The bank safe deposit box contract: legal aspects and implications for seizures

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Who hasn't wondered about the legal status of a bank safe-deposit box? Far from being a simple rented space, this banking service is subject to a complex legal regime, particularly in the event of seizure by a creditor. Here's how it works.

Legal nature of the safe deposit box contract

The safe deposit box contract provides a customer with a secure space in which to deposit valuables or objects, in return for payment. In a ruling dated 2 June 1993, the Cour de cassation described it as a "custody contract" (Civ. 1re, 2 June 1993, no. 91-10.971, RTD civ. 1994. 389, Zenati obs.).

This is not a deposit contract. The banker is unaware of the contents of the safe deposit box and cannot be considered the owner of the assets deposited there. According to the First Civil Chamber of the Cour de Cassation, it is a "provision of services in return for remuneration" (Civ. 1re, 30 June 2004, no. 01-00.475, Bull. civ. I, no. 190; D. 2005. 1828, note by Mazeaud).

Rental rates are free, as confirmed by case law. This contract is more than a simple rental agreement, as it includes an essential safety dimension.

Obligations of the parties

The banker's duty of supervision

The banking institution has a strict supervisory obligation (Civ. 1st, 15 Nov. 1988, no. 87-10.263). This obligation is qualified as an obligation of result by case law (Civ. 1st, 29 March 1989, no. 87-17.262).

In practice, this means that the bank can only avoid liability by proving that it has done so:

• A force majeure
• Fault on the part of the victim (Com. 15 Jan. 1985, no. 83-12.226)

This strict qualification protects customers but exposes banks to a demanding liability regime. If a safe is broken into, the bank is almost automatically liable.

Procedure for seizing assets placed in a safe deposit box

The location of the safe determines the procedure applicable in the event of seizurebased on fundamental principles:

1. If the safe belongs to the debtor and is at his home: application of the seizure-sale system (C. pr. exéc., art. L. 221-1 et seq. and R. 221-1 et seq.)
2. If the safety deposit box belongs to a third party (bank): application of the specific provisions of articles R. 224-1 et seq. of the Code of Civil Enforcement Procedures.

It should be noted that other types of seizure can also involve assets placed in a safe, such as the input-apprehensiona specific measure aimed at recovering a specific item of movable property.

The seizure procedure begins with the service of a bailiff's document on the third party, which prohibits access to the safe. The bailiff may seal the safe to ensure that it cannot be tampered with.

Order for payment and opening of safe-deposit box

As part of a seizure and sale of safe-deposit box assetsIn the event of a seizure, a summons to pay is served on the debtor on the first working day following the seizure (C. pr. exéc., art. R. 224-3). This summons must contain a number of mandatory details, failing which it is null and void:

• Denunciation of the seizure deed
• The enforcement order
• Statement of amounts claimed
• Order to pay before the date on which the safe is opened
• Indication of the place, day and time of opening
• Designation of the competent enforcement judge

The safe may not be opened until fifteen days after the summons has been served (C. pr. exéc., art. R. 224-4). The debtor may waive this period in order to speed up the procedure.

If the debtor is absent, the forced opening is carried out in the presence of the owner of the safe or his representative. The costs are advanced by the creditor, but remain payable by the debtor.

Impact of termination of contract on foreclosure proceedings

In the event of termination of the safe deposit box rental contract following a precautionary seizureArticle R. 525-4 of the Code of Civil Enforcement Procedures provides for a specific procedure.

The owner of the safe must inform the bailiff immediately. Although the law does not impose any particular formalities, a registered letter with acknowledgement of receipt is preferable to avoid any disputes.

The bailiff then serves the debtor with a summons to attend to open the safe. The safe may not be opened before two weeks have elapsed, unless the debtor requests an earlier date.

If the debtor is absent, the forced opening is carried out in the presence of the owner or his authorised representative. A detailed inventory of the property is drawn up and a copy is sent to the debtor.

Respect for professional secrecy and exceptions

Bankers are normally bound by professional secrecy (C. pén., art. 226-13 et seq.). However, in seizure cases, this obligation no longer applies.

Article R. 224-1 of the Code of Civil Enforcement Procedures requires the banker to provide the bailiff with identification of the debtor's safe-deposit box. This provision explicitly sets aside banking secrecy.

It illustrates the general obligation of third parties not to obstruct enforcement proceedings (C. pr. exéc., art. L. 123-1).

A banker who disregards this obligation may incur civil liability towards the distraining creditor if the contents of the safe deposit box are altered as a result of unauthorised access.

The procedure for seizing assets placed in a bank safe reveals the full complexity of enforcement law. It balances the interests of the creditor, the rights of the debtor and the obligations of the banker.

The involvement of a lawyer specialising in banking law and in enforcement procedures is often necessary to navigate this legal maze, both for the creditor who wants to maximise his chances of recovery and for the debtor who needs to protect his rights.

Sources

• Code des procédures civiles d'exécution, articles L. 221-1 et seq., R. 221-1 et seq., R. 224-1 to R. 224-12
• Code of civil enforcement procedures, articles R. 525-1 to R. 525-5
• Criminal Code, articles 226-13 et seq.
• Civ. 1st, 30 June 2004, no. 01-00.475, Bull. civ. I, no. 190
• Civ. 1st, 15 Nov. 1988, no. 87-10.263
• Civ. 1re, 2 June 1993, no. 91-10.971, RTD civ. 1994. 389
• Civ. 1st, 29 March 1989, no. 87-17.262
• Com. 15 Jan. 1985, no. 83-12.226
• Doctrine : Natalie FRICERO, "Saisie des biens placés dans un coffre-fort", March 2015, Répertoire de procédure civile

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