Attachment of successively enforceable claims

The seizure-attribution of successively enforceable debts is a particularly powerful common law collection procedure, the implementation of which is governed by the Code of Civil Enforcement Procedures (C. pr. exéc.). It enables creditors to seize recurring payments due to their debtors, such as rent, annuities or contract instalments. Its effectiveness, recognised in the national legal environment and observed in the European context, is based on an immediate attributive effect that extends over time. This article provides an overview of this mechanism, the general principles of which are detailed in our guide on how attachment works. More specific aspects, such as disputes or the impact of insolvency proceedings, are also dealt with in dedicated articles.

What is a claim for successive performance?

To understand this form of seizure, we must first define its purpose. A claim for successive performance is a debt whose payment is staggered over time, under a single contract. Unlike a debt payable in a single instalment, it gives rise to periodic payments.

The most common examples of successively enforceable claims include :

• Rent due under a lease agreement.
• Management lease fees.
• Life annuities.
• The due dates of a loan contract.
• Recurring fees under a framework contract, such as those paid by a medical laboratory to an associate biologist under their practice contract.

Case law, in particular a ruling by the Court of Cassation (Civ. 2e, 14 April 2022, no. 20-21.461, published in the Bulletin), has confirmed that sums paid under a single contract but in instalments do indeed constitute a claim for successive performance, paving the way for this type of attachment.

The principle of levy of execution applied to these claims

The seizure-attribution procedure for successive debts follows the ordinary law of civil enforcement procedures (C. pr. exéc.), but with an essential particularity concerning its effect over time. To use this procedure, the creditor must, as with any seizure, be in possession of a writ of execution recording a liquid and due debt.

Immediate attributive effect extended to future maturities

The main advantage of this attachment-attribution procedure is its immediate attributive effect, as set out in article L. 211-2 of the Code of Civil Enforcement Procedures (C. pr. exéc.). As soon as the seizure deed is served on the third party (the tenant, for example), the seizing creditor becomes the owner of the debt. The special feature here is that this attribution is not limited to sums that have already fallen due. It extends to all future instalments until the debt is paid in full.

In other words, a single act of seizure is sufficient to capture all future payments. The creditor does not need to repeat the procedure at each due date. This provision, enshrined in a decision by the judicial authorities (Cass., ch. mixte, 22 Nov. 2002, published in the Bulletin officiel), lends formidable security and effectiveness to this enforcement measure, including in an international environment.

The implementation procedure

There are several key stages in the implementation of a sequentially enforceable seizure of receivables, one of which is orchestrated by a judicial commissioner (formerly a bailiff).

1. The act of seizure : The court commissioner serves a writ of attachment on the garnishee (the person who owes the payments, such as the tenant). This deed, the content of which is strictly regulated by the Code of Civil Procedure (C. pr. exéc.), makes the debt unavailable in his hands.
2. Notice to the debtor : The seizure must be notified to the debtor within eight days, failing which it will lapse. This document must inform the debtor of the measure and of the one-month period within which he or she may contest it.
3. Payment: If the attachment is not contested, the garnishee must pay the creditor the sums as and when they fall due. Each payment discharges the garnishee of its obligation to the seized debtor. The effects of this procedure and possible challenges to an attachment order are central points of this mechanism, governed by a precise legal standard.

When does the seizure of payments end?

The seizure and sale of successively enforced debts is not eternal. Payments to the distraining creditor cease in two main situations, as set out in article R. 211-17 of the Code of Civil Enforcement Procedures (C. pr. exéc.).

Extinction of the creditor's debt

The attachment ends when the debtor's debt to the creditor is repaid in full. Once the total amount of the debt (principal, interest and costs) has been collected, the creditor must notify the garnishee in writing by registered letter with acknowledgement of receipt that the payment obligation has ended. The third party must then resume payments to its original creditor, the distrainee debtor.

