Attachment is the preferred enforcement procedure for recovering sums of money. It is based on an apparently simple principle: a creditor, armed with a writ of execution, can attach sums owed to his debtor by a third party. However, this simplicity disappears when the claim has not yet arisen or fallen due on the date of seizure. Enforcement law then comes up against a fundamental, subtle distinction with major practical consequences: that between a future but certain claim, which falls within the scope of seizure, and a purely contingent claim, a mere expectation that cannot be seized. This boundary, drawn by case law, determines the very validity of the procedure and engages the responsibility of all those involved, from the creditor to the garnishee.
The basis for the seizability of claims under French law
To grasp the complexity of future claims, it is essential to return to the principles governing attachment for payment. It is crucial to understand the difference between a precautionary measureThis procedure is governed by the French Code of Civil Enforcement Procedures (CPCE), which sets out the rules for the enforcement of claims. This procedure is strictly regulated by the Code of Civil Enforcement Procedures (CPCE).
General principles of attachment for payment
The seizure-attribution procedure is defined by art. L. 211-1 of the CPCE. It enables a creditor in possession of a writ of execution recording a liquid and payable debt to seize the debtor's claims for a sum of money from a third party. Before tackling the complex distinction between certain and contingent claims, it is essential to understand the fundamental principles of attachment for payment and its mechanism of immediate attribution. This mechanism gives the seizing creditor ownership of the seized claim as soon as the writ of seizure is served by the bailiff, with the garnishee (or third party holder) becoming its direct debtor. However, there are some notable exclusions from the scope of this measure. Earnings from work (or wages) are subject to a specific procedure, the seizure of earnings, which organises a distribution between creditors and preserves an unseizable fraction for the debtor, known as the unseizable bank balance (SBI). Similarly, purely maintenance claims, such as pensions, are in principle unseizable, except for the payment of maintenance already provided.
Distinction from other intangible rights and simple faculties
Attachment is strictly limited to claims for sums of money. This restriction distinguishes it from other mechanisms designed to seize the debtor's assets, such as seizure for sale. Intangible rights such as company shares or securities are not subject to attachment for payment but to a procedure for the seizure and sale of intangible rights. The creditor must then bring about the forced sale of these rights in order to be paid the price. A distinction must also be made between a claim, which is an actual right in the debtor's assets, and a mere right, which is only a potential right. For example, an unused credit facility does not constitute a seizable claim by the customer against his bank, but merely a promise to lend. Similarly, case law has firmly established that the option to surrender a life insurance policy is not a claim by the policyholder against the insurer. As long as the policyholder has not exercised his right of surrender, he holds only a personal prerogative that cannot be seized by his creditors.
Fundamental distinction between certain and contingent claims in attachment proceedings
The question of the seizability of future claims is at the heart of much litigation. In response, case law has developed a cardinal distinction between certain claims, even future claims, and purely contingent claims. This analysis of future claims must be distinguished from the specific regime applicable to seizure of separate successive claimsThe stakes are high: a seizure relating to a claim that is deemed merely contingent will be declared null and void for lack of purpose. The stakes are high: a seizure relating to a claim deemed merely contingent will be declared null and void for lack of purpose, opening the way for the seizure to be contested, often on pain of nullity of the deed.
Definition and scope of a claim that is certain and a contingent claim
To be attachable, a claim must be certain in principle on the date of attachment. This does not mean that it must be liquid and due; in fact, art. L. 112-1 of the CPCE expressly permits the seizure of conditional debts, debts with time limits or debts with successive performance. A claim that is certain is therefore a claim that already exists, even if its payment is deferred (term claim) or subject to the realisation of a future and uncertain event (conditional claim). In contrast, a purely contingent claim is merely an expectation, a hope of a right that does not yet exist in law. The Civil Chamber of the Cour de cassation has gradually refined its vocabulary, abandoning the ambiguous concept of "claim in germ" and adopting the expression "contingent claim" to designate this simple potentiality, making it unattachable. It ruled, for example, that a seizure could not be carried out on a claim whose emergence depended on ministerial approval that had not yet been obtained.
Resolving contradictions in case law on future claims
The case law has sometimes appeared contradictory, stating on the one hand that the "contingent" nature of a claim is not an obstacle to seizure, and on the other that a seizure cannot relate to a contingent claim. These apparent contradictions can be resolved by a detailed analysis of the criterion of certainty. The doctrinal debate has been lively, with some authors arguing for a broad seizability of contingent claims, using the analogy of the sale of future assets or the flexibility of the Dailly assignment. However, the majority position, enshrined by the Cour de cassation, maintains a strict dividing line. The underlying justification for this distinction lies in the protection of the garnishee. He cannot be subjected to the constraints of an attachment even though his obligation to the debtor has not yet arisen. The seizure served by the bailiff cannot have the effect of forcing a third party to commit to or pay a debt that does not yet exist in principle.
Jurisprudential criteria for certainty: act or legal event giving rise to certainty
In order to distinguish a claim that is certain from one that is mere expectation, case law uses a fundamental criterion: the claim must have its source in a legal act or fact that has already taken place on the day of the seizure. It is the existence of this event that anchors the claim in the debtor's assets and makes it attachable.
A claim arising from an existing legal instrument (conditional or forward)
When a contract is validly formed, it gives rise to obligations and therefore to claims. It does not matter whether these claims are subject to terms and conditions. A term claim, where only the due date is deferred, is perfectly seizable. The same applies to conditional claims. For example, a claim for insurance indemnity arises as soon as the contract is entered into, even though it is subject to the suspensive condition that the loss occurs. Similarly, a claim for the return of funds subject to a condition may be seized. The seizing creditor will simply have to wait for the condition to be fulfilled before obtaining payment. On the other hand, until partition takes place, a co-owner has only a contingent right to the undivided property, not a definite claim to a sum of money.
