Attachment is an essential civil enforcement procedure for any creditor with a writ of execution seeking payment of a debt. Particularly effective when applied to sums of money held by a third party in an account, such as a bank, it is now the most common method of enforcement. However, its apparent simplicity masks a far-reaching legal transformation brought about by the major reform of civil enforcement procedures (Act no. 91-650 of 9 July 1991). This article looks back at the origins of this enforcement mechanism, analysing the break with the old seizure-attribution procedure and exploring the legal nature of seizure-attribution, which is a genuine forced assignment of a claim for the benefit of the creditor.
From attachment to garnishment: key differences and historical developments (1991 Act)
Prior to the entry into force of the Act of 9 July 1991 (JORF 14 July 1991), the seizure of money claims was governed by the garnishment procedure, a mechanism inherited from the former Code of Civil Procedure (CPC) of 1806. This enforcement procedure was characterised by its complexity and slowness. It was of a hybrid nature, taking place in two distinct phases: a first phase, a purely protective measure, initiated by the act of seizure which rendered the claim unavailable, followed by a compulsory judicial phase before the judge. The creditor had to obtain a decision, a judgment of validity, before the garnishee could be ordered to pay the funds into his account.
The main disadvantage of this system, often criticised by academic writers (in particular R. Perrot and P. Théry), was that the creditor had no right of his own to the seized claim throughout the protective phase. The claim remained in the seized debtor's assets, simply subject to unavailability. As a result, the first seizing creditor was not protected in any way against possible competition with other creditors of his debtor. The latter could join the proceedings and claim their share of the sums seized as long as the judgment of validity had not been handed down, creating legal uncertainty and weakening the effectiveness of enforcement.
Faced with these cumbersome procedures, the Act of 9 July 1991, supplemented by its implementing decree (Decree no. 92-755 of 31 July 1992), made a radical change by replacing garnishment with attachment. The legislator's objective was clear: to simplify the enforcement procedure and enhance its effectiveness. The reform abandoned the hybrid nature and systematic judicial phase in favour of a purely enforceable measure based on an innovative principle: the immediate allocation of the claim to the seizing creditor. While this reform has profoundly modernised the seizure of debts, it is essential to place it in the context of an overall reform of the system. comparative overview of different seizure procedures to fully appreciate its scope and specific features in enforcement law.
The principle of immediate and automatic attribution of the claim: a legal transformation
The heart of the 1991 reform lies in the principle of immediate assignment by operation of law, set out in article L. 211-2 of the Code of Civil Enforcement Procedures. This text, the cornerstone of the new procedure, provides that "the seizure deed entails, up to the amount of the sums for which it is carried out, immediate allocation to the distrainor of the seized claim available in the hands of the third party, as well as all its accessories".. This provision fundamentally transforms the nature and effects of the seizure.
Attribution is described as "immediate" because it occurs as soon as the writ of attachment is served by the judicial commissioner (formerly a bailiff) on the garnishee. At that precise moment, the claim leaves the debtor's assets to become part of the seizing creditor's assets, without having to wait for any validation ruling from the enforcement judge. It is also "ipso jure", which means that this operation is carried out automatically by operation of law alone, without any other formality or court order being required.
The direct consequences of this principle are major. Firstly, the garnishee, for example a bank, becomes personally indebted to the seizing creditor (Cass. com., 14 May 2013, no. 12-20.898). It can no longer validly discharge its debt by paying its original creditor, the seized debtor. If he were to pay in defiance of the attachment, he would expose himself to the penalty of paying a second time. Secondly, once the debt has left the debtor's assets, it can no longer be seized again by another creditor. The first distrainor is therefore protected from any further assistance, a major advance in terms of enforcement.
Attachment as a compulsory assignment of debt: implications and legal scope
From a doctrinal point of view, and as analysed by numerous authors (including Perrot and Théry), the immediate attributive effect confers on seizure-attribution the nature of a forced assignment of a claim. The distraining creditor does not simply obtain a preferential right over his debtor's claim; he becomes its new owner, as if the claim had been forcibly assigned to him by judicial authority. This classification as a forced assignment of a claim opens up complex debates on the legal nature of funds seized from a bank accountThis is particularly true for book money.
