While the seizure and sale of movable property is a common enforcement procedure, a derogation applies when the debt is less than €535 and the goods are located in the debtor's home. This specific procedure, which is governed by the principle of subsidiarity, is designed to give priority to less intrusive measures before resorting to seizure of the debtor's personal property. Given the complexity of these rules, the assistance of a expert debt recovery lawyer is often essential to navigate between the creditor's obligations and the debtor's rights, with each party having a role to play.
Understanding the principle of subsidiarity for small claims (<535€)
Forced debt collection is never a trivial act, especially when it involves entering a person's home. The legislator has therefore introduced a protective legal mechanism for small debts, based on the principle of proportionality. The aim is clear: to avoid the potentially traumatic nature of seizing furniture for modest sums when less intrusive alternatives exist, at any time of day.
Definition and legal framework of the subsidiarity principle
The principle of subsidiarity with regard to seizure and sale derives from article L. 111-7 of the Code of Civil Enforcement Procedures (CPC exéc.). This text states that while the creditor has a choice of enforcement measures, these must not exceed what is necessary to obtain payment of his obligation. For small claims, this translates into a hierarchy of recovery methods. Before considering the seizure of movable assets at the debtor's home, the court commissioner must ensure that it is impossible to recover the sum by means deemed more lenient. This principle of proportionality means that priority must be given to measures that are less intrusive on the debtor's rights, such as seizure of assets bank account or attachment of earningsThis is an important formality before considering the seizure of movables.
Conditions for application of the €535 threshold and its limits
The derogatory system of attachment for sale is strictly governed by articles L. 221-2 and R. 221-2 of the Code of Civil Enforcement Procedures. For the principle of subsidiarity to apply, three cumulative conditions must be met:
- The debt to be recovered must be less than or equal to €535. Case law has specified that the amount of the outstanding balance must be taken into account at the time proceedings are commenced, and not the initial principal amount of the debt (Cass. 2e civ., 18 June 2009, no. 08-18.379). The question of the amount is therefore central.
- The claim must not be for maintenance. Because of their vital nature, maintenance payments and compensatory allowances benefit from a strengthened recovery system that rules out this subsidiarity.
- The seizure must take place on premises used as the debtor's home. This concept is interpreted restrictively and concerns the place where the debtor lives and sleeps, including a second home, but excluding garages or gardens attached to a building.
If one of these conditions is not met, the seizure and sale may be carried out in accordance with the ordinary law procedure. The threshold of €535 is decisive for the application of the principle of subsidiarity, but it does not constitute an absolute limit. intervention threshold The general rule applies to judicial representatives, whose action is conditional above all on the possession of a writ of execution evidencing a debt that is due and payable. Lastly, even if the conditions are met, the creditor may seek specific authorisation from the enforcement judge, via an order, to derogate from this principle.
The production order: a key mechanism
Where the principle of subsidiarity applies, the seizure for sale procedure is not abandoned, but its implementation is conditional. A special injunction has been added to the summons to pay, which is mandatory before any seizure and serves as formal notice. The purpose of this legal mechanism is to obtain from the debtor the information needed to implement alternative seizures of bank accounts or wages.
Content and form of a summons with an injunction
Under article R. 221-3 of the French Code of Civil Enforcement Procedures (CPC exéc.), the summons to pay served on the debtor must contain a clear injunction, failing which it is null and void. The debtor is ordered to inform the court commissioner, within eight days, of the name and address of his employer and the details of his bank accounts, or one of these two elements. The deed must also specify that if the debtor fails to pay, and if it is not possible to seize an account or wages, the debtor may be forced to pay by the compulsory sale of his movable property. If the debtor fails to comply with this injunction, the court commissioner will have extensive powers of investigation. This notification is an important step.
