The seizure of a sum of money is a procedure dreaded by debtors and an essential tool for creditors. It enables the creditor, armed with a writ of execution, to obtain payment directly from a third party who owes money to its own debtor, usually a bank. However, French law does not provide for just one procedure, but several distinct ones, the choice and application of which depend on the type of debtor. type of the claim or the status of the parties. This article offers a comparative overview of these complex mechanisms, which are often the source of disputes, and includes the more technical aspects, for example the precautionary seizureare detailed in our dedicated publications on the subject. A misjudgement of these rules can have significant financial consequences, which is why a precise legal analysis is needed to ensure the security of the contract. collecting your debts.
The general legal framework for the seizure of money claims
To understand the diversity of attachment procedures, it is first necessary to understand the common law mechanism that serves as a reference: attachment for payment. This is the most common form of enforcement, and the rules governing it are laid down by the law and its regulations. decree of application, has profoundly inspired the other procedures.
Fundamental principles of attachment for payment (ordinary law)
Attachment is a procedure whereby a creditor, through the intermediary of a third party, seizes a debtor's property. commissioner of justice (formerly bailiff), constrained by a act a third party (the garnishee) to pay him the sums that the latter owes to his debtor (the garnishee debtor). This is of considerable practical importance, particularly in banking matters, where it makes it possible to seize funds available in accounts. Legal writers have long wondered about the legal nature of book moneyHowever, it is now accepted that the object of the seizure is the depositor's claim for restitution against his bank. The major innovation of the Act of 9 July 1991, clarified by decreelies in the effect of immediate attribution from theact In the event of seizure, the claim is removed from the debtor's assets and attributed to the seizing creditor, in accordance with to this disposition legal. This immediate transfer, which strength date of this reform, protects the creditor against the concurrence of other creditors or the opening of proceedings. judicial against the debtor.
The transfer order and its irrevocability
The credit transfer is now the main instrument for transferring funds. Understanding its mechanics is essential, as it interferes with seizure procedures. Once a transfer order has been received by the originator's payment service provider, it becomes irrevocable by virtue of thearticle L. 133-8 of the French Monetary and Financial Code. This principle, often reiterated by the jurisprudenceThis has a direct impact on the effectiveness of an attachment. An attachment carried out on the originator's account after the transfer order has become irrevocable but before the funds have been credited to the originator's account. recipient raises complex questions about the fate of funds in transit, a subject which is the subject of numerous doctrinal debates.
Inventory and distinction of seizure procedures
In addition to the seizure-attribution under ordinary law, the legislator has instituted exceptional procedures, justified by the particular nature of the claim to be recovered. recover or the claim being seized. This diversity calls for a comparative analysis to determine the most appropriate tool and provide a clear picture of the situation. answer appropriate to each situation.
A typology of five main procedures
French law on enforcement of monetary claims is based on five distinct procedures. Attachment for payment (articles L. 211-1 et seq. of the Code of Civil Enforcement Procedures, specified by decree) is the standard procedure. It is accompanied by four exceptional procedures:
- Attachment of earnings, or wage garnishmentgoverned by the French Labour Code.
- The request for direct payment maintenance payments, a disposition specific for receivables family.
- Data entry administrative (SATD), which replaces the former third-party noticesused by theadministration tax authorities and other public creditors such as the Treasury.
- Third-party opposition, used by social security bodies to recover contributions or a service social unpaid.
Distinctive and specific criteria
The distinction between these procedures is based on their cause or purpose. Direct payment, SATD and opposition à tiers détenteur are characterised by the nature of the debt to be paid. recover (foodtax and social security, for example a assistance unduly paid). Attachment of earnings, on the other hand, is defined by the nature of the debt attached (the salary or any other remuneration). Another fundamental difference is the attributive effect. Whereas attachment for payment, SATD or direct payment organise an immediate allocation to the creditor, attachment of remuneration obeys a logic of distribution and competition between several creditors, managed by a court commissioner dispatcherThis is to ensure that debtors are not suddenly deprived of all their resources. Each seizure procedure is therefore unique.
Specific issues relating to the seizure of bank debts
Attachment of bank accounts is the most widespread form of attachment. It raises problems of its own, linked to the debtor's marital status, the number of accounts held or the nature of the funds in transit. It is therefore of great interest to understand the mechanisms involved.
