seized goods against the description in the initial deed. If any items are missing or damaged, a statement of facts is drawn up.

Article R. 522-9 stipulates that the debtor must inform the bailiff of the location of the missing assets or, if they have been subject to a seizure for sale, provide the bailiff's contact details.

After verification, the debtor has one month to sell the assets out of court. Failing this, the forced sale is organised in accordance with the rules applicable to seizure and sale.

6. Multiple seizures

In practice, there is often competition between creditors. Article L. 521-1, paragraph 3, of the Code of Civil Enforcement Procedures expressly authorises multiple protective attachments on the same assets.

When a new seizure is made on assets that have already been seized, the bailiff who carries out this second measure must inform the previous creditors. Article R. 522-11 requires a copy of the seizure report to be served on each creditor.

This mutual information is fundamental as it enables competition between creditors to be organised when distributing funds. However, there is no specific time limit or penalty for this information obligation.

In the event of an amicable sale proposed by the debtor, article R. 522-13 provides for a special procedure. The distraining creditor who accepts the proposal must inform the other creditors, who have fifteen days to take a position.

If a compulsory sale is necessary, article R. 522-14 requires the creditor who has the assets removed to inform the other creditors. The other creditors must then declare the amount of their claim to the official responsible for the sale, failing which they lose their right to participate in the distribution.

Sources

• Code des procédures civiles d'exécution, in particular articles L. 111-1 et seq, L. 511-1 to L. 512-2, L. 521-1, L. 522-1, L. 523-1, R. 511-1 to R. 512-3, R. 521-1, R. 522-1 to R. 522-14
• Civil Code, article 2350
• Criminal Code, article 314-6
• Civ. 2e, 21 June 2007, no. 06-13.386, Bull. civ. II, no. 170
• Civ. 1re, Oct. 9 and Dec. 11, 1985, RTD civ. 1986. 427
• Civ. 2e, 23 Nov. 2006, no. 05-10.933, Bull. civ. II, no. 328
• Civ. 2e, 17 Sept. 2020, no. 18-23.629, Procédures 2020, no. 196
• Com. 2 Feb. 1999, no. 96-17.517, Bull. civ. IV, no. 36
• PIÉDELIÈVRE Stéphane and GUERCHOUN Frédéric, "Saisies et mesures conservatoires", Répertoire de procédure civile, Dalloz, June 2021.