This analysis has decisive practical implications. As the new holder of the claim, qualified as a successor in title, the distraining creditor acquires all the rights and actions attached to it. Article L. 211-2 of the Code of Civil Enforcement Procedures specifies that the assignment relates to the claim "as well as all its accessories", which includes in particular the securities that guaranteed it. However, in a decision that surprised academic writers, the Court of Cassation ruled that only accessories "expressed in money" could be transferred, excluding a lender's lien (Cass. 2e civ., 7 Apr. 2011, no. 10-15.969), an interpretation criticised by Roger Perrot for its ambiguous wording.
In return for this transfer, the distraining creditor is also exposed to the same defences as the original debtor. The garnishee can raise all the defences that he could have raised against his original creditor before the seizure, such as set-off against another debt or the nullity of the original contract. This is a direct application of the principle that no person may transfer more rights than he has himself (Nemo plus juris ad alium transferre potest quam ipse habet), a fundamental point in enforcement law.
Consequences of immediate allotment with regard to creditors' claims and collective proceedings
One of the most tangible benefits of the 1991 reform is the abolition of competition between unsecured creditors. By abandoning the principle of equality that prevailed in garnishments, immediate allocation introduces a genuine "first to seize privilege". The rule is simple: the first to initiate the enforcement measure is the first to be served, in full, up to the double limit of his claim and the funds available on the account. The creditor's diligence is thus rewarded, a logic at the heart of effective enforcement.
This protection is particularly robust, even in the face of the risk of insolvency proceedings. Article L. 211-2 of the Code of Civil Enforcement Procedures states this unambiguously: "Subsequent notification of other seizures or any other levy, even by preferential creditors, and the occurrence of a judgment opening safeguard, receivership or compulsory liquidation proceedings, do not call this allocation into question".. Consequently, a creditor who has levied a distraint order, even on the eve of the opening judgment, retains the benefit of his action. As the seized claim has already left the debtor's assets, it is not included in the assets of the collective proceedings and is therefore not subject to the common rules.
The effectiveness of this enforcement mechanism can also be seen in the banking context, where unit account or netting agreements may link several accounts of the same customer. By freezing the balances on the day of seizure, the seizure-attribution makes it possible to clarify a sometimes complex accounting situation and to guarantee payment to the seizing creditor on all available assets, thereby consolidating his position, under the control of the enforcement judge in the event of a dispute over the amount seized.
The roots of immediate payment: third-party notices and direct payment of pensions
The principle of immediate allocation, although revolutionary in 1991 for seizures under ordinary law, was not created ex nihilo. On the basis of a report by the then Minister of Justice, Pierre Arpaillange, the legislator drew inspiration from a number of special procedures that had already proved their effectiveness in terms of enforcement.
The first source of inspiration is the avis à tiers détenteur (now known as saisie administrative à tiers détenteur or SATD), an enforcement procedure for recovering public debts. This tool enables a public accountant to obtain payment of tax directly from third parties holding funds on behalf of the debtor, with immediate effect. Its simplicity and effectiveness have logically served as a model.
The second source is the direct payment of maintenance (Act of 2 January 1973). Introduced to ensure prompt payment of unpaid maintenance, it enables the maintenance creditor to apply directly to the debtor's employer or bank to obtain monthly payment of the maintenance. Here again, the mechanism is based on a direct transfer of the claim. Finally, the local law of Alsace-Moselle, which already had more direct enforcement procedures, also influenced the thinking that led to this major reform of enforcement law.
The 1991 reform was therefore a decisive step in the modernisation of enforcement procedures. By replacing garnishment with attachment for payment, the legislator provided creditors with a simple, rapid and particularly protective tool. The principle of immediate allocation, analysed by legal writers as a forced assignment of debt, has not only resolved the problems of competition between creditors but has also strengthened the legal certainty of debt collection. Understanding these developments and the case law of the French Supreme Court (Cass. civ.) is crucial to the success of a procedure in the face of these challenges, the assistance of a lawyer specialising in enforcement procedures is essential for securing the collection of your debts.
Sources
- Code of civil enforcement procedures
- Civil Code
- Law no. 91-650 of 9 July 1991 reforming civil enforcement procedures
- Decree no. 92-755 of 31 July 1992 instituting new rules relating to civil enforcement procedures
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