When letters go unanswered and your debtor ignores your requests for payment, the bailiff becomes your indispensable ally. This legal professional has essential prerogatives for recovering sums owed. But how exactly does he act in seizure proceedings and what are the limits of his power? This article looks at his status and duties.
The bailiff's scope of intervention
Judicial officers play a central role in civil enforcement proceedings. As the creditor's agent, he is never the creditor's servant and assumes sole responsibility for acts carried out in the exercise of his duties.
Representation by the bailiff
The bailiff's primary mission is to assist and represent his client in the recovery of debts. Since law no. 87-550 of 16 July 1987, he can represent parties before the commercial court.
On the other hand, its capacity for representation is severely limited:
- He may not represent the parties before the district court (article 828 of the Code of Civil Procedure).
- He may not represent the parties before the enforcement judge (article R.121-7 of the Code of Civil Enforcement Procedures).
There is an exception in the case of attachment of earnings, where Article L.3252-11, 2° of the French Labour Code authorises him to represent his client.
The intervention monopoly and its limits
Article L.122-1 of the Code of Civil Enforcement Procedures gives bailiffs a monopoly on:
- Compulsory execution
- Attachments
This monopoly means that only the bailiff can serve the writ of attachment, as a sworn clerk is not authorised to do so, as the case law has pointed out (Civ. 2e, 28 June 2006, no. 04-17.514).
There are exceptions for certain public employees:
- Authorised tax officials
- Customs employees
- Forest wardens for forestry offences
The obligation to intervene
The monopoly granted to bailiffs is accompanied by an obligation to intervene. Article L.122-1, paragraph 2 of the Code of Civil Enforcement Procedures states that bailiffs "are obliged to lend their ministry or assistance".
However, there are four possible reasons for refusing to intervene:
- The measure is unlawful
- Costs are likely to exceed the amount of the claim (except for symbolic awards)
- The existence of family or marriage ties (article 1 bis A of the Order of 2 November 1945)
- A legitimate impediment
Intervention conditions
Missions and criminal protection
According to article L.122-2 of the French Code of Civil Enforcement Procedures, the bailiff is "responsible for the conduct of enforcement operations". He coordinates the entire procedure, from the initial notification to the eventual sale of the seized assets.
His position enjoys enhanced protection under criminal law:
- Violence or resistance to its authority constitutes an offence of rebellion (article 433-6 of the French Penal Code).
- Insults are punishable under article 433-5 of the French Penal Code
Specific powers
Bailiffs have special prerogatives that distinguish them from other legal professionals.
Search for information
Since the Act of 22 December 2010, bailiffs have been able to obtain certain information directly:
- The debtor's address
- The identity and address of your employer
- Bank accounts opened in his name
Article L.152-1 of the French Code of Civil Enforcement Procedures specifies that government departments and public bodies may not refuse to provide this information on the grounds of professional secrecy.
Home access
The bailiff may enter the debtor's home after a summons to pay has remained without effect for eight days (article L.142-3 of the Code of Civil Enforcement Procedures).
Article L.142-1 provides strict guarantees in the event that access is refused or denied:
- The mayor or his delegate, a police officer or two witnesses of legal age must be present.
- Obligation to secure the premises if the debtor is absent
The opening of furniture is subject to the same conditions.
These powers reveal a delicate balance between the effectiveness of procedures and the protection of the home.
Referral to the enforcement judge
If difficulties arise during enforcement, the bailiff may refer the matter to the enforcement judge under a simplified procedure (article R.151-1 of the Code of Civil Enforcement Procedures):
- By written declaration to the registry
- With presentation of the title and explanation of the difficulty encountered
- Informing the parties concerned of the date and place of the hearing
This enables it to quickly resolve any obstacles encountered, without suspending the procedure.
The bailiff's professional liability
Bailiffs are liable for faults committed in the performance of their duties. The National Chamber of Bailiffs guarantees this professional liability.
The enforcement judge hears "claims for compensation based on the harmful execution or non-execution of enforcement measures or precautionary measures" (article L.213-6, paragraph 4 of the Code of Judicial Organisation).
Case law has held a bailiff liable for seizing the home of the parents of a debtor who had not lived there for twenty years (Com. 1 February 1994).
Changing status: towards the profession of commissaire de justice
1 July 2022 marked a major turning point with the merger of bailiffs and auctioneers into the single profession of commissaire de justice (Order no. 2016-728 of 2 June 2016).
This reform preserves the bailiff's essential prerogatives in enforcement matters:
- Enforcing court rulings
- Execute enforceable deeds or titles
- Implementing the simplified small claims recovery procedure
These changes are designed to modernise the profession while preserving its fundamental role in the enforcement of legal decisions.
If your amicable collection attempts fail, consulting a bailiff may be a good idea. Law firms regularly work with these professionals and can direct you to a competent bailiff while coordinating the necessary legal action.
Sources
- Code of civil enforcement procedures, articles L.122-1, L.122-2, L.142-1, L.142-3, L.152-1, R.121-7, R.151-1
- Code of Judicial Organisation, article L.213-6
- French Labour Code, article L.3252-11
- Criminal Code, articles 433-5 and 433-6
- Order no. 2016-728 of 2 June 2016 on the status of judicial commissioner
- Law no. 87-550 of 16 July 1987
- Law of 22 December 2010 on the enforcement of court decisions
- Court of Cassation, 2nd Civil Chamber, 28 June 2006, no. 04-17.514
- Court of Cassation, Commercial Division, 1 February 1994
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