The bailiff's powers of investigation and assessment of the impossibility of recovery
Faced with the debtor's silence or refusal, the judicial commissioner is not powerless. The law gives him direct powers of investigation to verify the impossibility of recovering the pecuniary obligation by another means. Pursuant to articles L. 152-1 and L. 152-2 of the Code of Civil Enforcement Procedures, the court officer, who holds an enforcement order, may directly question government departments (tax services, social security organisations) and banking institutions to obtain this information, including any property assets. These bodies may not invoke professional secrecy. This right of direct access to information is fundamental, as it enables the judicial commissioner to objectively document the impossibility of an attachment for payment or seizure of wages. In practice, this "impossibility" is characterised in several situations: the debtor has no known bank account, the balance of his account is in debit or only shows amounts that cannot be seized, or he is unemployed or his income has already been fully seized by a priority creditor with a security interest.
Responsibility of the judicial commissioner and good practice
Application of the principle of subsidiarity is not simply an option left to the discretion of the commissioner of justice; it is a legal obligation. Failure to comply with it is a fault that may give rise to liability. liability of the commissioner of justiceboth civil and disciplinary.
General framework for the liability of the commissaire de justice
As the creditor's agent, the commissaire de justice is bound by a stricter duty of care. He is contractually liable to his principal if he commits a fault in the performance of his duties. On the other hand, they have extra-contractual liability towards the debtor and third parties. He must act with diligence, ensuring that the enforcement order is valid and scrupulously complying with the procedures laid down. Enforcement carried out on the basis of a suspended instrument or in breach of the procedural rules constitutes a fault giving rise to a right to compensation for the damage caused, a risk that is not negligible.
Consequences of non-compliance with the principle of subsidiarity
It is professional misconduct to seize your home for a debt of less than €535 without first attempting alternative seizures or without the judge's authorisation. Such a seizure is considered abusive and unlawful. The first consequence is that the seizure report is null and void, giving the debtor the right to request that it be released immediately. In addition, a debtor who has suffered an unlawful intrusion into his or her home may claim damages to compensate for the loss suffered. Case law has already awarded significant compensation in such situations, as in a ruling by the Aix-en-Provence Court of Appeal on 24 May 2007 (no. 05/20145), which was upheld in September of the same year for a seizure of just €500. The commissioner at fault may then be ordered to guarantee the creditor for the sums that the latter should pay to the debtor.
Seizure and sale of movable property for small claims vs. simplified recovery procedure: avoiding confusion
It is essential not to confuse this specific system of seizure-sale with the simplified procedure of small claims recoverywhich has a different logic and legal effect. Although the two mechanisms concern small debts, their nature and implementation are radically different. The simplified procedure, resulting from the reform introduced by the Macron Act and governed by article L. 125-1 of the French Code of Civil Enforcement Procedures (art. L. 125-1 CPC exéc.), is a non-judicial procedure that aims to achieve an amicable resolution. It enables a judicial officer to propose an out-of-court settlement for a contractual or statutory obligation of less than €5,000 (for example, an outstanding loan). If an agreement is reached, the bailiff issues a writ of execution without the need for prior judicial intervention. In contrast, seizure and sale of small claims is a compulsory enforcement measure, similar to seizure of property. It presupposes the prior existence of a judicial writ of execution. The procedure is coercive, and the principle of subsidiarity merely accommodates this constraint by imposing a hierarchy of measures, where each stage must be respected.
The seizure and sale regime for claims of less than €535 at the debtor's home illustrates the legislator's desire to strike a balance between the creditor's right to obtain payment and the protection of the debtor. If you are faced with such a situation, whether you are a creditor or a debtor, our law firm with expertise in enforcement procedures can help you analyse the legality of the procedure and assert your rights at every stage of the proceedings.
Sources
- Code des procédures civiles d'exécution (in particular articles L. 111-7, L. 152-1, L. 152-2, L. 221-2, R. 221-2, R. 221-3)
- Civil Code
- Case law relating to the liability of the commissaire de justice (in particular Cass. 2e civ., 18 June 2009, no. 08-18.379, Bull. civ. II, no. 161)
EN 
FR