Attachment is a formidable recovery procedure for creditors, but it is governed by strict rules which, if ignored, can wipe out all its effects. At the heart of these requirements lie the legal capacity and power of the various parties: the creditor who seizes, the debtor who is subject to the measure, and the third party who holds the funds. An error of assessment of the legal position of any of these parties can lead to the invalidity of the deed, complex disputes and even penalties. The complexity of the rules governing capacity often makes it essential to involve a lawyer who is an expert in enforcement procedures in order to secure the procedure or organise an effective defence. Before analysing in detail the conditions of capacity and power of the parties, it is essential to understand the entire attachment procedurea powerful debt recovery mechanism.
The general framework of legal capacity in distraint proceedings
The validity of an attachment for payment does not depend solely on the existence of a writ of execution. It also depends fundamentally on the situation of the persons involved. Proceedings initiated by a person without the requisite authority or against a legally protected person can be challenged at any time.
Definition and roles of the parties involved in an attachment order
Attachment is a compulsory enforcement procedure that allows a creditor (the distrainor), in possession of a writ of execution, to immediately obtain the sums of money held by another person (the garnishee) on behalf of the debtor (the distrainee). Three players are therefore at the heart of this procedure. The seizing creditor is the person who initiates the measure to obtain payment of his debt. The distrainee debtor is the person whose debt has been distrained. Finally, the garnishee, often a bank, is the debtor of the seized debtor; it is obliged to declare the extent of its debts and pay the funds to the creditor.
The imperative of capacity and power: basis for the validity of the deed
For an attachment order to be valid, each party must have the legal capacity to act. Capacity is the ability of a person to hold and exercise rights. A distinction is made between capacity to enjoy (the ability to have rights) and capacity to exercise (the ability to put them into practice oneself). A lack of capacity, for example if the seizure is initiated by an unemancipated minor without a representative, may constitute a substantive defect. Similarly, the power to act, which is linked to the status of the person (for example, the power of a spouse to pledge joint property), is an essential condition. Failure to comply with these rules will result in the procedure being null and void or unenforceable, thereby protecting vulnerable persons or assets that should not be affected by the seizure.
Legal capacity of the distraining creditor: conditions and exceptions
A creditor wishing to recover a debt by means of an attachment order must not only have a valid writ of execution, but must also be fully entitled to take administrative action. The creditor's personal situation, in particular his or her marital status or any insolvency proceedings, may directly affect his or her power to act.
General principles of capacity and administration
Under article L. 111-9 of the French Code of Civil Enforcement Procedures, attachment for payment is an act of administration. This means that the creditor must have the legal capacity to manage his assets. An emancipated minor can therefore act alone. In the case of an unemancipated minor, his or her legal representatives (parents or guardian) must act on his or her behalf. The arrangements for protected adults vary. A person under court protection retains the exercise of their rights and can therefore initiate a seizure. On the other hand, an adult under guardianship will, in principle, have to be assisted by his or her guardian to receive the funds, even if he or she can initiate the procedure alone. In the case of adults under guardianship, it is the guardian who represents them and initiates the seizure on their behalf.
Influence of the matrimonial property regime on the creditor's capacity
The marital status of the spouses has a direct impact on the power of the distraining creditor. If the claim is a property belonging to one of the spouses (for example, from an inheritance), that spouse may act alone. If the claim is a joint claim, arising for example from the professional activity of a spouse married under the community property regime, each spouse has the power to administer the joint property alone and may therefore initiate the attachment. However, there is a difference in the case of professional income: the spouse who has a separate profession has sole authority to carry out the necessary administrative acts for that profession, including the collection of debts arising from it.
Capacity of creditor in collective proceedings or by derivative action
When a creditor is the subject of collective proceedings, his or her power to act changes. In the event of compulsory liquidation, the creditor is divested of the administration of his assets, and it is the liquidator who will exercise the rights and actions on his behalf. In the event of a safeguard, the director retains administration of the business and may therefore proceed with a seizure, but the funds recovered must be handed over to the administrator. In the case of receivership, everything depends on the role assigned to the administrator by the Commercial Court, which can range from simple supervision to full management of the business. In addition, a creditor may use the action oblique to exercise the rights of its own debtor if the latter is negligent. In this case, the creditor can levy a distraint order in the name of the debtor to ensure that the funds are returned to the debtor's assets.
