Attachment is a technical procedure at the heart of enforcement, an area in which the assistance of a lawyer is essential.enforcement lawyers is often essential to secure the rights of creditors. It enables a person who claims to have a right to tangible movable property held by a third party to prevent its disappearance by making it unavailable, pending its return. Although less well known than seizures for the payment of money, it is nonetheless a powerful legal tool. The aim of this article is to provide you with a comprehensive summary of its foundations, the conditions under which it can be implemented and its effects, while directing you to more detailed resources to explore each aspect in greater depth.
Understanding seizure and reclamation: definition and legal basis
Attachment is a protective measure governed by article L. 222-2 and article R. 222-17 et seq. of the Code of Civil Enforcement Procedures (CPCE). Its purpose is not to obtain payment of a debt, but to secure a real right, i.e. a right that relates directly to a thing: right of ownership, usufruct or pledge. In practical terms, its purpose is to place movable property in the hands of the courts to prevent its current owner from selling, moving or concealing it. Although its purpose is to render an asset unavailable, seizure and reclamation is fundamentally different from other precautionary measures in respect of movable tangible propertyThe main purpose of this type of attachment is to secure payment of a monetary claim. This specific form of protective attachment therefore follows its own logic.
Origins and legislative development of the seizure of a claim
A descendant of earlier procedures such as seizure of goods, seizure of claims was modernised by the Act of 9 July 1991 and its implementing decree of 1992. These texts clarified the system before it was incorporated into the Code of Civil Enforcement Procedures in 2012. This codification has made it possible to unify enforcement law and make it more accessible, while maintaining the fundamental principles of this protective measure.
Object and purpose: protection of a right in rem in movable property
The purpose of seizure and reclamation is to preserve a real right in a tangible asset. The holder of such a right, whether a buyer awaiting delivery of his goods, a lessor or a creditor, may fear that the object will disappear. Seizure makes the object unavailable until the creditor's right is definitively recognised by a court decision and restitution can take place.
Seizure-claim vs. seizure-apprehension: an essential distinction
It is crucial to understand the essential distinction between grasping and understandingThis is not a precautionary measure, but rather a means of enforcement aimed at physically handing over the property. Attachment is a preliminary step: it paralyses the property until the creditor obtains an enforceable decision. Seizure-apprehension, on the other hand, takes place once the title has been obtained, to physically force the holder to deliver the property.
Conditions for the opening and validity of the seizure of a claim
The implementation of a seizure and claim is subject to strict conditions, principally the obtaining of a judicial authorisation. This procedure ensures that the measure is not abused and that the rights of the holder are respected.
Prior judicial authorisation: principle and exceptions
In principle, all seizures must be authorised by the enforcement judge (JEX) or, in commercial matters, by the president of the commercial court. The creditor must submit a reasoned application. If the application is granted, the judge will issue an order specifying the property concerned. This authorisation is then enforceable against any holder of the designated asset. However, article L. 511-2 of the CPCE exempts from this authorisation creditors who already have a title ordering restitution or a court decision that is not yet final.
Proof of the apparent right to delivery or return of the goods
The claimant does not have to prove irrefutably his right of ownership or his right to restitution. They must simply show that they are apparently justified in requesting the delivery or restitution of the property, i.e. present elements that make their claim likely. The judge does not examine the merits of the claim, but merely checks whether the claim is apparently serious. It is then up to the judge on the merits to make the final decision on the ownership or restitution of the property.
Scope: tangible, fungible movable property and exclusions
The procedure is strictly limited to tangible movable property, which in fact excludes intangible movable property such as company shares, which are subject to specific procedures. It may relate to a definite object (a vehicle identified by its serial number) or to things of a kind (a certain quantity of goods), provided that they are sufficiently individualised. Goods that are incorporated into another asset or fungible (interchangeable) goods can raise significant practical difficulties, which judicial case law has attempted to resolve on a case-by-case basis.
Holders of the right of action: diversity of creditors and assignees
Standing to sue is often linked to a right in rem arising from the securities lawThis is the case for the creditor-gagist or the beneficiary of a retention of title clause. Many people can make use of this system: a buyer who has paid for a good but has not received delivery, a lender or lessor who wants the equipment returned, or a depositor who does not obtain the return of his goods after the end of the contract.
The enforcement procedure and the effects of seizure and reclamation
Once the judge's authorisation has been obtained, implementation is entrusted to a court commissioner. This phase is crucial because it gives concrete form to the protective measures and imposes specific obligations on the person holding the property.
