Attachment: securing your rights to tangible personal property

Disputes over the ownership or possession of movable property can become complex. When an item belongs to you but ends up in the hands of a third party, there is a specific procedure to protect your rights: seizure and reclamation. Although little known to the general public, this protective measure is a powerful legal tool if you know how to use it correctly.

Understanding seizure and reclamation

Definition and objective

Seizure is a protective measure that renders movable property unavailable until a final court decision orders its return to the claimant. Its purpose is to prevent the disappearance, deterioration or disposal of an asset during legal proceedings.

As stated in article L. 222-2 of the Code of Civil Enforcement Procedures (CPCE): "Any person apparently entitled to demand the delivery or restitution of tangible movable property may, pending its delivery, make it unavailable by means of a seizure-claim.

This procedure makes it possible to "freeze" the legal status of the asset, without stripping the holder of the asset.

Legal framework

The legal regime for seizure and reclamation is mainly defined by articles L. 222-2 and R. 222-17 to R. 222-25 of the CPCE. Since 2012, these provisions have replaced the former articles 155 et seq. of decree no. 92-755 of 31 July 1992.

Unlike enforcement measures, seizure and sale does not require a prior writ of execution. In particular, it differs from seizure-apprehension, which allows the actual removal of the property so that it can be handed over to the creditor.

Nature conservation

The seizure of a claim belongs to the category of protective measures. It does not prejudge the merits of the claim and does not allow the property to be handed over immediately. Its main effect is to render the property unavailable in the hands of the holder, pending a decision on the merits of the case. However, it is essential to be aware of the obstacles and limits which may affect this provisional measure.

Case law has confirmed this protective nature, in particular in a ruling by the 2nd Civil Chamber of the Court of Cassation on 18 February 1999, which stated that an application for authorisation to seize a claim constitutes the implementation of a compulsory enforcement measure.

Conditions of use

Person apparently entitled to act

Any person apparently entitled to demand delivery or restitution of movable property may bring an action. This deliberately broad formulation includes :

• The owner of the property
• The buyer who has not received delivery
• The depositor claiming his property from the depositary
• The lender requesting the return of a loaned item
• The unpaid lessor
• The beneficiary of a retention of title clause
• The holder of a special lien

It is up to the judge to assess the apparent nature of the right claimed, without however prejudging the merits. In a judgment of 31 May 2001 (no. 99-11.107), the Cour de cassation reiterated that it is up to the person who applies for a seizure and reclamation to establish the apparent nature of the right that he or she is asserting.

Prior judicial authorisation

Article R. 222-17 of the CPCE establishes in principle the need for prior authorisation by the judge issued on application. This authorisation is issued by the enforcement judge in the place where the debtor resides, in accordance with article R. 511-2 of the same code.

The court order must specify the property that may be seized and the identity of the person required to deliver or return it. The order may be enforced against any holder of the designated property, enabling the creditor to seize the property even if it is no longer in the hands of the original debtor.

Types of goods concerned

Seizures may only be carried out on tangible movable property, excluding immovable property and intangible movable property (receivables, company shares, etc.).

• Furnishings (furniture, equipment, etc.)
• The vehicles
• The goods
• Stocks
• Works of art
• Family heirlooms (according to a Court of Cassation ruling of 29 March 1995)

Fungible (interchangeable) goods can also be claimed if they are sufficiently individualised.

Exemptions from authorisation

By way of exception, article L. 511-2 of the CPCE exempts creditors who hold :

• A writ of execution
• A court decision that is not yet enforceable

These exemptions make it possible to speed up the procedure when the creditor already has a title establishing his right.

Execution of the seizure

Place of performance

Article R. 222-20 of the CPCE states that a seizure may be carried out at any place and in the hands of any holder of the property.

There is one notable exception: if the property is located in a dwelling belonging to a third party, special authorisation from the judge is required. This additional protection is designed to guarantee the inviolability of the home.

