Attachment is a debt collection procedure that is often perceived as a direct mechanism: a creditor, armed with a writ of execution, seizes the sums owed to his debtor by a third party. However, this apparent simplicity masks highly complex legal situations. What happens when the original creditor or debtor is no longer the same, following an assignment of a claim, a succession or a company merger? How do you act if your debtor, through negligence, fails to collect his own debts, thereby indirectly blocking yours? These scenarios, far from being rare, require in-depth technical expertise in enforcement law to ensure that everyone's rights are protected.
The principle of the relativity of attachment proceedings
Before exploring these complex situations, it is essential to master the fundamental principle of seizure of assetswhich is based on the concept of a personal claim. Enforcement measures can only be taken by the creditor named in the writ of execution, and only against the debtor named therein. This direct and personal link is the cornerstone of the procedure. In practical terms, this means that a creditor cannot seize the bank account of a subsidiary company for a debt contracted by the parent company, nor those of a spouse for a purely personal debt of the other spouse. This principle of relativity guarantees individual liability and protects third parties from lawsuits that do not concern them personally. However, this rule is subject to significant changes when ownership of the claim or debt is transferred.
Attachment for the benefit of the creditor's successors in title
A "successor in title" is a person who has acquired a right or obligation from another person, known as the "originator". In the context of debt collection, the creditor's successor in title is the person who takes the place of the original creditor and may, under certain conditions, exercise the rights attached to the debt. One of the major challenges for the successor in title is to be able to take advantage of the transmission of the enforcement order initially obtained by the original creditor. The law makes a distinction according to the nature of the transfer of assets.
Successors in title: assignment and subrogation
The transfer of a claim may result from an assignment, i.e. a sale of the claim, or from subrogation, a mechanism whereby a person who pays someone else's debt is vested with the creditor's rights. In both these cases, the assignee or subrogated party becomes the new creditor and can use the enforcement order obtained by its author to levy an attachment order. However, a formal condition is imperative for this attachment to be valid: the transfer of the claim must have been made effective against the debtor. Since the 2016 reform of the law of obligations (Order of 10 February 2016, which came into force on 1 October of the same year), article 1324 of the Civil Code provides that the debtor must be notified of the assignment by a judicial officer (huissier de justice) or that the debtor must have acknowledged the assignment in a notarial deed. Without this formality of notification, the debtor could legitimately refuse to pay the new creditor, and a seizure would be deemed irregular.
Universal or universal successors: inheritance and mergers/divestments
The situation is different in the case of a universal transfer of assets and liabilities, which typically occurs on the death of an individual (succession) or when companies are restructured (merger, demerger). In these cases, the successor (heir, acquiring company) receives all the assets of the deceased, including debts and receivables. The transfer takes place ipso jure. The heir or the acquiring company can therefore rely directly on the writ of execution held by the deceased or the acquired company to initiate a distraint order, without having to complete any specific notification formalities relating to the transfer of the debt itself.
Attachment against the debtor's successors in title
The same reasoning applies when the debtor changes. The creditor can pursue recovery of his claim against those who have inherited the assets of his original debtor. In the event of death, seizure is possible against the heirs who have accepted the estate. Article 877 of the Civil Code strictly regulates this possibility: the creditor must first serve the writ of execution on the heirs and observe a period of eight days before being able to levy the seizure. The purpose of this rule is to give the heirs time to think and organise their affairs. In the event of a company merger or demerger, the creditor may take direct action against the absorbing company or the company benefiting from the demerger. Unlike in the case of heirs, the law does not provide for a specific waiting period, so the seizure can be initiated as soon as the restructuring operation is legally effective, without the need for an additional court decision.
