Attachment is a formidable tool for creditors with a writ of execution seeking to recover their debt. By making it possible to directly seize sums of money owed to the debtor by third parties, this procedure is extremely effective. However, there are legal subtleties to its implementation, and failure to understand them can frustrate the creditor's efforts, particularly in the case of debts payable in instalments. The distinction between a single claim payable in instalments and a series of successive claims is one of these subtleties. To the uninitiated, the difference may seem purely theoretical. In practice, it determines whether a single seizure procedure is sufficient or whether several are required, with major financial and strategic consequences. The seizing creditor must therefore exercise great caution. In view of the complexity of these case law distinctions and the financial implications of renewing seizures, it is essential that the seizing creditor be very careful, the assistance of a lawyer specialising in enforcement procedures is often essential to secure the recovery of such debts.
I. The fundamental distinction: successively enforceable claims vs. successive claims
In order to understand the scope of seizure of assets for payments spread over time, it is essential to understand the legal nature of the obligation that gives rise to the seizure. The law makes a crucial distinction between a single claim whose enforcement is simply staggered and a plurality of claims that arise one after the other. Before analysing the specific cases of dividends or royalties, it is essential to understand the general framework for debt seizures of sums of money to understand what is at stake in this differentiation.
A. Definition and classification criteria for receivables
A claim for successive performance is a single claim arising from a single legal event, the performance of which is simply spread over time. A typical example is a rent claim arising from a lease contract. The contract is the single act that gives rise to the debt for its entire duration. Even if the payment is made monthly, the claim exists in principle, in accordance with the provisions of the Code of Civil Enforcement Procedures (CPCE). A single attachment for payment is therefore sufficient to cover all future instalments as and when they fall due. Legally, this is considered to be a claim that is certain, even though it is subject to a time limit.
Successive claims, on the other hand, are multiple claims which, although they may arise from the same framework contract, arise from repeated legal events. Each event constitutes an autonomous "operative event" that gives rise to a new claim. Case law is clear: a claim becomes certain, and therefore attachable, only when the legal act or event that gives rise to it has occurred. This act forms the basis of the third party's obligation to pay. In the case of future benefits, the claim is considered to be purely contingent, a mere expectation. The creditor may only seize claims where the event giving rise to the claim has already occurred.
B. Procedural implications and challenges of renewing seizures
The classification of the claim has decisive procedural consequences. For a single debt with successive performance, a single writ of seizure and sale, served by a judicial commissioner (formerly a bailiff), will be effective for all future instalments until the debt of the seizing creditor is extinguished. This solution is economical and effective.
On the other hand, when claims are classified as successive, the creditor is obliged to multiply the procedures. Each new claim that arises requires a new attachment for payment. This obligation to renew generates significant practical constraints: additional costs linked to the fees charged by the court commissioner for each enforcement measure, repeated deadlines (each attachment must be notified to the debtor within eight days, failing which it will be null and void, opening up a new period for contesting it), and constant vigilance to ensure that a new claim is not missed. While this article focuses on successive claims, it is crucial to compare them with the general regime for successively enforceable claims to clearly measure the differences in procedural treatment.
II. Study of emblematic cases: social dividends, copyright royalties and third-party payment
Case law has ruled on this distinction in a number of areas, shedding valuable light on the qualification criteria. Three cases are particularly illustrative of the concept of successive claims, requiring the creditor to renew its seizures.
A. Company dividends: the requirement for a decision by a general meeting
The attachment of dividends is a frequent question in practice. Can a creditor seize, in a single operation, all future dividends that his debtor, a shareholder in a company, may receive? The Court of Cassation has consistently said no, and its rulings on the subject are clear. It has ruled that a shareholder's claim to dividends only acquires legal existence on the date of the decision of the general meeting (AGM) that establishes the existence of distributable profits and decides on their allocation. Prior to this decision, the right to dividends is merely an expectation, a purely contingent claim that cannot be seized.
The debt is generated by the decision of the AGM. Consequently, each General Meeting at which a distribution is approved creates a new claim, legally distinct from that of the previous financial year. A seizure carried out before the AGM decision has no effect on dividends distributed subsequently. The creditor must therefore renew his seizure-attribution measure each year, after each general meeting that decides on a distribution.
B. Copyright royalties: beyond framework contracts
The situation of royalties paid by collective management organisations, such as SACEM, to authors or composers raises similar difficulties. Although an author is bound to the organisation by a single contract for the contribution of his or her rights, the case law considers that the royalties do not constitute a single claim for successive performance. In fact, the sums paid have "as many origins as publishers" and come from multiple and independent uses of the works (broadcasts, concerts, etc.).
Each use generates a royalty receivable. The contract with the management organisation is only a general framework; it does not in itself create a single claim for all future royalties. An attachment by a creditor of the author will therefore only relate to royalties already due on the date of the attachment. New seizures will have to be carried out to collect future sums. The classification of royalties is part of the broader and more complex framework of copyright seizurewhich differentiates between moral rights that cannot be seized and economic rights that can be seized.
C. Receivables under third-party payment agreements: the specific nature of medical procedures
A particularly enlightening case is that of sums owed by social security bodies (the garnishee) to healthcare professionals (doctors, ambulance drivers) under a third-party payment agreement. The Court of Cassation has ruled very clearly that the healthcare professional does not have a single claim for successive performance, but "separate claims arising from medical acts that are independent of each other" (Cass. 2e civ., 13 June 2002, no. 00-20.844).