Extinction of the debtor's claim on the third party

Conversely, seizure stops if the debt subject to seizure is extinguished. This is the case, for example, at the end of a lease. As the tenant no longer owes any rent, there are no longer any financial flows to seize. In this situation, where no further payments are due, it is up to the garnishee to inform the creditor that its obligation has ended.

The special case of collective proceedings

A complex legal issue arises when an attachment order has been issued against a debtor prior to the opening of collective proceedings (safeguard, receivership or compulsory liquidation). Does the seizure continue to have effect on instalments due after the opening judgment?

The case law of the Cour de cassation is clear on this point, and has been since a seminal decision. A judgment of the Mixed Chamber of 22 November 2002 (published in the Bulletin officiel) held that the seizure by way of execution of a debt enforceable in succession, validly effected before the opening judgment, continues to have effect in respect of sums due after that judgment. The immediate attributive effect has removed the claim (including its future terms) from the debtor's assets prior to the opening of the collective proceedings. The seizing creditor is therefore not subject to the discipline of the individual stay of proceedings in respect of these sums, which constitutes a major exception to the ordinary law of collective proceedings. The implications of an attachment for payment in the event of insolvency proceedings are a major issue, because they derogate from the principle of equality between creditors, a principle that is at the heart of national and European legal policy.

This compulsory enforcement measure is a first-rate legal and strategic tool for recovering recurring debts, including in an international or European environment. Its implementation requires a perfect command of the provisions of the Code of Civil Enforcement Procedures (C. pr. exéc.) and the associated case law. To secure your rights, whether you are a creditor or a debtor, the assistance of a lawyer responsible for seizure of assets is an essential precaution. Don't hesitate to contact us for a personalised analysis of your business.

Frequently asked questions

What is a claim for successive performance?

This is a debt that arises from a single contract but whose payment is staggered over time, in periodic instalments. Rents, annuities or monthly loan payments are typical examples.

Can a tenant's future rent be seized?

Yes, the seizure-attribution of successively enforceable debts makes it possible to seize, in a single act, not only rents already due but also all rents that will fall due until the creditor's debt is extinguished.

What is the main advantage of this seizure procedure?

Its major advantage is its immediate effect, which extends to future instalments. A single act of seizure is all that is needed to guarantee continued payment of the debt over a long period, without having to repeat the procedure, an efficiency recognised in French law and observed in the context of the European Union.

Does the seizure stop if the debtor is placed in receivership?

No. If the seizure was validly carried out before the judgment opening the insolvency proceedings, it continues to produce its effects on the instalments of the debt that become due after the judgment. This rule is a notable exception to the principle of a stay of proceedings in insolvency proceedings.

Who pays whom when rents are seized?

The tenant (the garnishee) no longer pays rent to the landlord (the debtor), but pays it directly to the landlord's creditor (the distraining creditor), until the landlord's debt is repaid in full.

Do I still need a writ of execution for this seizure?

Yes, as with any attachment by way of payment, the creditor must have an enforceable title (a judgment that has the force of res judicata, a notarial deed with the enforcement formula, etc.) establishing a claim that is certain, liquid and due. This is a fundamental condition of the attachment-attribution procedure.

What is the difference with the administrative seizure by third party holder (SATD)?

SATD is a public law procedure used by an administrative authority (tax authority, for example, via a public accountant) to recover its own debts (taxes, fines, etc.). Attachment of receivables is a private law procedure governed by the Code of Civil Procedure (C. pr. exéc.) and open to any private creditor in possession of an enforceable title. The current version of SATD was brought into force by a Supplementary Finance Act, the text of which was published in the Journal Officiel.

Is the unattachable bank balance (UBB) affected?

Yes, even if a bank account is seized, the individual debtor retains the benefit of the non-seizable bank balance (SBI). This is a minimum sum, equivalent to the amount of the RSA for a single person, left at his or her disposal for maintenance needs, in accordance with the law. The account holder does not have to do anything to benefit from this.