The seizure of property, a procedure by which a creditor can have a property sold to recover his debt, is often perceived as a technical and unchanging measure. However, it is the result of a long and complex evolution of French law, marked by a constant search for balance between the protection of property ownership, the rights of the debtor and the necessary efficiency of the recovery process for the creditor. Understanding its history, from its roots in the Ancien Droit to the reforms that have shaped contemporary law, is essential to grasping the current mechanisms and challenges of this means of enforcement.
The foundations of property seizure before 1938: a fragmented law
Prior to the first major unifying reform of the 20th century, the law governing the seizure of property was a patchwork of rules accumulated over the centuries. The instability of this legal framework reflected the economic and social tensions of different eras. This exploration of its legal roots provides a better understanding of the issues at stake and the complexity of the foreclosure procedure contemporary.
Origins and specific features of seizure under the Ancien Régime
The forced expropriation of real estate was slow to establish itself in the French legal system. First introduced in the 13th century, it came up against the feudal structure of society, where land ownership, mainly held by the nobility, was at the heart of the suzerainty relationship. From the outset, the procedure was governed by the following rules restrictions and protective formalities of land ownership, a concern that is reflected today in modern mechanisms for defending debtors who have been seized. At the time, the law was fragmented, with each local custom having its own customs regarding seizure.
A first attempt at standardisation came with the edict of 1551 on «criées», which sought to introduce a single procedure for seizure in rem. However, the spirit of the regulations was still characterised by a certain degree of favouritism towards the debtor. For example, the debtor had the option of buying back his property after the auction or of renewing the auction, mechanisms that considerably slowed down the recovery of the debt.
The contributions of revolutionary and Napoleonic law
Revolutionary legislation, in its desire to break away from the complexities of the Ancien Régime, attempted to simplify and accelerate the seizure procedure. The laws of 9 Messidor An III and 11 Brumaire An VII bear witness to this effort at rationalisation, which was approved by the assembly in power, even though the former was never really applied. The second, on the other hand, marked a significant improvement by streamlining the enforcement process.
Napoleonic legislation then brought about a structural dissociation of the rules. The Civil Code of 1804 devoted a title to forced expropriation, while the Code of Civil Procedure of 1806 detailed the mechanisms. Paradoxically, this overhaul led to a return to great complexity. Drafted by practitioners trained in the Ancien Droit, the seizure procedure once again became more cumbersome, perhaps as a reaction to the simplicity deemed excessive by the previous revolutionary assembly.
The reforms of the 19th century and the emergence of mortgage lending
The Napoleonic framework quickly proved ill-suited to the economic realities of the 19th century. Several legislative adjustments, approved by each assembly, came to correct it. The Act of 2 June 1841 represented a significant step forward in simplifying the procedure, in particular by abolishing several mandatory auction hearings. Other legislation, such as the Acts of 1858 and 1881 passed by the Assembly, continued the work of modernising the auction procedure.
A major turning point, however, was the boom in mortgage lending. To encourage the development of the building industry, it became imperative to provide security for lenders. The decree of 28 February 1852 introduced a simplified and accelerated seizure procedure for Crédit Foncier, which was then extended to other credit companies and to every bank that granted a loan. This exceptional system, designed to make the recovery of mortgage loans more efficient, illustrates how economic needs have directly influenced the development of enforcement procedures against real estate assets.
The decree-law of 17 June 1938: a structural overhaul
It was not until 1938 that the first real attempt was made to systematise the law on seizure of property. This decree-law formed the basis of the procedure for most of the twentieth century, even though its application was gradually amended by successive partial reforms.
Background to and reasons for the 1938 decree-law
The Decree-Law of 17 June 1938 was the result of lengthy drafting and convergent initiatives by the Chancellery, the two Houses of Parliament and legal practitioners, and had a twofold objective that almost everyone agreed on: to make the procedure less costly and better protect the interests of all parties. The aim was to completely overhaul the provisions of the old Code of Civil Procedure to create a more modern, coherent and balanced framework, in response to criticism that the existing procedure was archaic.
Specific features of the Alsace-Moselle scheme
The decree-law of 1938 did not put an end to the special nature of local law in Alsace-Moselle. The law of 1 June 1924 had kept in force the local procedural laws, in particular the land registration system based on the Livre Foncier. The main specificity of this system lies in its largely non-judicial nature. The procedure is mainly conducted under the direction of the notary, who plays a central role in preparing the sale by auction, an approach that contrasts sharply with the general system where a court plays a predominant role.
Partial legislative changes post-1938 (before 2006)
After 1938, the property seizure procedure underwent a series of partial changes. Decrees in 1948, 1955 and on 7 January 1959 adapted the rules to the reform of land registration and the introduction of legal security. Later, laws such as that of 23 January 1998 introduced protective measures for people in debt. The Act of 9 July 1991 reforming civil enforcement procedures, which came into force on 1 January 1993, marked an important step forward by creating the enforcement judge (JEX), with general jurisdiction over enforcement procedures.
