The thought of a judicial commissioner, formerly a bailiff, knocking on your door to carry out a seizure is a source of anxiety. This fear is all the greater for someone in a precarious financial situation, or even someone who is insolvent. But what really happens when the debtor is considered not to be solvent? Can a court commissioner legally seize the assets of a person without sufficient resources? The answer is nuanced. While the procedure is still possible, it is strictly regulated by law to protect the debtor's dignity, guarantee respect for his rights and ensure that he has a minimum standard of living. This article sets out the applicable rules, your rights and possible remedies.
Role and powers of the judicial commissioner (ex bailiff)
Since the merger of the professions of bailiff and auctioneer, the judicial commissioner has been the public officer responsible for enforcing legal decisions. His involvement in debt collection procedures is often the final stage in a process that begins with attempts to reach an amicable settlement. They never act on their own initiative, but always within a specific legal framework, mandated by a creditor seeking to recover sums owed to them. His role, which is part of a public service remit, is therefore to apply the law and implement enforcement measures, such as seizures, to guarantee the creditor's rights.
The essential condition for any seizure: the writ of execution
There is one non-negotiable condition that must be met before the court commissioner can intervene in a seizure: possession of a writ of execution. This is a legal document that officially establishes a claim that is certain, liquid (the amount of which is determined) and due. Without this document, no action can be taken, and a bailiff will not be able to seize without a judgement or equivalent instrument. The main enforceable titles are :
- Court decisions that have become final (judgments, orders, rulings).
- Notarised deeds bearing the executory formula (for example, a mortgage deed).
- An enforceable order for payment.
- Securities issued by the tax authorities or other public bodies (avis à tiers détenteur).
- Conciliation reports signed by the judge and the parties.
It is therefore essential to understand that a court-appointed official cannot proceed with a seizure simply on the basis of an unpaid invoice or a reminder letter, even one sent by recorded delivery with acknowledgement of receipt. A formal notice or the intervention of a debt collection agency is not enough. A court decision or an act having the same force is essential to obtain authorisation to seize.
The different forms of data entry and their specific features
Depending on the nature of the debtor's assets, the judicial representative may resort to different types of seizure, with each procedure having its own specific framework and aspects. For a comprehensive overview, it is useful to understand the legal framework and specific features of each seizure procedure.
- Seizure for sale (seizure of movable property) : Often initiated by a summons to pay, it concerns the debtor's movable assets (car, furniture, IT equipment), which are inventoried and then sold at auction to repay the creditor.
- Attachment of bank accounts: The garnishee directly withdraws the money available from the debtor's bank accounts. This is a very effective procedure, but it is strictly regulated to protect a minimum standard of living.
- Attachment of earnings (attachment of wages) : Part of the salary, retirement pension or unemployment benefit is deducted directly at source by the employer or paying agency, according to a statutory scale.
- Property seizure: This is the most cumbersome procedure, aimed at seizing a property (house, flat) belonging to the debtor-owner in order to sell it and pay off the debt.
What assets and income are exempt from seizure to protect the debtor?
The law protects the debtor's dignity by making certain assets and income considered essential to his or her life and that of his or her family exempt from seizure. Even if a person is not solvent, he or she retains the right to keep these items safe from prosecution by the creditor.
The non-attachable bank balance (SBI): a protected minimum subsistence figure
When a bank account is seized, the bank is obliged to leave a minimum amount available for the debtor, known as the "Solde Bancaire Insaisissable" (SBI). The amount of this SBI is equivalent to that of the Revenu de Solidarité Active (RSA) for a single person, i.e. €635.71 (amount as at 1 April 2024). This sum is automatically left in the account to enable the debtor to meet his essential food and living expenses, regardless of the origin of the funds in the account.
The legal list of furniture essential to everyday life
The legislator has drawn up a precise list of movable assets that may not be seized, as they are deemed necessary for the daily life of the debtor and his family. This list, which stems from civil procedure, is defined in article R. 112-2 of the Code of Civil Enforcement Procedures and includes in particular :
- Clothing and bedding.
- Table and chairs for meals.
- Household items for preserving and preparing food.
- Heating appliances.
- The work tools necessary for the personal exercise of the professional activity.
For a full analysis, see our guide to detailed list of unseizable assets and the protection afforded to the debtor.
Income and social benefits
By their very nature, certain social benefits are totally or partially exempt from seizure. Their purpose is to provide a safety net for the most vulnerable. Protected incomes include :
- Active Solidarity Income (RSA).
- Family benefits.
- Allocation aux Adultes Handicapés (AAH) (Disabled Adults' Allowance), except for payment of the disabled person's maintenance costs.
- Housing benefits (APL, ALF, ALS).
The special case of the unseizability of business assets
To protect the working tools of sole traders and all businesses, the law has introduced a separation between their business assets and their personal assets. The principal residence of a sole trader may not be seized for business debts. Similarly, assets used for business purposes may only be seized by creditors whose debts arose in the course of the business. This principle is designed to ensure that a business difficulty does not result in the loss of all the entrepreneur's personal assets.