The seized debtor's legal capacity and protective measures
Enforcement law has introduced a number of safeguards for debtors to ensure that seizures do not deprive them of their means of subsistence or damage assets that cannot be seized. These guarantees are particularly strong for vulnerable people and for certain categories of income.
Debtor who is a minor or protected adult: specific rules
The protection of vulnerable persons is a fundamental principle. If the seized debtor is an unemancipated minor, the seizure must be directed against the minor's legal representative. It is not necessary to notify the minor of the seizure. In the case of an adult under court protection, the attachment is directed directly against him or her. However, in the case of guardianship, article 467 of the Civil Code requires that any document served on an adult under guardianship must also be served on the guardian, on pain of nullity. Finally, in the case of an adult under guardianship, the seizure is made against the guardian, who represents the debtor in all acts of civil life.
Matrimonial property regimes, joint ownership and inheritance: issues for debtors
The debtor's family situation and assets are decisive. In the case of a debtor married under the community property regime, personal debts can, in principle, be pursued against community property. However, there is protection for the spouse's earnings and wages: a creditor may only seize the spouse's wages for debts incurred for the maintenance of the household or the education of the children (article 1414 of the Civil Code). In addition, article 1415 of the Civil Code protects joint property from debts resulting from a guarantee or loan taken out by only one spouse without the consent of the other. In the case of joint ownership, the personal creditors of a joint owner cannot seize his or her share of the undivided property. They may, however, bring about the division in order to obtain payment from the assets that will be allocated to them, for example at the end of a sale. Finally, in the case of an inheritance, a seizure can only be validly carried out against the heirs if the writ of execution has first been served on them at their home.
Co-ownership syndicate or debtor in collective proceedings
A syndicate of co-owners, represented by its managing agent, has legal personality and a registered office, and can therefore be a debtor subject to seizure. No prior authorisation from the general meeting of co-owners is required for the syndicate to contest a seizure for payment. If the debtor is the subject of insolvency proceedings, the judgment opening the proceedings stops or prohibits any individual proceedings by previous creditors. A distraint order made after the date of the opening judgment for an earlier claim would therefore be null and void. On the other hand, if the seizure was served on the garnishee before the judgment, the immediate allocation of the claim to the seizing creditor is not called into question by the collective proceedings.
Amounts exempt from seizure: salaries, pensions, allowances and sbi
The law protects part of the debtor's income to guarantee a minimum standard of living. Among the most important protections are those governing attachment of earningsThese rules apply not only to wages, but also to retirement pensions, unemployment benefit and daily sick pay. These rules apply not only to wages, but also to retirement pensions, unemployment benefit and daily sick pay. Other benefits are completely exempt from seizure, such as family allowances, the disabled adults' allowance (AAH) or the active solidarity income (RSA), except for the payment of certain specific debts (alimony, maintenance costs). This protection is supplemented by the Irrecoverable Bank Balance (IBS)The SBI guarantees that all individuals retain a minimum amount in their account, regardless of the amount of their debt. The SBI is a flat-rate amount equivalent to the RSA for a single person. Finally, it should be noted that a major reform of the seizure of remuneration will come into force on 1 July 2025, diverting the procedure from the courts and entrusting it to judicial commissioners (formerly bailiffs and auctioneers).
The status and obligations of the garnishee: a central player in the proceedings
The garnishee, although not a direct party to the initial dispute, plays an essential role in the smooth operation of the attachment order. His declarations and payments determine the success of the measure. Their obligations are therefore strictly regulated, and any breach may render them personally liable.
