Recovering property that has not been returned or delivered is often a legal headache. How do you regain possession of a vehicle not returned after a loan? How do you recover equipment that you own? The seizure and apprehension procedure (saisie-apprehension) represents the legal solution for recovering such property. Here is an explanation of this little-known legal mechanism under French law.

What is Seizure and Apprehension?

Seizure and apprehension (saisie-apprehension) is a forced execution procedure that enables a creditor to have movable property apprehended when the debtor is required to deliver or return it. Article L.222-1 of the Code of Civil Enforcement Proceedings (Code des procédures civiles d’exécution, CPCE) provides that « the enforcement officer (commissaire de justice) responsible for execution shall apprehend the movables that the debtor is required to deliver or return to the creditor by virtue of an enforceable title, unless the debtor offers to transport them at his own expense. »

Unlike an attachment for sale (saisie-vente), which aims to sell property to pay a monetary debt, seizure and apprehension has as its objective the physical delivery of the property itself. It also differs from a protective seizure for recovery (saisie-revendication), which is merely a conservatory measure rendering the property unavailable pending its delivery.

Conditions for Implementation

An Enforceable Title is Indispensable

To initiate a seizure and apprehension, the creditor must hold an enforceable title (titre exécutoire). According to Article R.222-1 of the CPCE, « a corporeal movable property may be apprehended from the hands of the person required to deliver it by virtue of an enforceable title or directly from the hands of a third party holding it on behalf of that person. »

  • A judgment that has become final
  • A court decision with provisional enforcement
  • A notarial deed bearing the enforcement formula (formule executoire)
  • An order for delivery or return that has become enforceable

Without an enforceable title, it is impossible to proceed with a seizure and apprehension. The creditor may however apply for an order for delivery or return (ordonnance d’injonction de delivrer ou de restituer) from the enforcement judge.

Property Concerned

Only corporeal movable property (biens meubles corporels) may be subject to a seizure and apprehension. The procedure covers:

  • Movable objects (furniture, household appliances, etc.)
  • Vehicles
  • Professional equipment
  • Goods and merchandise

Immovable property and incorporeal movables (such as company shares or receivables) are excluded from the scope of application.

Obligations Concerned

Seizure and apprehension concerns only obligations to deliver or to return property. These obligations may arise from:

  • A contract of sale (obligation to deliver)
  • A loan agreement (obligation to return)
  • A lease or finance lease agreement (return at end of contract)
  • A retention of title clause (return following rescission of the sale)

Procedure

From the Debtor’s Hands

Prior Formal Notice

In principle, seizure and apprehension begins with a formal notice to deliver or return (commandement de delivrer ou de restituer) served on the debtor. Article R.222-2 of the CPCE provides that this formal notice must contain, on pain of nullity:

  • Reference to the enforceable title
  • An indication that the debtor may transport the property at their own expense within 8 days
  • A warning that failing this, the property will be apprehended at the debtor’s expense
  • An indication of available remedies

This formal notice gives the debtor a last chance to comply voluntarily.

Procedure Without Prior Formal Notice

In certain situations, the enforcement officer may proceed with immediate apprehension, without prior formal notice. Article R.222-3 of the CPCE authorises this accelerated procedure when:

  • The debtor is present at the time of the enforcement attempt
  • The enforcement officer has asked whether the debtor offers to transport the property at their own expense
  • The debtor has refused this proposal

This expedited procedure prevents the debtor from making the property disappear after receiving the formal notice.

The Official Report and Delivery of Property

Whether there is voluntary delivery or forced apprehension, the enforcement officer draws up a detailed official report (proces-verbal). According to Article R.222-4 of the CPCE, « a record shall be drawn up of the voluntary delivery or apprehension of the property. This record shall contain a detailed description of the property. »

The enforcement officer may photograph the property. These photographs are annexed to the record. A copy of the official report is given to the debtor if present; otherwise it is served on them.

If the property is delivered to a pledgee creditor, additional formalities are provided for by Article R.222-6 of the CPCE.

From a Third Party’s Hands

Summons to the Third-Party Holder

Where the property is in the hands of a third party, the procedure differs. Article R.222-7 of the CPCE requires a summons served directly on the third-party holder and notified to the debtor.

This summons must contain, on pain of nullity:

  • A copy of the enforceable title
  • An injunction to deliver the property within 8 days
  • The possibility for the third party to communicate their grounds for opposition
  • An indication that any difficulties will be brought before the enforcement judge

Special Judicial Authorisation

If the third party refuses to deliver the property voluntarily, the creditor must apply to the enforcement judge (juge de l’exécution). Article R.222-8 of the CPCE specifies that « failing voluntary delivery within the prescribed time, the seizing creditor may request the enforcement judge of the place where the third-party holder resides to order delivery thereof. »

The judicial authority intervenes to protect the rights of the third party, who is not directly targeted by the enforceable title.

Enhanced protection exists where the property is located in the third party’s dwelling: in this case, Article L.222-1 of the CPCE requires special authorisation from the judge.

Protection of the Third-Party Holder

The third-party holder benefits from several safeguards:

  1. They may justify their refusal to deliver the property
  2. They may themselves apply to the enforcement judge
  3. They may invoke a right of their own over the property (right of retention, for example)

According to Article R.222-9 of the CPCE, apprehension from a third party is only possible upon presentation of the judge’s decision.

Special Cases

Property Held in a Safe Deposit Box

The seizure of property held in a safe deposit box is subject to a specific regime provided for in Articles R.224-1 to R.224-12 of the CPCE.

  1. Serve a seizure instrument on the institution where the safe is located
  2. Serve a formal notice on the debtor
  3. Proceed to open the safe in the presence of the debtor or, failing that, a representative of the institution
  4. Draw up an inventory of the seized property

This system protects both the interests of the creditor and banking secrecy.

Apprehension of a Motor Vehicle

For vehicles, Article R.222-16 of the CPCE authorises recourse to the immobilisation techniques provided for in attachment for sale:

  • Use of a wheel clamp (Denver boot)
  • Removal and impounding
  • Immobilisation by any means rendering the vehicle unusable

These measures prevent the disappearance of the vehicle before its definitive apprehension.

Delivery to a Pledgee Creditor

When property is apprehended for delivery to a pledgee creditor, the procedure becomes more complex. Article R.222-6 of the CPCE provides that:

  • The apprehension instrument constitutes a seizure under the custody of the creditor
  • The creditor may then proceed with the sale according to the rules for attachment for sale
  • An instrument containing various mandatory particulars is served on the debtor
  • The debtor has one month to arrange a private sale

Special rules apply since Decree No. 2021-1888 of 29 December 2021 where the creditor implements the simplified realisation procedure provided for by Article 2346 of the Civil Code.

The seizure and apprehension procedure, although technical, constitutes an effective tool for recovering property. Its implementation nevertheless requires strict compliance with formal requirements, on pain of nullity. It is also important to take into account potential obstacles and limitations to these procedures. To navigate these complexities, the assistance of a lawyer experienced in enforcement proceedings is often indispensable.

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