Seizure deed and compulsory information

The bailiff must draw up a writ of seizure which contains, under penalty of nullity (article R. 222-21 of the CPCE) :

1. The mention of the judge's authorisation or the title allowing the seizure
2. Detailed description of the seized property
3. The holder's declaration concerning any previous seizure
4. Indication that the property is in the custody of the holder
5. Mention of the right to contest the validity of the seizure
6. Designation of the competent court for disputes
7. The names and positions of the persons present at the time of the operations
8. Reproduction of applicable texts

The bailiff may take photographs of the seized goods, which are kept for possible subsequent verification.

Notification and service

Once the writ of seizure has been drawn up, it is given to the holder. The bailiff must verbally remind him of his obligations and his right to contest the measure.

If the holder is absent at the time of the operations, a copy of the document is served on him. He then has eight days to inform the bailiff of any previous seizure.

When the seizure is carried out in the hands of a third party, the document must also be served within eight days on the person required to deliver or return the property.

Rights of the holder

The holder of the seized property retains a number of rights:

• He can continue to use the property (without being able to dispose of it)
• He has the right to contest the validity of the seizure and to ask for it to be released.
• He can assert a right of his own over the seized property (e.g. right of retention).

In the event of a dispute, it is up to the holder to refer the matter to the competent court under the conditions set out in article R. 222-18 of the CPCE.

Effects and consequences of seizure

Unavailability of the asset

The main effect of seizure is to render the property unavailable. The holder may not dispose of it or move it, unless there is a legitimate reason for doing so, and after informing the creditor.

This unavailability is punishable under criminal law: article 314-6 of the French Criminal Code makes misappropriation of a seized object punishable by three years' imprisonment and a fine of 375,000 euros.

Custody of the property

The seized property is placed in the custody of the holder, who becomes responsible for its safekeeping. However, article R. 222-23 of the CPCE provides that, at any time, the enforcement judge may authorise, on request, the delivery of the property to a receiver appointed by the judge.

This solution may be appropriate where there is a risk of damage or misappropriation of the property by the holder.

The holder's own rights

Article R. 222-24 of the CPCE provides for the case where the holder asserts a right of his own over the seized property (right of retention, right of use, etc.). In this case, the holder must inform the bailiff by registered letter with acknowledgement of receipt.

The distraining creditor then has a period of one month in which to contest this right before the enforcement judge. Failing this, the unavailability automatically ceases, and the creditor is deemed to have tacitly accepted the holder's claim.

Converting to input-apprehension

As a seizure and claim is only a provisional measure, it must be followed by an action on the merits to obtain an indemnity. enforcement order. Article R. 511-7 of the CPCE requires the creditor to initiate proceedings or complete the formalities necessary to obtain an enforcement order within one month of enforcement of the measure, failing which the order will lapse.

Once the writ of execution has been obtained, the seizure may be converted into a input-apprehensionThis allows the goods to be effectively removed and handed over to the creditor.

Article R. 222-25 of the CPCE sets out the procedures for this conversion, which is carried out in accordance with the seizure and attachment rules set out in articles R. 222-2 to R. 222-10 of the same code.

Conclusion

Attachment is a complex but essential legal mechanism for protecting your rights over movable property. Its protective nature and the specific features of its enforcement require a thorough knowledge of the Code of Civil Enforcement Procedures. If you have any questions, or if you would like to be assisted in this process, please do not hesitate to consult a member of our team. lawyer specialising in enforcement procedures.

Sources

• Articles L. 222-2 and R. 222-17 to R. 222-25 of the Code of Civil Enforcement Procedures
• Article 314-6 of the Criminal Code
• Judgment of the 2nd Civil Division of the Court of Cassation of 18 February 1999 (no. 96-21.218)
• Judgment of the 2nd Civil Chamber of the Court of Cassation of 31 May 2001 (no. 99-11.107)
• Ruling of the 2nd Civil Division of the Court of Cassation of 29 March 1995 (no. 93-18.769)
• Decree no. 92-755 of 31 July 1992 (historical provisions)
• Order no. 2011-1895 of 19 December 2011 relating to the legislative part of the Code of Civil Enforcement Procedures