Place and method of enforcement: an 'in rem' measure
Attachment is characterised by its "in rem" nature, i.e. it is attached to the property itself. The court-appointed agent may therefore seize the property at any place where it is located and from any person holding it. If the property is located in a dwelling belonging to a third party, however, special authorisation from the judge is required to enter.
The seizure procedure: formalities and compulsory information
The court commissioner draws up an official document, the seizure deed, which details the property concerned and mentions the title authorising the measure. The formalities of the deed are strict and must include all mandatory information, failing which it will be null and void; its purpose is to inform the holder of his or her obligations, in the same way as the deed of seizure.other protective attachments such as those relating to receivablesalthough the purposes are different. In particular, he must inform the debtor of his obligation to declare any previous seizure of the same property. The document is then served on the holder and, if the holder is a third party, on the principal debtor.
Immediate effects: unavailability and custody of the seized property
The main and immediate effect of seizure is to render the property unavailable. The holder can no longer sell it, give it away or move it without a legitimate reason. The holder is deemed to be the custodian of the property and is criminally liable for its safekeeping, incurring liability in the event of misappropriation, which is punishable under article 314-6 of the Criminal Code. In certain situations, to guarantee the security of the property, the judge may order it to be handed over to a designated receiver.
Rights and obligations of the third party holder in the event of seizure
The third party in whose hands the seizure is carried out is not without rights. In particular, he can invoke a right of retention if he legitimately holds the property as security for a claim of his own. He must inform the court commissioner of this, and the seizing creditor then has one month to contest this right before the JEX. The third party is liable in the event of a false declaration or failure to comply with its duty of care.
Contesting and releasing a seizure-claim
The person subject to the seizure, whether the debtor or a third party holder, has the right to challenge the measure and request that it be terminated, known as a "release".
Grounds and procedure for releasing the seizure
Release of the seizure may be requested at any time if the conditions for its validity are not met. For example, if the applicant does not prove an apparent right or if the creditor has not initiated proceedings on the merits to obtain an enforceable decision within one month of the seizure. The claim is brought before the court that authorised the measure. If the seizure was carried out without prior authorisation, the enforcement court of the debtor's place of residence has jurisdiction.
Other disputes and the exclusive jurisdiction of the JEX
All other disputes relating to the implementation of a seizure and claim fall within the exclusive jurisdiction of the enforcement judge, in accordance with article L. 213-6 of the Code of Judicial Organisation. This includes material difficulties encountered by the court-appointed agent, but also disputes relating to the substance of the law that are raised in connection with the protective measure.
Effects of a decision to release an attachment claim
If the court orders the release of the seizure, the property ceases to be unavailable from the date of notification of the decision. The holder then regains full freedom to dispose of the property. This notification is provided by the registry, thereby guaranteeing the legal certainty of the operation right up to the last day.
The major obstacles to seizure and reclamation and its procedural interactions
The implementation of a seizure and sale may come up against significant legal obstacles, particularly when the holder of the property is the subject of insolvency proceedings. These situations create complex interactions between different branches of law.
Article 2276 of the Civil Code: possession as title and its limits
A major civil law obstacle is the rule set out in article 2276 of the French Civil Code: "in the case of movable property, possession is equivalent to title". If the possessor is in good faith, he is presumed to be the owner of the property. The claiming creditor will then have to prove the bad faith of the possessor or that the property has been lost or stolen in order to recover it, within three years of the loss or theft.
Attachment and over-indebtedness of individuals: a complex interaction
When an individual is the subject of over-indebtedness proceedings, the admissibility of his or her case in principle results in the suspension of enforcement proceedings against him or her. This suspension is intended to protect the drawing up of a recovery plan or an amicable agreement. However, it applies to proceedings initiated for the payment of debts. Attachment proceedings, which seek the restitution of property and not the payment of a sum of money, are not generally affected. The creditor with a right in rem can therefore, in most cases, continue his action, an important nuance in the protection of the owner's rights.
The impact of insolvency proceedings on seizure of claims
The situation is different when a debtor company is the subject of safeguard, reorganisation or judicial liquidation proceedings. The judgement opening the proceedings suspends or prohibits any legal action or proceedings by previous creditors, in order to preserve the chances of a continuation plan for the company. The holder of a property right must then cease its seizure and reclamation in order to bring a specific action known as an "action en revendication" (or claim), addressed to the judicial representative or liquidator, within a strict period of three months from publication of the opening judgment.