Definition of garnishee and its obligation to declare
The garnishee is any person who holds sums of money on behalf of the garnishee debtor. This could be a credit institution, a tenant, a notary or even a lawyer via the CARPA. As soon as the bailiff serves the writ of attachment, the garnishee is required to inform the bailiff immediately of the extent of his obligations towards the debtor. This reply must be precise and complete. In particular, the third party must indicate the number of the accounts concerned, their balance at the date of seizure, any terms affecting their payment (term, conditions) and the existence of any assignments of claims or previous seizures. As the central player, the garnishee, often a bank, must scrupulously comply with the following requirements its obligations and responsibilitiesFailure to do so may result in severe penalties. Failure to comply with this obligation to provide information, in the absence of a legitimate reason, may result in the debtor being ordered to pay the costs of the seizure, or even damages.
Third parties seized in insolvency proceedings: agents and commissioners
The situation becomes more complex when legal representatives are involved. Case law has clarified that court-appointed administrators and liquidators can act as garnishees. For example, an attachment may be levied on a liquidator who holds funds on behalf of a creditor of the company in receivership. Similarly, the commissioner responsible for implementing the plan may be considered a garnishee in respect of sums held by him in the course of his duties. These agents are then subject to the same reporting obligation as any other garnishee, and their personal liability may be incurred in the event of inaccurate reporting or failure to respond.
Penalties and remedies in the event of non-compliance with the rules on capacity or authority
The formalism of civil enforcement procedures is not simply an administrative constraint. It guarantees the rights of each party. Failure to comply with the rules on capacity, powers of attorney, or compulsory particulars in deeds, opens the way to challenges that can destroy the procedure. In the event of non-compliance, debtors have a number of remedies at their disposal to contest the validity of the seizure and obtain its release.
Grounds for invalidity and lapse of the attachment order
An attachment for payment may be declared null and void on the grounds of formal or substantive defects. Defects of form concern failure to comply with the compulsory information in the attachment deed or notice of attachment (for example, the absence of a detailed breakdown of the claim). Defects of substance are more serious and affect the essential conditions of attachment by way of payment: absence of a valid writ of execution, a claim that is not liquid or due, or a lack of capacity on the part of one of the parties. In addition, the procedure may lapse if the creditor fails to notify the debtor of the seizure within eight working days of notification to the garnishee. Such a lapse retroactively annuls all the effects of the seizure.
The Enforcement Judge (JEX): jurisdiction and limits in the review of validity
Under French law, the enforcement judge (JEX) has sole jurisdiction to hear disputes relating to an attachment order. His jurisdiction is a matter of public policy. He can rule on the formal validity of procedural acts, but also on substantive issues that have an impact on enforcement, such as the statute of limitations on the debt. However, there are clear limits to his powers, which have been constantly reiterated by the Cour de cassation: he cannot change the terms of the court decision that serves as the basis for the proceedings. It cannot therefore call into question the very principle of the conviction. However, he can take account of events subsequent to the judgment, such as a partial payment, to adjust the amount of the seizure. His role is therefore to ensure that the execution is carried out correctly, not to retry the case.
Remedies and penalties for lack of capacity/authority
A debtor who wishes to contest an attachment order must take action within one month of being notified of the deed, by summoning the creditor before the Enforcement Judge. This challenge, notified to the bailiff by registered letter, suspends payment. If the JEX upholds the challenge, it will order the seizure to be lifted and the seizure will be cancelled. If the garnishee has failed to fulfil its obligations, the creditor may summon the garnishee to pay the sums due. The JEX's decisions may be appealed within fifteen days, but the appeal does not have suspensive effect. In addition to nullities, a creditor who initiates proceedings with the knowledge of a manifest default by one of the parties could be held liable for wrongful levy of execution.
Mastery of the rules governing capacity and power is essential if you are to secure a seizure of assets procedure and avoid the pitfalls that can lead to it being declared null and void. If you are faced with such a measure, whether you are a creditor, debtor or garnishee, the assistance of a lawyer specialising in enforcement procedures is essential for assessing the validity of acts and effectively defending your rights.
Sources
- Code of civil enforcement procedures
- Civil Code
- Commercial code
- French Labour Code
- Social Security Code
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