The seizure and sale of movable property is a compulsory execution procedure that enables a creditor to sell the debtor's property and obtain payment from the proceeds. While it represents the culmination of a debt collection process, its implementation is governed by strict conditions relating to both the person and the nature of the goods. Given the complexity of such a measure, the intervention of a foreclosure lawyer is often decisive. The aim of this article is to summarise the main principles of this procedure, a subject we cover in depth in dedicated articles.
Fundamental principles and the role of the parties involved in seizure and sale
Seizure and sale falls within a precise legal framework, orchestrated by players with clearly defined roles. Understanding their respective prerogatives is essential if you are to understand how the procedure works and what is at stake.
Definition and objectives of the seizure and sale of movable property
Based on the creditor's general right of pledge over the debtor's assets, as defined by article 2285 of the Civil Code, attachment for sale has a dual purpose. On the one hand, it has a conservatory purpose, which consists of making the assets unavailable in order to guarantee the creditor. On the other hand, it has a payment purpose, which involves the forced sale of the assets to settle the debt. This is one of the main movable enforcement measuresThis is often perceived by the debtor as strong pressure to find an amicable solution to settle the amount owed.
Role and responsibilities of the judicial commissioner
The judicial commissioner, formerly a bailiff, has a monopoly on the implementation of seizures for sale, in accordance with article L. 122-1 of the Code of Civil Enforcement Procedures. As the person responsible for ordering enforcement, he or she must provide assistance unless the measure is illegal. He is responsible on several levels: he ensures that the acts are in order and that the costs incurred remain proportionate to the amount of the debt. Any seizure deemed abusive or carried out in an irregular manner may give rise to professional liability and penalties.
Intervention of the enforcement judge (JEX) and his powers
The enforcement judge (JEX) is the guarantor of the legality of seizure procedures. He is responsible for settle disputes which may arise at each stage, whether concerning the validity of the title, the seizability of an asset or the regularity of the operations. The court commissioner may refer any difficulties to the JEX, and the debtor may contact the JEX to contest the measure. The JEX has extensive investigative powers to verify the exact composition of the debtor's assets.
Subjective conditions of seizure for sale: creditor, debtor and third parties
The validity of an attachment for sale depends closely on the legal situation of the persons concerned. The law imposes precise conditions regarding the capacity of the creditor, the status of the debtor and the obligations of the third party holding the goods.
Capacity and representation of the distraining creditor
The creditor initiating the procedure must have full legal capacity. If the creditor is a minor or a protected adult, the seizure is initiated by the creditor's legal representative, in accordance with the provisions of the Civil Code relating to the protection of individuals. The death of the creditor does not put an end to the action; his or her heirs may continue it, provided that they first notify the debtor of the documents justifying their status.
Seizability of debtor's assets and immunity from execution
In principle, all the debtor's assets may be seized. However, there is one notable exception to this principle: immunity from execution, enshrined in article L. 111-1 of the Code of Civil Enforcement Procedures. The State, local authorities and their public establishments benefit from this in order to guarantee the continuity of public services. Similarly, foreign states and their diplomatic missions enjoy immunity under international and European Union law.
Seizure and sale and the debtor's legal status: incapacities and couples
The debtor's personal situation has a direct impact on the procedure. If the debtor is under guardianship, the seizure deeds must be served on him and his guardian. The matrimonial property regime is also a determining factor. Under the community property regime, joint assets may be seized for a personal debt owed by only one spouse, pursuant to article 1413 of the Civil Code. However, under the separate property regime, only the debtor's personal assets may be seized, except for household debts where both spouses are jointly and severally liable for the upkeep of the family and the education of each child.
The garnishee: obligations and responsibilities
A seizure may be carried out on assets belonging to the debtor but held by a third party (a tenant, a depositary). This third party holder has an obligation to cooperate with the judicial representative. In accordance with article R. 221-21 of the Code of Civil Enforcement Procedures, they must declare the debtor's assets that they hold and provide any useful information, such as the existence of other seizures. Refusal or misrepresentation may result in the debtor being ordered to pay the debt and damages.
Objective conditions for seizure and sale: assets concerned and nature of the claim
In addition to individuals, the procedure is conditioned by the nature of the assets and the characteristics of the claim. Not all assets can be seized, and not all claims justify compulsory execution.
Types of movable property subject to seizure
Seizure for sale can only involve tangible movable property. A distinction is made between movables by nature (furniture, vehicles), movables by anticipation (standing crops) and immovables by destination (agricultural or hotel equipment attached to a building), which may be seized separately from the building for payment of their price, in accordance with the conditions set out in article L. 112-3 of the Code of Civil Enforcement Procedures.