The third-party payment agreement is simply a framework agreement setting out the terms and conditions of payment. The event giving rise to the debt is each medical procedure or medical transport carried out on behalf of an insured person. Consequently, a seizure at the hands of the CPAM can only relate to sums due for services already carried out on the date of the seizure. For future services, the creditor will have to repeat the procedure, which makes recovery particularly difficult in this sector.
III - Impact of insolvency proceedings on future claims for successive or separate performance
The opening of safeguard, reorganisation or liquidation proceedings against the seized debtor adds a further layer of complexity. The principle of the individual stay of proceedings and the prohibition on paying claims arising prior to the opening of proceedings disrupt the seizability of future claims.
A. The concept of 'claim arising on the date of the opening judgment' in case law
What happens to claims depends on when they arose. A seizure made prior to the opening of the insolvency proceedings can only have an effect on claims that were themselves created prior to that date. In the case of contracts with successive performance, case law generally considers that the claim arises as the service is performed. For example, in the case of a lease, the rent claim arises at each due date. Rents falling due after the opening of the insolvency proceedings are therefore subsequent claims, which in principle cannot be subject to an earlier attachment.
This analysis, applied to successive claims, confirms that it is impossible for a single seizure to capture them. As each claim (dividend, royalty, fee) arises from its own legal event, those for which the legal event occurs after the opening judgment are new claims, subject to the collective proceedings regime.
B. Exceptions to the Dailly Act and framework contracts in insolvency proceedings
There is one notable exception to this principle: the assignment of trade receivables by bordereau Dailly. When a company assigns to its bank, by way of security, future receivables arising from a framework agreement entered into prior to the opening judgment, this assignment remains effective for receivables arising after the judgment. Article L. 622-21 IV of the French Commercial Code, as amended by the Order of 15 September 2021, provides that the prohibition on increasing the basis of security after the opening judgment does not apply to a Dailly assignment made in execution of a prior framework agreement.
This provision offers considerable protection to bank creditors, enabling them to continue to benefit from claims arising from the continuation of the debtor's business. The exception provided for the cession Dailly cannot be understood without mastering the specific features of the bordereau DaillyThis makes it a particularly effective tool for guaranteeing and making receivables available.
IV. The immediate attributive effect of attachment for payment: justification of the classification of claims
The need to renew attachments for successive claims arises not only from the nature of these claims, but also from the very nature of the attachment by way of payment. Understanding the fundamental nature of attachment by way of payment and the genesis of immediate attribution is fundamental to understanding why case law requires multiple seizures for claims that have not yet arisen.
A. The principle of immediate attribution and the prohibition of attachment against oneself
Since the 1991 reform of enforcement procedures, the seizure-attribution has had an immediate attributive effect, as set out in article L. 211-2 of the CPCE. This means that as soon as the seizure deed is served on the third party, the seized debt leaves the debtor's assets and enters those of the seizing creditor. The creditor becomes the owner of the claim. This radical effect explains why a single attachment cannot relate to claims that do not yet exist. Ownership of an asset that does not legally exist cannot be transferred.
This principle is reinforced by the fact that a seizure cannot be carried out in the creditor's own hands. Once the first claim has been assigned to the creditor, he becomes the holder of that claim. Seizing future claims would be tantamount to seizing a claim that he holds against the third party, which is a legal impossibility. Each new claim that arises in favour of the original debtor therefore requires a new act of attachment to transfer ownership.
B. Impact on the seizability of future and contingent claims
This logic of immediate seizure explains the distinction made in case law between future claims and contingent claims. A future claim, even one subject to a term or condition, may be seized if it already exists "in principle" or "in germ" in the debtor's assets (for example, accrued rent). Attachment can validly transfer this claim.
On the other hand, a purely contingent claim, whose generating event has not yet occurred (such as a dividend that has not yet been voted), has no existence, even latent, in the debtor's assets. It cannot therefore be assigned immediately. It cannot be seized under an attachment order, which means that a new enforcement procedure must be initiated only when the debt has arisen.
V. Practical recommendations for creditors: anticipating and securing seizures
For creditors, navigating these distinctions is a perilous exercise. A misclassification can lead to the belief that a debt has been fully seized when in fact only the first instalment has been, leaving the field open to other creditors or to the opening of collective proceedings. An effective collection strategy must therefore be based on anticipation and rigour.
Before initiating a seizure, it is essential to carry out a precise legal analysis of the nature and purpose of the debt. In the case of claims arising successively, the creditor must plan a budget and a timetable for multiple seizures. They should set up a monitoring system to keep abreast of each new claim (for example, monitor the dates of general meetings of the company in which the debtor is a shareholder). This proactive approach is the only guarantee of secure debt recovery. For creditors, anticipating disputes is a key to success. the practical questions debtors haveThis information, such as the possibility of a seizure without notice or the question of the unseizable bank balance (SBI), makes it easier to prepare for the seizure procedure and to anticipate any challenges to the seizure.
The distinction between successive and successive claims illustrates the complexity of enforcement law. A superficial reading of contractual relations can be misleading and seriously compromise the chances of recovery. Only an expert analysis can secure the creditor's rights. If you are faced with such a situation, our firm can help you define and implement the most appropriate recovery strategy.
Sources
- Code of civil enforcement procedures
- Commercial code
- Civil Code
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