However, this law kept the seizure of property outside the jurisdiction of this new judge, creating a dual jurisdiction that has been criticised. Similarly, a 1967 decree providing for a further overhaul never came into force. This stratification of scattered texts, added to the non-application of certain reforms and the exclusion of the seizure of property from the jurisdiction of the new enforcement judge, made a new global recasting essential to ensure better coherence in the area of seizure of property.
Contemporary reforms: the 2006 Order and the Code of Civil Enforcement Procedures
At the beginning of the 21st century, the need for a comprehensive modernisation became obvious. The 2006 ordinance represented a real overhaul, followed a few years later by the creation of a dedicated code, which now organises all enforcement procedures in France.
The 2006 ordinance and implementing decree: objectives and guiding principles
Ordinance no. 2006-461 of 21 April 2006, supplemented by its implementing decree, completely reformed this area. The accompanying report to the President of the Republic clearly set out the main guiding principles, which received unanimous support: to establish a common set of rules, to guarantee a better balance between the rights of the debtor and the interests of the creditor, and to simplify the procedure. To achieve this, the reform set itself the task of pursuing a number of concrete objectives: strengthening the role of the judge, making the debtor more responsible by opening up the possibility of an amicable sale, making the procedure more secure by imposing payment guarantees on the purchaser, such as depositing the price with the Caisse des Dépôts, and speeding up the process by limiting dilatory disputes, particularly after service of the summons to pay for the seizure of the property by a bailiff. One of the most symbolic innovations was the introduction of an out-of-court sale with judicial authorisation, marking a desire to bring the seizure of property as close as possible to movable execution procedures.
The introduction of the Code of Civil Enforcement Procedures (CPCE)
Following on from this modernisation, the legislator undertook a codification exercise to bring together all the rules relating to enforcement. This proposal for clarification and consolidation led to the introduction of the Code of civil enforcement procedures (CPCE), the cornerstone of modern enforcement procedures. Created by an ordinance in 2011 for its legislative part and a decree in 2012 for its regulatory part, this code has taken over the existing rules in constant law, i.e. without changing their substance. Its main contribution was to provide an improved structure and new numbering, thereby improving the readability and accessibility of enforcement law, particularly for the deposit of funds with Caisse des Dépôts.
Extending the powers of the enforcement judge
The 2006 reform corrected a major anomaly stemming from the 1991 law by unifying enforcement proceedings in the hands of a single judge. In particular, the 2006 Order marked a decisive step forward by significantly extending the scope of enforcement proceedings. powers of the Enforcement Judge (JEX) to all litigation relating to the seizure of property, as well as to the procedure for the distribution of the price. This consolidation has led to a welcome harmonisation of procedures within each judicial court. The JEX now has jurisdiction to examine all disputes and incidental claims, even if they concern the substance of the law. At the same time, the role of the court registry has been increased, and the principle of compulsory representation by a lawyer has been affirmed at first instance, underlining the technical nature of civil matters, as illustrated by the debates before the mixed chamber of the Court of Cassation on the enforceability of notarial deeds.
The seizure of property in relation to fundamental rights and its public policy nature
The seizure of property procedure, insofar as it can lead to the deprivation of the right of ownership, has been confronted with the requirements of fundamental rights. However, the Constitutional Council ruled that it did not fall within the scope of article 17 of the Declaration of 1789 on expropriation, as it is a means of paying a debt. The European Court of Human Rights adopted a similar position, validating the principle of the procedure on the grounds of the necessary balance between the protection of property and the right to recover debts.
The provisions governing the seizure of property are a matter of public policy. This means that the parties cannot derogate from them through specific agreements. For example, article L. 311-3 of the CPCE formally prohibits «parry» clauses, which would allow a creditor to sell the seized property of his debtor without following the legal procedure of a summons to pay. This mandatory nature underlines the importance of the guarantees that underpin this enforcement measure. Furthermore, in response to legislative developments, the legislator has had to specify the rules concerning the application of reforms over time, For a long time, case law held that once a compulsory sale had been ordered, no other method of sale was possible. For a long time, case law held that once a compulsory sale had been ordered, no other method of sale was possible. However, the Justice Programming Act of 23 March 2019 has made this principle more flexible by authorising sales by private treaty subject to certain conditions regarding the deposit and consignment of the price, even after the referral judgment.
The history of property seizure shows that it is becoming increasingly complex and is constantly adapting to economic and social realities in France, including the problem of over-indebtedness. The complexity and constant evolution of property seizures demonstrate the importance of tailor-made support. Whether you are a creditor or a debtor, the assistance of a expert in property seizures is crucial to navigating these procedures and effectively defending your interests.
Sources
- Code of civil enforcement procedures (Articles L311-1 et seq., R311-1 et seq.)
- Civil Code
- Former Code of Civil Procedure
- Order no. 2006-461 of 21 April 2006 reforming the seizure of property
- Decree-Law of 17 June 1938
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