Assets exempt from seizure and their exceptions
The law, in particular Article R. 112-2 of the Code of Civil Enforcement Procedures, establishes a list of unseizable goods to preserve the debtor's dignity. Clothes, bedding, foodstuffs, pets and work tools required for professional activity are thus protected. A leased vehicle whose purchase option has not been exercised belongs to the lessor and cannot be seized by the lessee's creditors.
Sole trader status (EI) and assigned assets
Since the law of 14 February 2022 came into force, sole traders have been able to separate their business assets from their personal assets. Business creditors can therefore only seize assets that are useful for the business activity. Personal assets are thus protected, barring exceptions provided for in the law, such as fraud or express waiver by the entrepreneur of a specific commitment, the constitution of which must comply with precise formalities.
Seizure and sale of land motor vehicles: specific procedures
A vehicle can be seized by means of a standard seizure and sale procedure or be immobilised by the court commissioner, in particular by means of a boot, as provided for in article L. 223-2 of the Code of Civil Enforcement Procedures. This immobilisation may be an accessory measure to the seizure or an autonomous procedure which, if the debtor does not comply, will lead to the sale of the vehicle.
Debt conditions: certainty, liquidity and payability
To justify an attachment for sale, the claim must be certain (incontestable), liquid (assessable in money) and due (the term for payment has expired). Article L. 111-6 of the same code specifies that a claim is liquid when it can be valued in money according to the elements contained in the court decision. The enforcement order held by the creditor gives rise to a presumption that these conditions have been met, but the debtor may contest them.
The different enforceable titles for seizure and sale
The seizure-sale procedure is subject to the possession of one of the following conditions enforceable titles recognised by article L. 111-3 of the Code of Civil Enforcement Procedures. These are mainly court decisions, notarised deeds bearing the enforcement formula, or titles issued by court commissioners in the event of an unpaid cheque. Each instrument must comply with strict substantive conditions.
Relationship between attachment for sale and insolvency proceedings and over-indebtedness
Seizure for sale, as an individual pursuit, can be paralysed by the opening of collective proceedings to deal with all the debts of a debtor in difficulty.
Seizure and sale of undivided property: strategies and limits
La seizability of undivided property depends on the origin of the claim. Joint-ownership creditors may seize joint property. However, as specified in article 815-17 of the Civil Code, the personal creditors of a single co-owner may not seize his or her share; they must bring about the partition and then act on the property allocated to that co-owner. This provision is of great practical importance.
Impact of insolvency proceedings on seizure and sale
In accordance with article L. 622-21 of the French Commercial Code, the opening of safeguard, reorganisation or liquidation proceedings immediately halts all individual legal proceedings. A seizure and sale initiated before this judgment is therefore suspended. The creditor must declare his claim and will be paid according to the rules of the collective proceedings.
Foreclosure and over-indebtedness of individuals: suspensions and write-offs
For private individuals, all enforcement procedures are suspended and prohibited as soon as the overindebtedness file is accepted by the commission, a provision set out in the French Consumer Code. This suspension protects the debtor while solutions are found. Depending on the outcome of the procedure, debts may be rescheduled or, in the most compromised situations, partially or totally written off, thus wiping out the creditor's claims.
The seizure and sale procedure is technical and its consequences can be serious. If you are faced with such a situation, as a creditor or debtor, our law firm can help you analyse your situation and defend your rights.
Frequently asked questions
What triggers a seizure and sale procedure?
The procedure begins with a summons to pay, an act that constitutes formal notice. The summons is served by a court commissioner on the basis of a writ of execution. If the debtor fails to pay within eight days, the commissioner may draw up an inventory and seize the assets.
Can the court commissioner seize all my personal property?
No, the law protects property deemed essential to everyday life and work, including pets. This includes clothing, bedding, kitchen utensils, heating appliances and the tools of your trade. Each item is listed in the Code of Civil Procedure.
My property is with a friend. Can it be seized?
Yes, the seizure may relate to the debtor's assets, even if they are held by a third party. However, the judicial representative must follow a specific procedure and may need authorisation from the enforcement judge to enter the home of the third party, who must then provide all relevant information about the assets.
I'm married. Are my spouse's assets at risk?
This depends on your matrimonial property regime and the origin of the debt. For a personal debt, if you are married with separate property, only your own property can be seized. Under the community property regime, joint property can be seized. This last point is a provision of public policy.
Can the forced sale of goods be stopped once the seizure has taken place?
Yes, the debtor can stop the proceedings by paying the debt and costs in full. The debtor also has one month from the date of the seizure to sell the seized assets out of court, with the agreement of the creditor, in order to obtain a better sale price and avoid a public auction.
How can I contest a seizure and sale?
Any dispute must be brought before the enforcement judge (JEX). The grounds for contesting the seizure may be varied: irregularity of the writ of execution, the unseizability of an asset, or a procedural error in the seizure operations, such as a defect in the seizure report.
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