Claims for compensation before the JEX: how to obtain damages

When an enforcement procedure goes wrong, the enforcement judge (JEX) may order the party at fault to pay compensation for the damage caused. These prerogatives, set out in article L.213-6 of the French Code of Judicial Organisation, provide an effective remedy for victims of abusive or damaging executions.

Wrongful execution: a costly risk

Has your bank account been seized for a disputable debt? Is a creditor seizing your property disproportionately? The JEX can punish these excesses.

Recent case law (Civ. 2e, 15 May 2014, no. 13-16.016) has validated the release of a foreclosure for an asset valued at €50,000 when the claim was only €4,000. In this case, the disproportionate nature of the claim justified damages.

Claims against the creditor

Abuse of seizure

Article L.121-2 of the Code of Civil Enforcement Procedures clearly sets out the principle: the creditor chooses his enforcement measures, but this freedom ends where abuse begins.

Is abusive :

• Seizure in the absence of a claim (Civ. 2e, 10 March 2004, no. 02-16.900)
• A disproportionate seizure
• A seizure maintained despite the cancellation of the writ of execution

The debtor must prove :

• The measure is unnecessary or excessive
• The loss suffered

Damaging performance

Even if there is no clear abuse, an execution may cause a compensable loss. This applies to procedural irregularities or inappropriate executions.

During an eviction, a bailiff who damages property incurs the liability of the creditor. The JEX can order compensation on the basis of articles 1240 and 1241 of the Civil Code.

Claims against the debtor

Undue resistance

A debtor who multiplies unjustified obstacles to enforcement is liable to sanctions. Article L.121-3 of the Code of Civil Enforcement Procedures authorises the JEX to order the recalcitrant debtor to pay damages.

Case law uses dilatory intent as the main criterion (Civ. 2e, 6 March 2003, no. 01-02.745). On the other hand, legitimately defending one's interests in court does not constitute abusive resistance (Civ. 2e, 9 June 2011, no. 10-15.432).

Conditions of conviction

To be punished, abusive resistance requires :

• A writ of execution served in advance (Civ. 2e, 28 Oct. 1999, no. 97-12.734)
• A clear delaying tactic
• Prejudice to the creditor

A technical argument: compensation can be combined with a penalty payment in certain cases, as confirmed by the Court of Cassation (Civ. 2e, 11 Feb. 2010, no. 08-21.787).

Requests involving third parties

Actions against the bailiff

The bailiff may be held liable before the JEX for wrongful execution. But beware of the subtlety of the case law: the Cour de cassation distinguishes between two regimes depending on the nature of the fault.

If the fault is the result of poor execution of the mandate binding the creditor to the bailiff, the action falls within the jurisdiction of the court hearing the case on the merits and not the JEX (Civ. 2e, 21 Feb. 2008, no. 07-10.417). This consistent case law limits the powers of the JEX.

On the other hand, if a fault is committed during the enforcement itself, the JEX retains jurisdiction.

Actions against or by the garnishee

The garnishee (often a bank) may bring an action for liability against the seizing creditor if the seizure causes prejudice to it. The JEX must find that the right to seize has been abused (Civ. 2e, 22 March 2001, no. 99-14.941).

Conversely, article L.123-1 of the Code des procédures civiles d'exécution requires third parties to assist in enforcement proceedings, failing which they are obliged to comply, if necessary under penalty and with damages.

A case in point: a bank was ordered to pay the costs of the seizure for failing to comply with its obligation to provide information following an attachment order.

The applicable liability regime

Liability for fault or for risk?

The central question: does the debtor have to prove that the creditor is at fault in order to obtain compensation after a protective measure has been released?

For a long time, the chambers of the Court of Cassation were divided:

• The 2nd Civil Chamber (Civ. 2e, 29 Jan. 2004, no. 01-17.161) and the 3rd Civil Chamber (Civ. 3e, 21 Oct. 2009, no. 08-12.687) did not require proof of fault.
• The Commercial Chamber (Com. 14 Jan. 2004, no. 00-17.978) required the debtor to prove abuse of the right of withdrawal.

Developments in case law

The Commercial Chamber finally agreed with the Civil Chambers (Com. 25 Sept. 2012, no. 11-22.337), unifying the case law. From now on, mere prejudice will suffice, without the need to prove fault.

This no-fault liability regime is similar to that applicable to provisional enforcement (art. L.111-10 of the Code of Civil Enforcement Procedures): when the creditor acts to preserve his rights without a final title, he does so at his own risk.

The Cour de cassation confirmed this position in a ruling dated 2 March 2023 (no. 20-21.303), specifying that the request for stay of execution of a JEX decision which orders the release of a precautionary seizure extends the effects of this seizure and suspends the creditor's order to pay damages.

Strategies for preparing your claim

1. Gathering evidence of loss from the outset of enforcement proceedings
2. Document all costs and losses incurred
3. Keep a log of incidents relating to execution
4. Respond immediately to any procedural irregularities

Best practice? Challenge the measure from the outset if it seems abusive. If the order is subsequently lifted, the JEX will be more inclined to award damages.

For the precautionary measuresIf the creditor is not at fault, the immobilisation of funds may justify a claim for compensation.

Our firm regularly advises on these complex issues. The financial stakes can be considerable, particularly when valuable assets are blocked for lengthy proceedings. Contact us to assess your chances of obtaining compensation after a prejudicial execution.

Sources

• Code of Judicial Organisation, article L.213-6
• Code of civil enforcement procedures, articles L.111-10, L.121-2, L.121-3, L.123-1
• Civ. 2e, 15 May 2014, no. 13-16.016
• Civ. 2e, 10 March 2004, no. 02-16.900
• Civ. 2e, 6 March 2003, no. 01-02.745
• Civ. 2e, 9 June 2011, no. 10-15.432
• Civ. 2e, 28 Oct. 1999, no. 97-12.734
• Civ. 2e, 11 Feb. 2010, no. 08-21.787
• Civ. 2e, 21 Feb. 2008, no. 07-10.417
• Civ. 2e, 22 March 2001, no. 99-14.941
• Civ. 2e, 29 Jan. 2004, no. 01-17.161
• Civ. 3e, 21 Oct. 2009, no. 08-12.687
• Com. 14 Jan. 2004, no. 00-17.978
• Com. 25 Sept. 2012, no. 11-22.337