A claim arising from a legal event that has occurred
A claim may also arise from a legal fact, such as a tort, delict or quasi-delict. A claim for damages arises as soon as the harmful event occurs. It is therefore certain in principle and can be seized, even if the amount has not yet been set by a court decision. The judgment will simply liquidate the claim, but will not create it. Similarly, the handing over of a sum of money to a third party (notary, bank) on condition that it is returned to the debtor immediately gives rise to a seizable restitution claim. However, a seizure carried out before the money was handed over would be pointless because the claim would not yet exist.
Complex cases and jurisprudential nuances: authorisation, will and apparent contradictions
Determining the existence of a claim becomes more complex when its creation depends on an external factor or the will of one of the parties. These borderline situations have given rise to essential clarifications in case law.
Claims subject to administrative or judicial authorisation
Case law makes a clear distinction between conditional claims and claims subject to authorisation. When a legal act is subject, for its very validity, to an administrative authorisation (ministerial approval, prefectoral decision) or judicial authorisation (authorisation of the guardianship judge), the resulting claim has no legal existence until the authorisation has been granted. For example, the sale price of a notary's office cannot be seized until the approval of the Keeper of the Seals has been obtained. Similarly, an agricultural indemnity subject to a prefectoral decision is only a hope until the administration has given its ruling.
Claims dependent on an expression of intent by the debtor
A claim whose existence is suspended by a voluntary decision of the debtor or third party is not a claim that is certain, but merely an option. It is not subject to attachment. A typical example is a unilateral undertaking to sell: the beneficiary of the undertaking only becomes liable for the price on the day the option is exercised. Prior to that date, the promisor has no seizable claim against him. Similarly, the shareholder's entitlement to dividends is not transformed into a definite claim against the company until the General Meeting decides to distribute profits. Prior to this decision, it is merely a corporate right, a claim to profits, and not a claim to a sum of money.
The impact of reforms and specific mechanisms on the seizability of future claims
The ordinary law on attachment for payment, which is rigorous in terms of the certainty of the claim, is sometimes relaxed by specific mechanisms or influenced by the particular context of insolvency proceedings.
Dailly assignment and seizability of future receivables
The assignment of trade receivables, governed by the so-called "Dailly" law, offers much greater flexibility than the attachment of receivables. This mechanism enables a company to assign to a credit institution future or even merely contingent receivables resulting from a deed "to be executed". The Dailly Act offers considerable flexibility because Dailly assignment mechanisms make it possible to mobilise future or simply determinable debts, thereby circumventing certain rigidities of the seizure-attribution procedure. Such assignments can even be made as security for a loan. The validity of the assignment of claims that are merely contingent is explained by the nature of the transaction, which most often remains confined to the relationship between the company and its bank, without the assigned debtor being notified as long as no incident occurs.
Seizability of future claims in the context of insolvency proceedings
The opening of collective proceedings (safeguard, receivership or liquidation) against a debtor has a direct impact on the seizability of its claims. The opening judgment freezes the debt and prohibits any new registration of security. A levy of execution carried out after the opening judgment would be null and void. With regard to future claims, the question is whether they arose before or after the judgment. Case law considers that a claim arising from a contract entered into prior to the opening of accounts is incurred on that date, even if it is performed afterwards. In the case of a Dailly assignment, the assignee may take advantage of the assignment of future receivables, even if they arise from a business carried on after the judgment, if the assignment note is dated before the date on which payments cease.
Role and responsibilities of the garnishee with regard to future and conditional claims
The garnishee, often a bank or notary, is a key player in the attachment process. They have onerous obligations and may be held liable, particularly in view of the complexity of future or conditional claims.
General obligation of the garnishee to declare
Art. L. 211-3 of the CPCE imposes an obligation on the garnishee to make an immediate and precise declaration to the judicial commissioner (formerly a bailiff). The garnishee is required to provide all relevant information on the extent of its obligations to the distrainee debtor, the terms and conditions affecting them (term, condition) and any previous assignments or seizures. This declaration is crucial because it determines the basis for the seizure. Failure to comply with this obligation, whether through refusal to declare, late declaration or inaccurate declaration, exposes the garnishee to severe penalties. Following formal notice, the garnishee may be ordered to pay the amount of the seizure personally, or to pay damages to the creditor who has suffered loss.
Specific responsibilities of banks and notaries with regard to future claims
As garnishees, banks and notaries are particularly exposed. Managing bank accounts or funds held on behalf of customers puts them in the front line. In practice, the bank's obligations The seizure is notified to the debtor within eight days, which underlines the importance of an accurate declaration. Erroneous statements about the nature of a claim (e.g. describing it as certain when it is only contingent) may give rise to professional civil liability. The creditor, relying on this declaration, could continue the procedure and then have the seizure declared null and void in the event of a dispute. The loss resulting from this useless procedure could then be charged to the garnishee at fault.
The distinction between a claim that is certain and a contingent claim is one of the most subtle in enforcement law. Given the complexity of the case law and the financial stakes involved, the assistance of a lawyer specialising in enforcement procedures is often decisive in securing the implementation of a procedure or contesting an abusive seizure. Please do not hesitate to contact us if you have any questions.
Sources
- Code of civil enforcement procedures
- Civil Code
- Monetary and Financial Code
- Commercial code
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