Enforcement law is home to a number of ancient procedures, the mere mention of which testifies to a high level of expertise. Seizure of standing crops is one such procedure. This enforcement measure, which has now largely fallen into disuse, enables a creditor to seize a debtor's agricultural produce even before it has been harvested. Its mechanism, based on a unique legal fiction, and the reasons why it was abandoned in favour of more modern techniques, reveal the complexity and pragmatism of French law. Although this procedure is rare, it illustrates the complexity of enforcement law, an area that lies at the heart of our legal system. expertise in civil enforcement procedures. This article from our law firm looks at this technical procedure in detail, from the conditions under which it is implemented to the way it is carried out, including an analysis of the reasons why it has become a legal curiosity.
I. Definition and the obsolete nature of the seizure of standing crops
Seizure of standing crops is a procedure that allows a creditor to seize the debtor's agricultural produce while it is still attached to the land. It is a variant of seizure for sale, but adapted to the particular nature of the goods seized.
A. A procedure for movable execution on "immovable property by anticipation
The main paradox of this procedure lies in its purpose. Legally, crops that are still hanging by their roots are considered to be immovable property by nature, in the same way as the land on which they are grown, as stipulated in article 520 of the Civil Code. In theory, therefore, a seizure should follow the cumbersome and complex procedures for seizing immovable property. However, for obvious practical reasons, the law uses a legal fiction: that of "anticipatory movables". As crops are destined to be cut and therefore to become movable property, the law considers them as such even before they are separated from the soil. This is a specific seizure of movable property which can be implemented in this way. This pragmatic approach has its origins in the old "saisie-brandon", a customary procedure that made it possible to seize fruit from the land before it was ripe.
B. Reasons for its obsolescence and preferred alternatives
Despite its legal ingenuity, the seizure of standing crops is rarely practised today. There are several reasons for this. The procedure is cumbersome, unpredictable due to the climatic risks affecting the harvest, and complex to implement given the perishable nature of the goods. Creditors largely prefer simpler, faster and more secure enforcement methods. The most common alternative is seizure of the sale price of the harvest. It is much easier for a creditor to identify the purchaser of the agricultural produce, often a cooperative, and to seize the sums owed to the debtor directly from them. Another option is the seizure under ordinary law, which allows goods to be placed in the hands of the courts as a preventive measure, a solution deemed particularly appropriate in view of the perishable nature of fruit by the Court of Cassation since 1979.
II. Substantive and formal conditions for crop seizure
Although subject to its own rules, particularly with regard to the ripening period, the seizure of standing crops is part of the general framework of the law on movable securities and shares common conditions with seizure for sale. These conditions, whether general or specific, strictly govern its implementation.
A. General conditions common to seizure and sale
Before such an attachment can be considered, three fundamental conditions must be met. Firstly, the creditor must hold an enforceable title, i.e. a document, usually a court decision, that officially establishes his right. Secondly, the claim must be liquid and payable, i.e. quantified or quantifiable, and the payment term must be overdue. Finally, the procedure must be preceded by the service on the debtor of a summons to pay. This document, issued by a court commissioner (formerly a bailiff), constitutes a formal notice to pay and gives the debtor a final period of eight days to pay the debt before the seizure can actually be carried out.
B. Specific conditions relating to the nature of the harvest and the ripening period
The very nature of the assets seized imposes additional conditions. The seizure may only relate to a crop belonging to the debtor, who is not necessarily the owner of the land; it may be a farmer or a usufructuary. The seizure may only relate to "natural or industrial" fruit (article 583 of the Civil Code), i.e. produce grown on the land, with or without human intervention, and which is intended to be harvested periodically. However, certain goods are excluded. This is the case for foodstuffs necessary for the subsistence of the seized person and his family, as well as straw and fertiliser considered to be "immovables by destination" because they are essential to the operation of the land (art. 524 of the Civil Code). But the most unusual condition is temporal: article R. 221-57 of the Code of Civil Enforcement Procedures, in its current version, stipulates that the seizure must be carried out within the six weeks preceding the usual ripening period. A seizure carried out too early would be null and void, because the value of the harvest would be too uncertain, whereas a seizure carried out too late, after the harvest, would fall under the classic seizure for sale procedure.
C. Special cases: joint ownership, EIRL and agricultural warrants
The situation becomes more complex in certain legal contexts. In the case of joint ownership, for example of a family farm, a personal creditor of one of the co-owners cannot seize the crops. Only a creditor of the joint ownership itself (whose claim relates to the management of the joint property) may do so, in accordance with article 815-17 of the Civil Code. For a sole trader (entreprise individuelle) with limited liability (EIRL) who has opted for this special status, seizure is also subject to restrictions. In principle, the company's professional creditors can only take action against the assets allocated to the business. If the crops are part of these assets, they can be seized; if they remain in the personal assets, they are protected from professional creditors. Finally, the situation becomes more complicated when a agricultural warrant has previously been granted on the same crops, raising issues of concurrence between the rights of the seizing creditor and those of the warrant holder. This particular procedural feature complicates the recovery plan. The enforcement judge is then the competent judicial authority to settle these incidents.
III. Seizure procedure: from official report to forced sale
Once the conditions have been met, the seizure is initiated by a court commissioner who visits the premises where the crops are located. The procedure takes place in several stages, from the drafting of the seizure deed to the actual sale of the goods.