Impact of seizure on couples' accounts
The legal status of the couple has a direct impact on the extent of the assets that can be seized. For cohabitees, the principle is separation of assets. For PACS partners and spouses, there is joint and several liability for everyday debts (in accordance with at art. 515-4 and 220 of the Civil Code). However, it does not apply to loans unless they are for "modest sums necessary for everyday needs". The jurisprudence of the Court of Cassation assesses this notion on a case-by-case basis, without any fixed threshold, by comparing the amount of the loan to the household's standard of living and its ability to reimburse. For example, a loan of 65,500 euros was deemed not to be modest for a couple with an income of 3,607 euros per year. month. Under the community system, thearticle 1415 of the Civil Code protects joint property against loans and guarantees taken out by only one spouse without the express consent of the other.
Multiple bank accounts and security interests
A debtor may hold several accounts. If a unit of account agreement has been signed, the balances are merged into a single balance, which will form the basis for the seizure. In the absence of such an agreementIn principle, the accounts are independent, although the banker may invoke set-off. In addition, securities such as account pledges or cash pledges can be put in place by a bank. company bank, creating a preferential right for the creditor bank, the effectiveness of which is particularly scrutinised in the event of insolvency proceedings.
Seizable balance and unseizable funds
The seizure cannot cover all the sums in an account. The banker is obliged to leave a sum equivalent to the lump sum of the Revenu de Solidarité Active (RSA) available for the debtor: this is the mechanism of the unseizable bank balance (SBI). The law plans this protection in order to guarantee a minimum standard of living. In addition, certain claims, by their nature of maintenance or social benefits (allowances, assistance at accommodation, pension), are declared unseizable. If such sums are paid into the account, their unseizability is transferred to the account, provided that the debtor can justify the source of the sums in the deadline from dispute. Maintaining the SBI is a legal obligation for the bank.
The various procedures for seizing debts constitute a complex arsenal, but one that is essential to the legal certainty of transactions. Choosing the most appropriate procedure and managing the many possible incidents, such as a disputeThis requires a detailed analysis. For assistance with your cover and the implementation ofexecution, our expertise in enforcement is at your disposal.
Frequently asked questions
What is attachment for payment?
Attachment is a compulsory execution procedure that allows a creditor with a writ of execution, by means of a commissioner of justice (formerly bailiff), to seize sums of money owed by a third party (usually a bank) to its debtor. Its main advantage is the immediate attribution of the claim to the creditor, in accordance with to the law of 9 July 1991 and its decree application. Visit present mechanism is the most common.
What are the main procedures for seizing debts in France?
A answer There are five main types of seizure: attachment of receivables (common law), attachment of remuneration, attachment of assets and attachment of assets. administrative (SATD) for public debts, the payment of debts to a third party direct for maintenance payments and opposition à tiers détenteur for social security debts. Each has its own rules laid down by law or by decreeThe choice depends on the nature of the debt to be serviced. recover.
What is the unseizable bank balance (UBS)?
The unseizable bank balance (SBI) is a sum that the bank must leave in the account of the individual debtor after a seizure. The amount, set by decreeThis is a flat-rate payment equivalent to the Revenu de Solidarité Active (RSA) for a single person, to guarantee a minimum standard of living. This information is crucial for the debtor.
Can a joint account be seized?
Yes, a joint account can be seized, even if only one of the joint holders is the debtor. In principle, the seizure extends to the entire balance, but the non-debtor co-account holder can dispute the measure before the judge in a deadline a month à count the reception of theact of seizure, by proving that the funds seized belong to him alone.
What is the role of the Enforcement Judge (JEX)?
The Enforcement Judge (JEX) is the magistrate responsible for settling all difficulties and disputes arising from the execution of a debt. disputes that arise during enforcement proceedings. It rules on the validity of the seizure, the amounts that can be seized, applications for release, and will be able to impose standby duty. A court decision is enforceable.
Is the bank liable in the event of a fraudulent transfer?
The bank's liability, whether in the form of a company A bank, whether private or public, may be held liable in the event of a fraudulent transfer, particularly if it has not put in place the required security measures. However, liability is often waived if the bank can prove that the customer was "grossly negligent", for example by example by communicating its identifiers, which may lead to a damage financial penalty, or even a fine criminal if there is complicity.
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