Faced with an unpaid debt, a creditor in possession of a writ of execution recording a debt that is certain, liquid and due has the right to resort to forced execution in kind to recover the sums owed to him. However, this right is not absolute. Civil enforcement procedures, which allow a debtor's assets or income to be seized, are strictly regulated by law to prevent abuses. Protection of the debtor is based on precise legal mechanisms, foremost among which are the sanction for abuse of seizure and compliance with the principle of proportionality. Understanding these concepts is the first step in asserting your rights, often with the help of a lawyer. lawyer specialised in enforcement.
I. The legal framework of abuse of seizure and proportionality
The right to enforce a court order is a fundamental principle, but it cannot authorise a creditor to act without restraint. Safeguards exist to penalise excessive practices and ensure that the debtor's dignity and means of subsistence are preserved. The enforcement judge (JEX) is the main guarantor of this delicate balance.
A. Definition and grounds for abuse of seizure
Abuse of seizure is a specific application of the theory of abuse of rights. There is no right that can be exercised with the sole aim of harming others or in a reckless manner. In the context of seizures, abuse is characterised when the creditor implements an enforcement measure maliciously or with blameworthy carelessness. The case law of the Cour de cassation has identified a number of situations that may constitute such abuse: taking legal action for a claim that has already been paid, maintaining a seizure after the debt has been settled, or needlessly multiplying proceedings against different assets when a single asset would be sufficient to cover the claim. The concept of abuse of rights finds concrete application in civil enforcement proceedings, particularly in the context of a wrongful levy of execution where the creditor exceeds his rights. Penalties for such behaviour can range from the creditor being released from the measure to being ordered to pay damages to the debtor for the loss suffered.
B. The principle of proportionality of enforcement measures
The principle of proportionality, which is closely linked to the sanctioning of abuse, is a cornerstone of civil enforcement procedures, affirmed by article L. 111-7 of the Code of Civil Enforcement Procedures. This article states that the creditor has a choice of measures, but that the enforcement of these measures "may not exceed what is necessary to obtain payment of the obligation". In other words, any enforcement measure must be both appropriate to its objective - the recovery of the debt - and measured in its consequences for the debtor. For example, seizing property of considerable value to recover a modest debt could be deemed disproportionate if other, less restrictive methods, such as seizing the debtor's bank account or wages, are possible and sufficient. Proportionality is assessed on a case-by-case basis, taking into account the good or bad faith of the parties.
C. Role and powers of the enforcement judge (JEX) in dealing with abuse and excesses
The Enforcement Judge is the central figure in seizure litigation. Article L. 121-2 of the Code of Civil Enforcement Procedures explicitly gives him the power "to order the release of any unnecessary or abusive measure and to order the creditor to pay damages in the event of abuse of attachment". This means that debtors who believe they have been the victims of an excessive measure must bring their dispute before the court. This specialised court will examine the debtor's request for the seizure to be lifted. The court has broad jurisdiction: it can annul an irregular act of seizure, order its cancellation (release) and compensate the damage caused by the creditor's fault. He is the guarantor of the balance between the creditor's right to obtain payment and the necessary protection of the debtor. When faced with a measure deemed to be abusive, the debtor must turn to the guarantor of the procedure; it is therefore essential to fully understand the powers and duties of the guarantor. powers of the Enforcement Judge as a basis for its challenge.
It is crucial to distinguish this civil procedure from criminal law. In criminal law, the purpose of seizure and confiscation (under article 131-21 of the Criminal Code) is not to recover a debt, but to deprive ownership of the object or direct or indirect proceeds of an offence. The Criminal Division of the Court of Cassation ensures that these rules are applied, which may result in the definitive confiscation of property for no consideration, a sanction that has nothing in common with civil enforcement procedures. The object or proceeds of an offence may be confiscated even in the hands of a third party, unless the third party is acting in good faith. This confiscation penalty is a principal or supplementary penalty resulting from a criminal judgment, whereas civil seizure merely enforces a pre-existing obligation.
II. Protection of debtors against abusive seizures and disproportionate measures
In addition to punishing abuses and ensuring proportionality, the law provides concrete protection for debtors through a number of measures, ranging from the protection of certain essential assets to specific procedures for people in serious economic difficulty.
A. Unseizable assets and income: a fundamental guarantee
To guarantee the survival and dignity of the debtor and his family, the law has drawn up a list of assets and income that may not be seized. This protection of the ownership of assets essential to life is a fundamental principle of common law, which contrasts with the logic of confiscation in criminal cases, where the asset is removed as punishment for an offence. Protected income includes
- Provisions, sums and pensions of a maintenance nature, such as alimony or compensatory allowance.
- A proportion of earned income, calculated according to a scale that takes into account salary level and dependants.
- Most social and family benefits (RSA, family allowance, disabled adults' allowance, etc.).
In addition, a specific mechanism protects bank accounts: the unattachable bank balance (SBI). Regardless of whether an account is seized, a sum equivalent to the lump sum of the RSA for a single person must be left at the debtor's disposal. With regard to material assets, article L. 112-2 of the Code of Civil Enforcement Procedures lists the movable assets deemed "necessary for the life and work of the garnishee and his family" that cannot be seized. This includes clothing, bedding, essential household items, heating appliances and work tools essential to the personal exercise of the professional activity.
