The seizure of assets placed in a safe is a specific operation of the enforcement law. Although little known, this procedure is governed by specific rules that are of practical interest to creditors.
1. Framework and conditions for precautionary seizure
Attachment allows the creditor to place the debtor's assets in the hands of the courts without a writ of execution. It differs from seizure for sale, which is aimed directly at realising the assets.
To carry out a protective attachment, the creditor must have either a title or a judicial authorisation. Under article L. 511-1 of the Code of Civil Enforcement Procedures (CPCE), authorisation from the enforcement judge is required if the creditor does not have a title. In such cases, the creditor must provide evidence of circumstances likely to jeopardise recovery of the debt.
The creditor may also rely on a writ of execution, an unenforceable court decision, an unpaid bill of exchange or unpaid rent resulting from a written contract (art. L. 511-2 CPCE).
2. Procedure specific to the safe
La procedure for seizing assets in a safe deposit box varies depending on whether the safe belongs to the debtor or to a third party.
If the safe belongs to the debtor and is installed at his home, the applicable procedure is that of ordinary seizure for sale (art. L. 221-1 CPCE).
However, when the safe belongs to a third party (such as a bank), special rules apply. The bank safe deposit box contract is not a deposit contract but a custody contract, as the Court of Cassation has ruled (Civ. 1re, 2 June 1993, no. 91-10.971).
Meaning and compulsory information
The procedure begins with a bailiff's deed served on the third party owner of the safe (art. R. 224-1 CPCE). This document must contain, under penalty of nullity :
- Identifying the debtor
- The reference to the title on which the entry is based
- Injunction to prevent access to the safe
- The third party's obligation to identify the safe
This measure overrides any professional secrecy that the banker may invoke (art. L. 123-1 CPCE).
A document is then served on the debtor on the next working day (art. R. 525-2 CPCE). This document denounces the act of seizure and mentions the ban on access to the safe outside the presence of the bailiff.
Territorial jurisdiction for disputes
The question of territorial jurisdiction for disputes is a complex one. Article R. 525-2, 5° CPCE designates the court of the debtor's domicile, while article R. 512-2 CPCE refers to the court that authorised the measure or the court of the debtor's place of residence.
This variation in terminology may give rise to difficulties of interpretation. A harmonious reading suggests that the special rule of article R. 525-2 prevails for disputes specific to the seizure of goods in safes.
3. Opening the safe and inventory
After service, the debtor may request that the safe be opened in the presence of the bailiff (art. R. 525-3 CPCE).
The bailiff then draws up a detailed inventory of the goods seized. The goods are removed and placed in the custody of the bailiff or a receiver appointed by the judge. In this case, the court with jurisdiction is that of the place of seizure.
The text authorises the bailiff to photograph the items removed from the safe, a useful practice in the event of a dispute at a later date.
A copy of the inventory is given or served on the debtor. On pain of nullity, this document must designate the enforcement judge competent to hear disputes relating to the seizure operations.
The seized assets are preserved until the end of the proceedings.
4. Conversion into a compulsory execution measure
When the creditor obtains a writ of execution, the protective attachment can be converted into a compulsory execution measure.
Article R. 525-5 CPCE distinguishes between two situations:
- If the goods have already been removed from the safe, either articles R. 522-7 to R. 522-14 CPCE (if the deed establishes a claim) or article R. 222-25 (if the deed orders the delivery of goods) apply.
- If the safe has not yet been opened, follow either the seizure-sale procedure (art. R. 224-3 to R. 224-9), or that of input-apprehension (art. R. 224-10 to R. 224-12).
This conversion requires a new notice to the debtor, informing him of the change in the nature of the procedure.
5. Impact of termination of the safe deposit box rental contract
One particular case deserves attention: if the safe rental contract is terminated during the procedure.
Article R. 525-4 CPCE states that the owner of the safe deposit box must immediately inform the bailiff of this termination. The bailiff then serves the debtor with a summons to be present when the safe is opened.
This opening cannot take place before fifteen days have elapsed. However, the debtor may request an earlier date.
If the debtor is absent, the safe is opened in the presence of the owner of the safe. The costs are advanced by the seizing creditor but remain payable by the debtor.
Sources
- Code des procédures civiles d'exécution, articles L. 111-2, L. 123-1, L. 221-1, L. 511-1, L. 511-2, R. 224-1 to R. 224-12, R. 512-2, R. 525-1 to R. 525-5
- Court of Cassation, 1st Civil Division, 2 June 1993, No. 91-10.971
- Natalie FRICERO, "Seizure of assets placed in a safe", Répertoire de procédure civile, March 2015
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
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