Seizure is a legal procedure that enables a creditor to obtain payment of his claim by having his debtor's assets seized. An essential mechanism of enforcement law, it is strictly regulated to balance the rights of the creditor and the protection of the debtor. The aim of this article is to give you an overview of the principles governing seizure in France, clarifying the role of each party involved and the key stages. To navigate these complex procedures effectively, the assistance of an enforcement lawyer is often essential. Each of the aspects covered here is the subject of a more detailed article, so that you can explore the subject in greater depth.
What is a seizure under French law?
Definition and role in enforcement
Seizure is a civil enforcement procedure that authorises a creditor to place the debtor's assets under the control of the courts. The main aim is to make these assets "unavailable", as specified in article L. 141-2 of the Code of Civil Enforcement Procedures (CPCE). In practical terms, the debtor can no longer sell, donate or move the seized assets. This measure represents one of the most direct tools of the right to forced execution, making it possible to force a debtor to meet his financial obligations.
Fundamental distinctions (protective attachment vs. attachment for enforcement)
It is important to distinguish between two broad categories of seizure. On the one hand, precautionary seizures are intended to secure a debt whose recovery appears to be under threat. It is preventive in nature and prepares for possible future enforcement by immobilising one or more of the debtor's assets. It is also a powerful means of pressure to encourage payment. A common form is seizure of a bank accountwhich freezes funds up to the amount of the debt. On the other hand, seizures for the purpose of enforcement are carried out when the creditor already holds a writ of execution. Their purpose is to effect payment directly, either by selling the seized assets or by allocating the sums of money. These include seizure of assetswhich allows a third party (a bank, for example) to pay the sums owed to the debtor, or even attachment of earnings on salary.
Recent legislative reforms and their general impact (law 2019-222, decree 2019-1333, judicial tribunal)
The framework for civil proceedings has been modernised by a number of recent laws, in particular the 2019 Justice Reform Act and its implementing decrees. These reforms have had a significant impact on seizures. One of the major changes is the creation of the Judicial Court, created by the merger of the Tribunal de Grande Instance and the Tribunal d'Instance. This reorganisation centralised certain areas of jurisdiction and sought to simplify the methods used to bring cases before the courts, for example by extending the use of writ of summons with a date.
Subjects of seizure: creditor, debtor and third parties
The distraining creditor: status and powers
To initiate a compulsory enforcement measure, the creditor must be in possession of a writ of execution, i.e. a legal document that officially recognises the debt and allows the creditor to use public force to obtain payment. The claim must be certain, liquid (the amount is fixed or determinable) and due (the due date has passed). Article L. 111-7 of the CPCE gives creditors the freedom to choose the measures they deem most appropriate to ensure that their claim is enforced, whether these be precautionary measures or forced execution.
The seized debtor: status, rights and obligations (focus on the unavailability of assets)
The debtor is the person whose property is seized. The most immediate consequence for him is the unavailability of his assets. This unavailability, set out in article L. 141-2 of the CPCE, prevents the debtor from disposing of the assets seized. In the case of tangible movable property, the debtor is generally appointed custodian. The debtor must preserve the property and may not sell or destroy it, on pain of criminal penalties for misappropriation.
The essential role of third parties (obligation to provide information and the position of the garnishee)
Third parties play a vital role in many attachment procedures. They can be anyone who holds assets on behalf of the debtor or owes him money. This is known as a "garnishee". An employer, a bank or a tenant can take on this role. The law imposes on them an obligation to cooperate and provide information to the court commissioner. For example, a bank that has been seized must declare the balance of the debtor's accounts. Failure to comply with this information obligation exposes the third party to penalties, which may go as far as ordering them to pay the debtor's debt themselves.
Seizure agents: bailiffs and judicial authorities
The judicial commissioner (formerly a bailiff): a central role and a monopoly on intervention
Since 1 July 2022, the profession of judicial officer has merged with that of auctioneer to create the judicial commissioner. This public official is at the heart of seizure procedures. They have a monopoly on enforcement and protective seizures, as set out in article L. 122-1 of the CPCE. Acting as the creditor's agent, he is responsible for conducting the operations and ensuring compliance with the legal rules throughout the procedure. To find out more about his duties, see our article on the role and powers of the Justice Commissioner.
The enforcement judge (JEX): general powers and role in the seizure procedure
The enforcement judge, or JEX, is the judge who specialises in enforcement proceedings. He has exclusive jurisdiction to rule on difficulties relating to enforceable titles and disputes arising during an attachment procedure. This judge may be called upon by the debtor, the creditor or even the court commissioner. The judge's role is to ensure that the enforcement procedure runs smoothly, by striking a balance between the creditor's right to be paid and the protection of the debtor's rights. For more details, read our article on the jurisdiction and powers of the enforcement judge.
The public prosecutor and the police: guarantees of enforcement
Two other authorities ensure that seizures are effective. The public prosecutor generally ensures that court decisions are enforced. More specifically, the police and gendarmerie may be requested by the commissioner of justice to provide assistance, for example if access to a home is refused. The State has an obligation to assist in the enforcement of judgments, and an unjustified refusal may render it liable.
Seizure procedures are a technical area in which each stage is codified. A procedural error can lead to the measure being declared null and void, while improper execution can render the creditor liable. To ensure that your procedures are secure and to defend your rights effectively, you need the services of a lawyer specialised in enforcement is a guarantee of peace of mind and efficiency.
Frequently asked questions
What is an enforcement order?
An enforceable title is an official legal document that allows a creditor to resort to forced execution to obtain payment of his debt. The most common examples are a court decision (judgement, decree) or a notarial deed bearing the executory clause.
What is the main difference between a protective attachment and an attachment for payment?
Attachment is a preventive measure aimed at making an asset unavailable (freezing funds in an account, for example) in order to secure a future debt. Attachment is an enforcement measure that directly transfers the sums of money owed to the debtor to the attaching creditor.
Who is the Justice Commissioner?
The judicial commissioner is the new profession that, since 1 July 2022, has brought together the former bailiffs and auctioneers. They are the only professionals authorised by law to carry out seizure procedures.
What is the role of the enforcement judge (JEX)?
The enforcement judge (JEX) is the judge responsible for settling all disputes and difficulties that arise during the enforcement of a court order, particularly during an attachment procedure. He ensures that the rights of all parties are respected.
Can a third party refuse to cooperate with a seizure?
No, a third party (such as a bank or an employer) that holds assets or funds on behalf of the debtor has a legal obligation to cooperate with the court commissioner and provide the information requested. Refusal or misrepresentation exposes them to penalties.
Can all a debtor's assets be seized?
No, the law protects certain assets considered essential to the debtor's life and work. For example, part of a debtor's salary (the unseizable bank balance), certain items of furniture necessary for everyday life or work tools are declared unseizable.
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