Attachment is a debt collection procedure that is often perceived as a direct mechanism: a creditor, armed with a writ of execution, seizes the sums owed to his debtor by a third party. However, this apparent simplicity masks highly complex legal situations. What happens when the original creditor or debtor is no longer the same, following an assignment of a claim, a succession or a company merger? How do you act if your debtor, through negligence, fails to collect his own debts, thereby indirectly blocking yours? These scenarios, which are far from rare, require in-depth technical knowledge of enforcement law in order to secure everyone's rights and mount an effective challenge.
Understanding the mechanisms of oblique action and direct action
To recover a debt, a creditor has a number of legal tools at his disposal. Among these, oblique action and direct action make it possible to take action against the debtor of one's own debtor. Although their objectives are similar, their implementation and effects are radically different. This is an essential distinction to master before tackling seizure-attribution and the exercise of direct action.
The foundations of the action oblique: the role of the debtor's failure to act
The action oblique, provided for in article (art) 1341-1 of the Civil Code, is a legal remedy enabling a creditor to compensate for his debtor's inaction. If your debtor neglects to exercise his own property rights and actions (for example, claiming payment of an invoice from one of his customers), and this failure compromises your chances of recovery, you can exercise this oblique action in his place. The triggering event is therefore the proven negligence of the negligent debtor. However, the scope of this oblique action is limited: the funds recovered become part of the assets of the negligent debtor and are not directly attributed to the creditor who took action. They then become available to all of the debtor's creditors, without conferring any special privileges on the creditor who initiated the proceedings.
Direct action: an exceptional prerogative for the creditor
Unlike the oblique action, the direct action is an exceptional prerogative that must be expressly provided for by law. It enables a creditor to act in his own name and on his own behalf against his debtor's debtor. The most common example, arising from a subcontract, is that of a subcontractor (e.g. a construction company) who, in the event of default by the main contractor, can take direct action against the client to obtain payment for the work carried out. The advantage is considerable: payment is made directly to the creditor, without passing through the debtor's assets. This procedure confers a real privilege, as the sums recovered in this way are not subject to the competition of the intermediary debtor's other creditors.
The direct action in attachment for payment: a key jurisprudential subtlety
The traditional distinction between an action oblique (indirect) and an action directe (direct payment) has been qualified by case law, which has created a kind of procedural hybrid sometimes referred to as an action "oblique directe". Under very strict conditions, this allows a creditor bringing an action oblique against his debtor to obtain direct payment, thereby derogating from the principle of reinstatement of the funds in the debtor's assets.
The contribution of case law (Cass. 1re civ., 4 October 2017): conditions for direct payment
A key ruling by the First Civil Chamber of the Court of Cassation dated 4 October 2017 clarified the contours of this oblique action with direct effect. The high court has accepted that a creditor may, by the oblique route, obtain an order from the third party (his debtor's debtor) to pay him the funds directly. The aim is to avoid the double procedure of first reintegrating the funds into the assets of the negligent debtor, and then having to levy an attachment order on the latter. This ruling consolidates a pragmatic approach aimed at simplifying recovery for the diligent creditor, a significant change in the practical scope of the action oblique.
Procedural implications: the need to implicate the original debtor
The validity of such a direct action oblique is subject to an imperative procedural condition: the creditor must necessarily implicate his own debtor (the negligent creditor) in the proceedings he brings against the third party. This preparation of the proceedings is essential because the decision rendered will have the force of res judicata in the creditor's regard. It ensures that the parties are heard and that the intermediate debtor cannot later contest the payment made directly to his own creditor. Without such a challenge, the claim for direct payment would be deemed inadmissible, and the action could only produce the effects of a conventional action oblique.
Attachment and the question of successors in title: relativity and transmission
The principle of the relativity of proceedings is at the heart of the seizure-attribution procedure: an enforcement measure can only be taken by the seizing creditor and against the seized debtor named in the writ of execution. However, this principle is modified when the claim or debt is transferred to a "successor in title", i.e. a person who acquires the rights of its "originator". One of the major challenges for the successor in title is to be able to take advantage of the transmission of the enforcement order obtained by the original creditor.
