The seizure of a sum of money is a procedure dreaded by debtors and an essential tool for creditors. It enables the creditor, armed with a writ of execution, to obtain payment directly from a third party who owes money to its own debtor, usually a bank. However, French law provides not one, but several distinct procedures, the choice and application of which depend on the type of claim or the status of the parties. This article provides a comparative overview of these complex mechanisms, which are often the source of disputes. The more technical aspects, such as protective attachment, are described in detail in our publications on the subject. A misappraisal of these rules can have major financial consequences, which is why a precise legal analysis is needed to ensure the security of the contract. collecting your debts.
The general legal framework for the seizure of money claims
To understand the diversity of attachment procedures, it is first necessary to understand the common law mechanism that serves as a reference: attachment for payment. This is the most common method of enforcement, and its rules, laid down by law and its implementing decree, have had a profound influence on other procedures.
Fundamental principles of attachment for payment (ordinary law)
Attachment is a procedure whereby a creditor, through the intermediary of a commissioner of justice (formerly a bailiff), compels a third party (the garnishee) by deed to pay him the sums that the latter owes to his debtor (the garnishee debtor). This is of considerable practical importance, particularly in banking matters, where it makes it possible to seize funds available in accounts. Legal writers have long wondered about the legal nature of book moneyHowever, it is now accepted that the object of the seizure is the depositor's claim for restitution against his bank. The major innovation of the Act of 9 July 1991, clarified by decree, lies in the effect of immediate attribution As soon as the seizure is carried out, the claim is transferred from the debtor's assets to the seizing creditor, in accordance with this legal provision. This immediate transfer, which came into force with this reform, protects the creditor against the involvement of other creditors or the opening of collective legal proceedings against the debtor.
The transfer order and its irrevocability
The credit transfer is now the main instrument for transferring funds. Understanding its mechanics is essential, as it interferes with seizure procedures. Once a transfer order has been received by the originator's payment service provider, it becomes irrevocable under article L. 133-8 of the French Monetary and Financial Code. This principle, often referred to in case law, has a direct impact on the effectiveness of an attachment. An attachment made on the originator's account after the transfer order has become irrevocable but before the funds have been credited to the recipient raises complex questions about the fate of funds in transit, a subject that is the subject of much debate in the legal literature.
Inventory and distinction of seizure procedures
In addition to the attachment for payment procedure under ordinary law, the legislator has introduced special procedures, justified by the particular nature of the debt to be recovered or the debt attached. This diversity requires a comparative analysis to determine the most appropriate tool and provide an adequate response to each situation.
A typology of five main procedures
French law on enforcement of monetary claims is based on five distinct procedures. Attachment for payment (articles L. 211-1 et seq. of the Code of Civil Enforcement Procedures, specified by decree) is the standard procedure. It is accompanied by four exceptional procedures:
- Attachment of earnings, or attachment of wages, governed by the French Labour Code.
- The procedure for requesting direct payment of maintenance, a specific provision for family claims.
- Administrative seizure by third parties (SATD), which replaces the former notice to third parties, used by the tax authorities and other public creditors such as the Treasury.
- Opposition à tiers détenteur, used by social security bodies to recover unpaid social security contributions or benefits.
Distinctive and specific criteria
The distinction between these procedures is based on their cause or purpose. Direct payment, SATD and opposition à tiers détenteur are characterised by the nature of the debt to be recovered (alimony, tax, social security, e.g. unduly paid aid). Attachment of earnings, on the other hand, is defined by the nature of the debt attached (salary or any other remuneration). Another fundamental difference is the attributive effect. Whereas attachment for payment, SATD and direct payment provide for immediate allocation to the creditor, attachment of remuneration is based on a system of distribution and competition between several creditors, managed by a court-appointed apportionment commissioner, without immediate allocation, so as not to suddenly deprive the debtor of all his resources. Each attachment procedure is therefore unique.
Specific issues relating to the seizure of bank debts
Attachment of bank accounts is the most widespread form of attachment. It raises problems of its own, linked to the debtor's marital status, the multiplicity of his accounts or the nature of the funds in transit. It is therefore of great interest to understand the mechanisms involved.