Attachment and joint and several obligations: a strict relativity of the writ of execution
Solidarity is a legal mechanism whereby several debtors are liable for the entirety of the same debt. The creditor can then demand full payment from any of them. One might think that a writ of execution obtained against only one of the joint and several debtors would enable the assets of all the others to be seized. However, the Court of Cassation has consistently adopted a very strict position that protects the rights of the defence. It has consistently ruled that a writ of execution only has effect against those who are expressly ordered to pay it. Thus, a judgment obtained against a company (see for example Cass. 2e civ., 15 October 2015) does not allow a seizure to be made on the personal account of a partner, even if the latter is jointly and severally liable for the company's debts. Similarly, a title against one spouse cannot form the basis of a seizure against his or her spouse, including for a household debt for which they are jointly and severally liable under article 220 of the Civil Code (a position confirmed by a Court ruling in April 2018). Attempting to extend a seizure to a co-debtor not covered by the writ of execution may, in certain circumstances, be akin to abusive practices. To seize another co-debtor, the creditor must obtain a separate writ of execution.
Oblique action: an attachment by ricochet against the negligent debtor
What can be done when a creditor comes up against the inertia of his own debtor, who fails to collect the sums owed to him? Article 1341-1 of the Civil Code offers a solution: the oblique action. This oblique mechanism enables a creditor to exercise the rights and actions of its defaulting and negligent debtor. Let's imagine that A is a creditor of B, and that B is itself a creditor of C. If B neglects to claim what is due from C, thereby jeopardising A's chances of being paid, A can take oblique action against C, "on behalf of B". However, the oblique action applied to attachment for payment is a complex and indirect oblique procedure. The result of the action is not the direct payment of creditor A. The funds seized from C first enter the assets of the negligent debtor B. It is only once the amount of these funds has been credited to B's account that creditor A will be able, in a second stage, to levy a "classic" attachment on this account to finally obtain payment. This two-stage procedure, which is the hallmark of the oblique action, is often cumbersome and requires perfect knowledge of the debtor's own writ of execution, which explains why oblique actions are so rare in practice. The success of such an oblique action presupposes perfect knowledge of the negligent debtor's writ of execution. The use of the oblique action therefore remains a textbook case.
Key distinction: oblique action vs. direct action
It is essential not to confuse the oblique action with the direct action. Unlike the oblique action, the direct action, when provided for by a specific statute (for example, in favour of the subcontractor against the headmaster in the context of an employment contract), enables the creditor to obtain payment directly from the third party debtor, without the funds passing through the debtor's own assets. The money goes directly from C to A. This direct payment confers on the creditor a form of privilege, as the sums recovered are not subject to the action of B's other creditors. In contrast, the oblique action does not create any preferential right or special guarantee: once the funds have been reintegrated into B's assets, they can be seized by any of B's other creditors.
Challenging and securing complex distraint operations
The complexity of these mechanisms opens the door to numerous disputes. A seized debtor may raise the irregularity of an attachment for payment based on a writ of execution that does not apply to him personally, on an assignment of claim that was not served on the correct date, or even levied against an heir without complying with the eight-day time limit set out in article 877 of the Civil Code. These complex cases give rise to specific arguments for contesting irregularities (disputing the date of service, disputing the amount claimed, etc.). The enforcement judge (JEX), who is often called upon in Paris for large-scale cases, has sole jurisdiction to settle these disputes. A well-founded challenge may result in the seizure being lifted and damages awarded for the loss suffered. The complexity of these seizure-attribution mechanisms requires expert analysis to secure your rights or challenge an irregular procedure. When faced with such a situation, our law firm specialising in debt collection will help you define the most appropriate strategy.
Mastery of these specific situations is essential if you are to successfully conclude or contest an attachment procedure. For an in-depth analysis of your case and a tailor-made strategy, do not hesitate to contact our law firm. We can give you an initial opinion and a plan of action. For more information, please do not hesitate to contact us.
Reference sources and case law
- Code of civil enforcement procedures (in particular articles L. 211-1 and R. 211-1)
- Civil Code (in particular art. 1324 on assignment of claims and art. 1341-1 on derivative actions)
- Case law of the Court of Cassation (Cass. Civ. 2e) on the relativity of the writ of execution
- Doctrine and thesis on enforcement procedures (e.g. Dalloz Action, LGDJ)
- Articles in specialist journals (e.g. RTD civ.)
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