B. Recent reforms and questionable types of seizure
Enforcement law is constantly evolving. One major reform, which will come into force on 1 July 2025 at the latest, concerns the seizure of wages. This procedure, which until now has been managed by court clerks, is being "diverted" and entrusted to judicial representatives (the successor profession to that of bailiff). This change, introduced by Act no. 2023-1059 of 20 November 2023 and validated in principle by the Constitutional Council, is designed to simplify and modernise procedures, in particular by creating a digital register of seizures. While the procedure will change, the debtor's rights will not. The seizure can still be contested at any time before the enforcement judge. The recent diversion of attachment of earnings from the courts is a perfect illustration of this. greater role for judicial commissionersThese are becoming the main contacts for implementing and contesting certain measures. All seizures (movable, immovable, bank accounts) can potentially be challenged for abuse or disproportionality, but some are more frequently the subject of debate, such as the seizure for sale of high-value movable property or the seizure of immovable property when the value of the property seized is out of all proportion to the debt to be recovered.
C. Over-indebtedness and good faith: protection mechanisms
When an individual's financial situation has deteriorated to such an extent that they are "manifestly unable to meet all their non-business debts that are due and payable", they can benefit from the procedures for dealing with over-indebtedness, a form of collective procedure adapted to private individuals. This system, managed by departmental commissions under the supervision of the courts, is the ultimate form of protection. The opening of over-indebtedness proceedings results in the suspension and prohibition of all enforcement procedures. The essential condition is that the debtor is acting in good faith. Bad faith, which leads to the inadmissibility of the case, is assessed by the commission and the judge. Bad faith may be characterised by misrepresentation, the organisation of insolvency or the accumulation of debts in the knowledge that it is impossible to repay them, actions that can sometimes border on criminal offences such as fraudulent organisation of insolvency. For debtors in good faith whose situation is irretrievably compromised, the over-indebtedness procedures are the last line of defence against seizure, and can even lead to the total or partial cancellation of debts as part of a personal recovery plan.
III. Strategies and remedies for challenging an abusive seizure
Challenging an enforcement order is not something to be taken lightly. It requires strict deadlines to be met and sound legal arguments to be presented before the competent court.
A. Challenging proceedings before the JEX: procedure and time limits
An enforcement order is contested by means of a summons to appear before the Enforcement Judge. This is a document drawn up and delivered by a bailiff, who summons the creditor to a hearing. The time limit for taking action is generally short: for example, in the case of bank account seizures, the dispute must be lodged within one month of the debtor being notified of the seizure. Failure to comply with this time limit means that the challenge is inadmissible, and the attachment becomes final. It is therefore essential to act quickly. Proceedings before the JEX are oral, but the filing of written submissions detailing the arguments and supporting documents is strongly recommended. A lawyer plays a vital role in preparing the case, drafting the necessary documents, representing the debtor at the hearing and, if necessary, appealing against the decision.
B. Proof of abuse or disproportion: key elements
To obtain the release of a seizure, the debtor must prove that it is abusive or disproportionate. Several factors can be put forward before the judge. It may be necessary to demonstrate the uselessness of the measure (debt already paid), the creditor's intention to cause harm, which is similar to a civil fault distinct from a criminal offence, or non-compliance with the principle of proportionality. One of the essential criteria for proving disproportionality is a clear difference between the amount of the claim and the amount of the debt. value of the property seizedThis is a particularly powerful argument in the context of a property seizure. Another relevant argument concerns the impact of the seizure on the debtor's personal or professional life. For example, the seizure and sale of a mixed-use vehicle, which is essential for both business and family travel, may be deemed disproportionate. The judge will then carry out a concrete analysis, weighing up the need for the property for the debtor's subsistence against the creditor's rights, and will check whether a less damaging course of action could not have been envisaged.
C. The impact of reforms and developments in case law
Enforcement law is a technical and lively subject, regularly amended by the legislator and clarified by the case law of the high courts. Recent reforms, such as that of the attachment of wages, are changing the parties involved and the procedures for contesting claims. Case law, for its part, is constantly refining the criteria for assessing abuse of rights or proportionality. Keeping abreast of these developments is essential if you are to build an effective case. A lawyer whose practice is dedicated to these issues will be able to draw on the most recent legislation and relevant court rulings to defend the debtor's interests as effectively as possible. For an overview of the mechanisms and latest reforms, our complete guide to civil enforcement procedures sets out the framework for these challenges.
You have the right to challenge an abusive or disproportionate seizure. If you are faced with such a situation, the assistance of our law firm, which has expertise in enforcement procedures, is crucial in analysing your case, advising you on the strategy to adopt and bringing your case before the Enforcement Judge within the allotted time. For an in-depth analysis of your situation and tailored advice, get in touch with our team.
Sources
- Code of civil enforcement procedures (in particular articles L. 111-7, L. 112-2, L. 121-2)
- Consumer Code (particularly on over-indebtedness of individuals)
- French Labour Code (particularly with regard to the portion of remuneration that cannot be seized)
- Civil Code (particularly on abuse of rights)
- Criminal Code (in particular the offence of fraudulent organisation of insolvency and the penalty of confiscation)
EN 
FR