A. The seizure report and appointment of the custodian
The central document in the procedure is the seizure report. In addition to the usual information, this document must contain a precise description of the land on which the crop is located, with its size, cadastral references by plot number and an indication of the nature of the fruit seized (article R. 221-58 of the CPCE). Once the report has been drawn up, the crops become unavailable. The debtor is then designated as the custodian of the seized assets. This is not a passive role, but a dynamic one. The debtor must continue to provide the crops with the care they need to reach maturity. Any breach of this duty of care gives rise to civil liability, which is assessed in accordance with the rules of the contract of deposit (article 1927 of the Civil Code). More seriously, the misappropriation or destruction of seized crops constitutes a criminal offence, punishable under article 314-6 of the Criminal Code. If the creditor has doubts about the debtor's probity or diligence, he can apply to the enforcement judge to appoint a farm manager, an agricultural technician who, with the debtor's agreement, will look after and manage the crops until they are sold.
B. Sale of crops: amicable or forced
After the seizure, the debtor has a period of one month from the date of the seizure in which to attempt to sell the crops out of court. If a buyer is found at a suitable price, the proceeds of the sale are deposited with the court commissioner to pay off the creditor. This option often comes up against a practical difficulty: the one-month deadline (plus the time needed to notify the creditor) may be incompatible with the product maturity schedule, making an out-of-court sale risky or impossible. If no amicable sale is possible within the time limit, a forced sale is carried out by public auction. This sale is legally advertised by posters posted in the town hall and at the nearest market, indicating the day, time and location of the harvest. The auction is conducted by the court commissioner, either on the premises itself if the fruit is still standing, or at a nearby market if the harvest has already taken place.
IV. Procedural incidents and the role of the enforcement judge (JEX)
Like any enforcement procedure, the seizure of standing crops can give rise to disputes or incidents. The enforcement judge (JEX) is the linchpin in resolving these disputes, guaranteeing that the procedure is carried out properly and that the rights of each party are respected.
A. The jurisdiction of the JEX with regard to disputes and litigation
The jurisdiction of the enforcement judge (JEX) is exclusively responsible for resolving any difficulties relating to the seizure, whether they concern the validity of the deed, ownership of the crops or the conduct of the sale. A third party may, for example, claim ownership of the seized property by producing a rural lease. The seized debtor may contest the seizure on the grounds that it was carried out outside the legal deadline of six weeks before maturity. The JEX examines these challenges, which may take the form of a formal opposition, and may order the seizure to be lifted if it is deemed irregular, on the basis of the law and judicial case law on seizures. He is also competent to manage conflicts between the seizing creditor and the holder of an agricultural warrant, for example by organising the joinder of proceedings to ensure that the rights of both parties are respected when the sale price is distributed.
B. Specific remedies and the relativity of the place of sale
Given the perishable nature of the goods seized, the JEX has extensive powers to adapt the procedure. Every formality must be complied with. If a serious dispute is raised, but harvest maturity is imminent, the judge may authorise the sale and order the deposit of the price. This pragmatic measure makes it possible to preserve the value of the property while awaiting a decision on the merits of the dispute. The JEX also supervises the practical arrangements for the sale. The place of the sale is not fixed. If the sale takes place while the crops are still standing, it will take place on site. If, on the other hand, the crop has matured and has been detached from the ground between the seizure and the sale, it is harvested by the custodian (the debtor or the designated manager) and the sale can then take place at the nearest market, in accordance with article R. 221-61 of the CPCE.
V. The obsolescence of the seizure of standing crops: causes and prospects
The marginalisation of this civil procedure is not the result of chance but the logical consequence of its constraints and the emergence of solutions more suited to contemporary economic and legal realities.
A. The practical and legal limitations that led to its decline
There are many obstacles to applying the law on the seizure of standing crops. The strict timetable, based on a "usual ripening period" that is sometimes difficult to determine, exposes the procedure to the risk of nullity on expiry of the legal deadline. The perishable nature of the goods seized does not sit well with the incompressible deadlines of the procedure, in particular the one-month deadline given to the debtor for an amicable sale, which can cause the products to wither. In addition, the complexity is increased by the presence of competing securities, such as agricultural warrants. Faced with these constraints, creditors now prefer more direct and effective measures, such as the attachment of the sale price of crops paid for by an agricultural cooperative, thus circumventing the constraints of seizure on the ground.
B. Residual interest in niche expertise and litigation strategy
Although outdated, mastery of the seizure of standing crops demonstrates the technical depth required in this area. If you have any questions about enforcement proceedings, our law firm will be happy to advise you. expertise in civil enforcement procedures.
Sources
- Code des procédures civiles d'exécution: articles R. 221-57 to R. 221-61 (as amended by Decree no. 2012-783 of 30 May 2012)
- Civil Code: articles 520, 524, 583, 815-17, 1927 (consolidated version as at 1 July 2021)
- Commercial Code: articles L. 526-6 et seq (relating to the status of the EIRL, version amended by the law of 14 February 2022)
- Penal Code: article 314-6 (relating to misappropriation of seized objects, current version)
- Law no. 91-650 of 9 July 1991 reforming civil enforcement procedures
- Case law: Cass. 2e civ. 10 Jan. 1979, no. 77-12.083, published in Bulletin civil II, no. 14
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