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When a creditor wishes to recover a debt, seizing assets placed in a safe is an option. This particular procedure requires mastery of specific rules if it is to be carried out correctly. For a in-depth legal expertise and tailor-made support in enforcement mattersIt is advisable to consult a specialist.
Introduction to the safe entry procedure
For a complete overview of the procedure for seizing assets in a safe and the issues involvedThis article explores the specific features of this approach. The seizure of assets contained in a safe is subject to a special legal regime, codified in articles R.224-1 et seq. of the Code of Civil Enforcement Procedures. This procedure, which is rarely used but is highly effective, enables a creditor in possession of a writ of execution to gain access to valuable assets that the debtor could have kept safe.
This method of enforcement is distinguished by its technical nature and the procedural precautions that surround it.
Fundamental distinction: home safe deposit box vs. third-party safe deposit box
The location of the safe determines the applicable procedure.
When the safe belongs to the debtor and is located at his home, the classic seizure for sale procedure applies (articles L.221-1 and R.221-1 of the Code of Civil Enforcement Procedures). The safe itself may be seized if it is not incorporated into the building.
Please note: for non-maintenance claims of less than €535, authorisation from the enforcement judge will be required if seizure of a bank account or wages is not possible.
However, when the safe belongs to a third party (typically a bank), the specific provisions of articles R.224-1 et seq. of the Code of Civil Enforcement Procedures apply. In this case, the safe deposit box contract is qualified by case law as a "custody contract" (Civ. 1re, 2 June 1993, no. 91-10.971), with the bank having a strict monitoring obligation. To find out more about the legal nature of the contract and the obligations arising from itSee our article.
Service of a bailiff's document on a third party
Mandatory information in the deed
The bailiff serves a deed on the third party holder of the safe deposit box. This document must contain, under penalty of nullity :
- Precise identification of the debtor (name and address in the case of a natural person, name and registered office in the case of a legal entity)
- The reference to the title under which the seizure is made
- An injunction prohibiting all access to the safe, except in the presence of the bailiff.
These formalities, required by article R.224-1 of the Code of Civil Enforcement Procedures, leave nothing to be desired.
Obligations of the third party holder
The third party, usually a bank, must provide the bailiff with the identification of the debtor's safe-deposit box. This obligation precludes the banker from invoking professional secrecy (article 226-13 of the Criminal Code).
This is an application of the general obligation incumbent on third parties not to obstruct enforcement procedures (article L.123-1 of the Code of Civil Enforcement Procedures).
Failure to comply with this obligation may give rise to civil liability on the part of the third party.
Ban on access to the safe
Practical details
As soon as the writ is served, the debtor can no longer access his safe without the presence of the bailiff. This protective measure guarantees the effectiveness of the seizure by preventing any misappropriation of assets.
Third party liability
The owner of the safe-deposit box (bank, jeweller, hotel) would incur civil liability if he allowed the debtor free access to his safe-deposit box after having received an injunction to prohibit access.
Case law holds that the bank has an obligation of result in the supervision of safe deposit boxes (Civ. 1re, 29 March 1989, no. 87-17.262). It can only be released from this obligation by proving force majeure or the fault of the victim (Com. 15 Jan. 1985, no. 83-12.226).
Affixing seals
Article R.224-2 of the Code of Civil Enforcement Procedures provides that the bailiff may affix seals to the safe. This measure is useful if there are doubts about the reliability of the parties involved or if there is a risk of access being attempted without the bailiff being present.
Practical experience shows that this option is rarely used in the banking context, but may be appropriate for safes in other locations (luxury hotels, second homes).
Once the precautionary measures have been put in place, the seizure procedure can continue. The seizure and sale of assets in a safe deposit box is one of the most common forms of forced seizure, involving the opening of a safe and the sale of goods. Another procedure, the input-apprehensionThe aim is to recover a specific item of movable property.
Sources
- Code of civil enforcement procedures, articles L.221-1, R.221-1, L.222-1, R.224-1 to R.224-12
- Criminal Code, article 226-13
- Cour de cassation, 1st Civil Chamber, 2 June 1993, no. 91-10.971, RTD civ. 1994, p. 389, Zenati observ.
- Court of Cassation, 1st Civil Division, 29 March 1989, No. 87-17.262
- Court of Cassation, Commercial Division, 15 January 1985, No. 83-12.226
- Court of Cassation, 1st Civil Division, 15 November 1988, No. 87-10.263
- FRICERO Natalie, "Saisie des biens placés dans un coffre-fort", Répertoire de procédure civile, Dalloz, March 2015
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