The impact of assignment of claims and inheritance on the seizure procedure
The transfer of a claim (by assignment or subrogation) or of assets (by succession or merger of companies) entails the transfer of its accessories, including the writ of execution recording it. In this way, the heir of a creditor or the company absorbing another entity can directly use the judgment obtained by its author to levy an attachment order. However, the validity of the measure depends on the transfer being enforceable against the debtor. For an assignment of a claim, art. 1324 of the Civil Code requires service to be made by a court commissioner or the debtor to take formal notice. For an inheritance, art. 877 of the Civil Code requires service of the title on the debtor's heir and a waiting period of eight days before any seizure.
Nullity of seizure-award in relation to successors in title and joint and several debtors
A seizure made in disregard of these rules is null and void. For example, an attachment initiated by an assignee before the debtor has been notified of the assignment will be null and void. Similarly, a writ of execution obtained against a single person does not allow the assets of his co-debtors to be seized, even if they are jointly and severally liable. The Court of Cassation applies a strict view of the relativity of title: a judgment against a company does not allow a partner to be seized, and a title against a husband and wife is not valid against their spouse, even for a household debt. Attempting to extend a seizure to a co-debtor not covered by the writ of execution may, in certain circumstances, be tantamount to "seizures". abusive practicesThe enforcement judge (JEX) is responsible for disputing these claims.
Attachment of bank accounts: obligations of the garnishee and protection of the debtor
Attachment of a bank account is the most common form of this procedure. It highlights the crucial role of the garnishee - the bank - and the protection mechanisms afforded to the debtor. The bank is not a mere executor; it has precise legal obligations, non-compliance with which may render it liable.
The framework of the garnishee banker's reporting obligations and liability
When served with a writ of attachment by a court commissioner, the bank is required, under the terms of article L. 211-3 of the Code of Civil Enforcement Procedures, to declare immediately the extent of its obligations towards the debtor. It must indicate the nature of the accounts (current account, joint account, savings account) and the balance of each on the day of the seizure. A late, inaccurate or incomplete declaration constitutes a fault that may result in the debtor being ordered to pay the reasons for the seizure, or even damages. Jurisprudence is demanding and considers that a delayed response, even by a few hours, may constitute misconduct.
Management of current transactions and application of the non-attachable bank balance (SBI)
The balance declared by the bank is not final. It is adjusted during a period of fifteen working days following the entry to take account of "outstanding transactions": cheques issued but not yet debited, card payments, transfers, etc., dated prior to the entry. This adjustment is used to determine the final balance that will be allocated to the creditor. The law also protects the debtor by guaranteeing that a minimum sum remains available. The SBI (Solde Bancaire Insaisissable - Unseizable Bank Balance), which is equivalent to the lump-sum benefit for a single recipient (the revenu de solidarité active or RSA), must be automatically left in the account of the individual debtor, regardless of the amount of the debt. The purpose of this measure is to ensure the subsistence of the garnishee.
Impact of matrimonial property regimes and joint ownership on attachment for payment
The seizure of sums of money becomes more complex when the debtor is married, in a civil partnership or the owner of joint property. The matrimonial regime or the nature of the ownership of the funds has a direct impact on the extent of the seizable assets and the rights of the spouse or joint owners.
Seizure of joint property and joint accounts: specific rules and precautions
Under a joint property regime, a spouse's debts can in principle be recovered from the joint assets. However, article 1415 of the Civil Code protects the community by requiring the spouse's express consent to guarantees and loans. Without this consent, only the debtor spouse's own assets and income may be seized. In the case of a joint account, the bank owes the entire balance to each joint holder. The seizure may therefore relate to all of the funds. However, the debtor's spouse may prove that all or part of the sums come from his or her personal funds, in order to exempt them from seizure. Case law has even ruled, in a notable decision (Cass. 1re civ., 3 April 2001), that if the creditor cannot identify the debtor's own income in a joint account funded by both spouses, the attachment may be lifted in full.
Seizure of undivided shares: procedure and guarantees
Joint ownership is a situation in which several people jointly own the same property. The personal creditors of a joint owner cannot seize his or her share of the undivided property (article 815-17 of the Civil Code). Nor can they bring about the division in order to be paid out of the result. This rule protects the other undivided co-owners, whether they are heirs or co-owners of a property. Similarly, the syndicate of co-owners cannot directly seize the undivided share of a co-owner who owes expenses; it must wait for the division to take place. To recover their debts, creditors must wait for the division to take place, either amicably or by court order. They may, however, take security, such as a conservatory judicial mortgage, over the undivided share of their debtor to guarantee their rights at the time of the future partition.