Impact of seizure on couples' accounts
The legal status of the couple has a direct impact on the extent of the assets that can be seized. For cohabitees, the principle is separation of assets. For PACS partners and spouses, there is joint and several liability for everyday debts (in accordance with articles 515-4 and 220 of the Civil Code). However, this does not apply to loans, unless they are for "modest sums necessary for day-to-day living". The case law of the Cour de cassation assesses this notion on a case-by-case basis, without any fixed threshold, by comparing the amount of credit with the household's standard of living and ability to repay. For example, a loan of €65,500 was deemed not to be modest for a couple with a monthly income of €3,607. Under the joint property regime, article 1415 of the Civil Code protects joint property against loans and guarantees taken out by only one spouse without the express consent of the other.
Multiple bank accounts and security interests
A debtor may hold several accounts. If a unit of account agreement has been signed, the balances are merged into a single balance which will form the basis for the seizure. In the absence of such an agreement, the accounts are in principle independent, although the banker may invoke set-off. In addition, securities such as account pledges or cash pledges can be put in place by a banking company, creating a preferential right for the creditor bank, the effectiveness of which is particularly scrutinised in the event of insolvency proceedings.
Seizable balance and unseizable funds
The seizure cannot cover all the sums in an account. The banker is obliged to leave the debtor a sum equivalent to the flat-rate amount of the Revenu de Solidarité Active (RSA): this is the mechanism of the non-seizable bank balance (SBI). The law provides for this protection in order to guarantee a minimum standard of living. In addition, certain claims, by their nature (benefits, housing assistance, pensions), are declared unseizable. If such sums are paid into the account, their unseizability is transferred to the account, provided that the debtor can justify their origin within the time limit for contesting the claim. Maintaining the SBI is a legal obligation for the bank.
The various procedures for seizing debts constitute a complex arsenal, but one that is essential to the legal certainty of transactions. Choosing the most appropriate procedure and managing the many possible incidents, such as a dispute, requires detailed analysis. We can help you with your debt collection and enforcement procedures, our expertise in enforcement is at your disposal.
Frequently asked questions
What is attachment for payment?
Attachment is a compulsory execution procedure that allows a creditor with a writ of execution to seize sums of money owed by a third party (usually a bank) to its debtor, via a commissioner of justice (formerly a bailiff). Its main advantage is the immediate attribution of the claim to the creditor, in accordance with the law of 9 July 1991 and its implementing decree. This mechanism is the most common.
What are the main procedures for seizing debts in France?
There are five main types of attachment: attachment for payment (ordinary law), attachment of remuneration, administrative attachment by a third party holder (SATD) for public debts, direct payment of maintenance and opposition by a third party holder for social security debts. Each has rules laid down by law or decree, and the choice depends on the nature of the debt to be recovered.
What is the unseizable bank balance (UBS)?
The non-attachable bank balance (SBI) is a sum that the bank is obliged to leave in the account of the individual debtor following an attachment. The amount, set by decree, is a lump sum equivalent to the Revenu de Solidarité Active (RSA) for a single person, in order to guarantee a minimum standard of living. This information is crucial for the debtor.
Can a joint account be seized?
Yes, a joint account can be seized, even if only one of the joint holders is the debtor. In principle, the seizure extends to the entire balance, but the non-debtor co-holder can contest the measure before the judge within one month of receiving the seizure notice, by proving that the seized funds belong to him or her alone.
What is the role of the Enforcement Judge (JEX)?
The Enforcement Judge (JEX) is the judge with jurisdiction to rule on all difficulties and disputes that arise during enforcement proceedings. He rules on the validity of the seizure, the amounts that can be seized, applications for release and may impose penalty payments. A court order issued by him is enforceable.
Is the bank liable in the event of a fraudulent transfer?
The bank, whether a private or public company, may be held liable in the event of a fraudulent transfer, particularly if it has not put in place the required security measures. However, liability is often waived if the bank can prove that the customer was 'grossly negligent', for example by disclosing his or her identification details, which could result in significant financial loss, or even criminal prosecution in the case of complicity.
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