Reform of the seizure of remuneration: diversion explained
A major reform stemming from the Ministry of Justice's 2023-2027 Policy and Planning Act will radically alter the procedure for seizing wages and salaries. Hitherto managed by the courts, this procedure will be completely diverted from the courts and entrusted to judicial commissioners by 1 July 2025 at the latest. This reform is an important step towards simplifying and speeding up debt collection for creditors. For debtors, this means that their main contact will no longer be a magistrate but the judicial commissioner directly. A digital register of seizures will be set up to centralise information. The enforcement judge will retain a supervisory role and will continue to have jurisdiction to rule on any disputes.
What recourse do debtors have against seizure proceedings?
Debtors are not helpless when faced with a seizure by a bailiff, even if they are not solvent. There are several avenues of recourse and protection open to them to assert their rights and find a solution tailored to the debtor's financial situation.
Challenging the seizure before the enforcement judge (JEX)
The distrainee debtor has the right to contest a seizure that it considers unjustified or disproportionate. This challenge must be brought before the JEX, which has jurisdiction over all enforcement disputes. The grounds for challenge may be varied: irregularity in the procedure, seizure of an unattachable asset, incorrect amount of the debt, or the absence of a valid writ of execution. The time limit for taking action is generally one month from the date on which the debtor is notified of the seizure.
The over-indebtedness procedure: effective protection
The over-indebtedness procedure is an essential form of protection for individuals acting in good faith when faced with a financial situation that has no way out. Filing an application with the Banque de France over-indebtedness commission is free of charge. If the case is declared admissible, one of the immediate consequences is the automatic suspension of all current seizure procedures and a ban on initiating new ones for a maximum period of two years. This measure gives the debtor a breathing space while the commission draws up a recovery plan or, in the most critical cases, a personal recovery procedure. To find out more, see everything you need to know about the procedure for dealing with overindebtedness.
Negotiating an out-of-court repayment plan
Before resorting to the most restrictive measures, direct negotiation with the creditor or the court commissioner is always an option. Proposing a realistic payment schedule to settle your debt, even for small sums, can demonstrate your good faith and help you reach an amicable agreement. This arrangement makes it possible to suspend legal proceedings and avoid the additional costs associated with a seizure. It is advisable to put this agreement in writing so that you can keep proof of it.
The limitation period for a debt: protection for the debtor
Prescription is a legal mechanism that extinguishes a creditor's right to pursue recovery of a debt after a certain period of time. This is an important protection, as the debtor cannot be sued indefinitely. Time limits vary depending on the context, the nature of the debt and the writ of execution.
A fundamental distinction must be made:
- For a judicial enforcement order (a judgment) : The creditor has 10 years in which to enforce the court order, as set out in article L. 111-4 of the Code of Civil Enforcement Procedures.
- For other debts (including those in a notarial deed) : The limitation period for the claim itself applies. For example, a consumer debt is time-barred after 2 years (article L. 218-2 of the French Consumer Code), a commercial debt after 5 years.
This means that a creditor cannot wait indefinitely to take action. If the limitation period has elapsed, the debtor can raise this defence to defeat the seizure, even if the debt has never been paid.
Things to remember
Ultimately, a judicial commissioner can legally initiate seizure proceedings against a person who is not solvent, but his action is far from unlimited. The law has introduced a number of safeguards to protect debtors and preserve their dignity. Here are the key points to remember:
- Mandatory writ of execution : No seizure without a judgment or equivalent document.
- Seizure possible but restricted: Insolvency does not block proceedings if the debtor has assets that can be seized.
- Protection of essential assets : Bank balances that cannot be cashed in (SBI), essential furniture and most social benefits are protected.
- Reforms in progress : The procedure for attachment of earnings will be radically changed, with a transfer of jurisdiction to the judicial commissioners.
- Multiple remedies for the debtor : Challenging the claim before the JEX, filing an over-indebtedness claim and invoking the statute of limitations are effective defences.
The issue of seizure is complex, and the financial and personal stakes are high. It is therefore often essential to be assisted by a legal professional. If you are faced with a seizure, we strongly recommend that you call on a competent lawyer for its expertise, analyse your situation, advise you on the best strategy to adopt and defend your rights. Our firm, which has offices in Paris and the regions, is at your disposal to help you through these delicate procedures.
Sources
- Code of Civil Enforcement Procedures, articles L. 111-1 et seq (General principles)
- Code des procédures civiles d'exécution, articles L. 112-1 to L. 112-4 (seizable and unseizable property)
- French Labour Code, articles L. 3252-1 et seq (Attachment of remuneration)
- Code de la consommation, articles L. 711-1 et seq (Over-indebtedness procedure)
- Law no. 2023-1059 of 20 November 2023 on the orientation and programming of the Ministry of Justice 2023-2027
EN 
FR