Enforceability and res judicata: a fundamental distinction for seizures
To carry out an attachment order, the creditor must hold an enforceable title, i.e. a document (judgment, notarial deed) that establishes his claim and allows him to pursue its enforcement. It is essential to distinguish between the "enforceability" of a judgment and its "res judicata". The authority of res judicata (article 500 of the Code of Civil Procedure) is attached to a decision that is no longer subject to suspensive appeal (such as an appeal). Enforceability, on the other hand, is conferred by notification (service by a court commissioner) of this decision on the debtor (article 503 of the same code). An attachment made on the basis of a judgment, even one that has become res judicata but has not yet been served, is therefore null and void.
Provisional enforcement and its effects on attachment for payment and remedies
Since the reform of civil procedure, in particular by Decree no. 2019-1333 of 11 December 2019, first instance decisions are in principle enforceable de jure on a provisional basis (Article 514 of the Code of Civil Procedure). This means that the creditor can initiate an attachment for payment even if the debtor has appealed. This enforcement is carried out at the creditor's own risk: if the judgment is overturned on appeal, the creditor will have to return the sums collected and compensate for the damage caused. The appeal does not therefore prevent the seizure, but it does weaken its effects. If the debtor obtains a ruling from the First President of the Court of Appeal (for example, the Paris Court of Appeal) to halt provisional enforcement, the seizure is paralysed: the immediate attribution of the debt to the creditor is maintained, but payment by the garnishee is suspended until the decision of the Court of Appeal.
Preventive strategies: precautionary measures prior to seizure of assets
When a creditor does not yet have a writ of execution but fears for the recovery of his debt, he can resort to precautionary measures. These aim to "freeze" the debtor's assets by making them unavailable, pending a court decision on the merits of the case. They are a strategic tool for preventing the organisation of the debtor's insolvency.
Conditions and implementation of precautionary measures to secure a debt
To obtain a judge's authorisation to carry out a protective attachment, the creditor must meet two cumulative conditions (art. L. 511-1 of the Code of Civil Enforcement Procedures): a claim that "appears to be founded in principle" and "circumstances likely to threaten its recovery". The claim does not need to be certain, liquid and payable, as is the case for compulsory enforcement; a mere appearance is sufficient. The threat may arise from the debtor's precarious financial situation, bad faith or attempts to conceal his assets. Once authorised, protective attachment renders the assets or claims unavailable. The creditor must then, within one month, initiate proceedings on the merits to obtain a writ of execution. This will enable the creditor to convert the protective attachment into an attachment for payment and obtain payment. These complex cases pave the way for argumented contestation of irregularities (disputing the amount claimed, the time limits, the charges applied, etc.).
The complexity of seizure-award mechanisms, particularly in the presence of successors in title or in specific matrimonial contexts, requires expert analysis to secure your rights or challenge an irregular procedure. When faced with such a situation, our law firm specialising in debt collection can help you define the most appropriate strategic plan. For an initial opinion and clear information, do not hesitate to contact our firm.
Sources
- Code des procédures civiles d'exécution (in particular articles L. 111-1 et seq., L. 211-1 and R. 211-1)
- Civil Code (in particular articles 877, 1324, 1341-1 and 1415, in their current version)
- JurisClasseur Procédure civile, Fasc. 1600-10: SEIZURE-ATTRIBUTION. - Cause of seizure (last updated: 18 July 2024)
- Perrot, R., and Théry, P., Procédures civiles d'exécution, 3rd edn, Dalloz, 2013.
- Piédelièvre, S., "Contestation de la saisie-attribution et office du JEX", Revue pratique du recouvrement, October 2021, note under Cass. civ. 2e, 10 July 2021. (article in a review)
- Cayrol, N., "L'action oblique à l'épreuve de la saisie-attribution", RTD civ. 2018, p. 123.
- Legeais, D., Droit des sûretés et garanties, 12th edn, LGDJ, 2021 (thesis and works relating to the law of guarantees).
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