News and reforms affecting seizure and sale: legal watch
The law of civil enforcement procedures is constantly evolving, under the influence of national reforms and the need to harmonise with an increasingly integrated European legal framework. Recent reforms and the creation of the status of judicial commissioner have practical implications for the conduct of seizures.
Impact of the reform of civil procedure (decree no. 2019-1333 and decree no. 2021-1888)
Among other things, the 2019 reform created the judicial tribunal and unified the methods of referral. More recently, the decree of 29 December 2021 modified certain procedures for serving apprehension documents, a phase that often follows the seizure and reclamation. These adjustments, although technical, affect the day-to-day work of practitioners and the conduct of proceedings.
The role of judicial commissioners and diversion from the courts
The merger of the professions of bailiff and auctioneer into the status of judicial commissioner, effective since 1 July 2022, when the reform came into force, has centralised the implementation of decisions. As guarantors of the legality of legal proceedings, these professionals are liable if they commit a fault, for example by failing to check the validity of the title correctly or by making inaccurate statements in their documents.
The role of the enforcement judge (JEX): developments and limitations
The JEX remains the natural judge for enforcement disputes. The JEX's jurisdiction has been extended, particularly in relation to seizures of property. The JEX has the power to interpret the enforceable decision to determine its scope, but cannot under any circumstances modify it or call its principle into question. Its role is to resolve difficulties, ensuring a balance between the effectiveness of the proceedings and the protection of the debtor's rights.
From seizure-claim to seizure-apprehension: conversion into a compulsory execution measure
Seizure is only the first step. To obtain the actual return of the property, the creditor must transform this protective measure into a real enforcement measure, a forced execution of the established right.
The stages of conversion: from precautionary measure to enforceable title
After levying the seizure, the creditor must, within one month, initiate proceedings on the merits to have his claim recognised. If he fails to do so, the seizure lapses. Once the creditor has obtained a judgment or other document ordering restitution, he can move on to the next stage: physical seizure of the property.
Seizure of property under an enforcement order: procedure and specific features
The seizure and attachment process begins with the service of a summons to return the property, as provided for in article R. 222-2 of the CPC. If the holder complies voluntarily, a writ of surrender is drawn up. If the holder refuses, the court commissioner may proceed to seize the property by force. The case law of the Cour de cassation (see e.g. Civ. 2e) has repeatedly reiterated the need for unequivocal title to make this transition.
Seizure of the property on court order: simplified procedure
There is also a simplified procedure based on a petition, which makes it possible to obtain an injunction to deliver or return the property without prior adversarial debate. The order is served on the holder, who has a period in which to oppose it. If the holder lodges an objection, the applicant must bring the matter before the court hearing the case within two months, failing which the order lapses. If no objection is lodged, the order becomes enforceable and the property can be seized.
By its very nature and the way it interacts with other legal systems, the seizure and recovery procedure requires a rigorous analysis and an appropriate strategy. For an in-depth analysis of your situation and tailored advice, please contact our team atenforcement lawyers via our website or by e-mail.
Frequently asked questions
What is the main difference between a seizure-claim and a seizure-apprehension?
Seizure is a protective measure that renders an asset unavailable ("freezing" the asset), while seizure is an enforcement measure that allows the asset to be physically taken and returned to its owner.
Do I still need a judge's authorisation to launch a seizure-revendication?
In principle, yes. Prior authorisation from the enforcement judge is required. There are exceptions, however, particularly if the creditor already has an enforceable decision or a court order that is not yet final ordering restitution.
What type of assets can be subject to seizure?
It can only apply to tangible assets, i.e. physical objects that can be moved (a vehicle with its chassis number, a piece of furniture, etc.). Intangible assets (receivables, shares) and buildings are excluded from its scope.
What happens if the property is in the hands of a third party?
A seizure may be carried out against any holder of the property. The third party is then deemed to be the custodian of the property and must keep it. The third party may, however, assert its own rights over the asset, such as a right of retention.
Do over-indebtedness or collective proceedings stop the seizure of a claim?
Proceedings for over-indebtedness in respect of an individual generally do not suspend the seizure of assets, as they are not aimed at payment of a debt that would be included in the recovery plan. On the other hand, the opening of collective proceedings (safeguard, reorganisation, liquidation) against a company suspends the seizure and obliges the creditor to bring a specific action for recovery.
How long will the property be unavailable?
The assets are unavailable for as long as the seizure has not been discharged (i.e. a court order putting an end to the seizure). However, the creditor must take the necessary steps to obtain a title ordering restitution within one month of the seizure, failing which the measure will lapse.
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