Who hasn't received a letter from a bailiff? This stressful experience places the recipient in a specific legal position: that of the distrained debtor. As the central character in civil enforcement proceedings, the debtor has specific rights, but must also comply with certain obligations.
Debtor status
The person of the debtor
The debtor is the person who has made a personal commitment. Article 2284 of the Civil Code states that "anyone who has entered into a personal obligation is bound to fulfil that obligation in respect of all his movable and immovable property, both present and future".. This principle is the basis for the creditor's ability to act against the property of the defaulting debtor.
However, some people benefit from special arrangements:
- An adult under court protection remains fully capable
- The adult under guardianship is assisted for important acts
- Emancipated minors have a capacity similar to that of adults
The management of other people's debts by third parties is strictly regulated. Article L. 342-1 of the French Consumer Code declares null and void any agreement whereby an intermediary undertakes, in return for remuneration, to intervene in the repayment of an individual's debts.
Married and civil union debtors
Matrimonial status changes the rules applicable to debts.
For a married debtor :
- Household debts are jointly incurred by the spouses (art. 220 C. civ.)
- This solidarity ceases for "manifestly excessive" expenditure
- Under community property regimes, joint assets can be seized
- Own assets are only seized for personal debts
For a debtor in a civil union :
- Article 515-4 of the Civil Code provides for the joint and several liability of partners
- This solidarity only concerns "everyday needs".
- It does not apply to "manifestly excessive expenditure".
An important ruling by the Court of Cassation (Civ. 2e, 21 March 2019, no. 18-10.408) clarifies the regime applicable to joint accounts: "The attributive effect of the seizure extends, subject to the rules specific to matrimonial regimes between spouses, to the entire credit balance."
Persons other than the debtor
Other people may also be prosecuted:
- The debtor's legal representative (agent, tutor, administrator)
- The universal successor (heir)
Article 877 of the Civil Code states that "a writ of execution against the deceased is also enforceable against the heir". However, creditors must wait eight days after service of the writ on the heir before proceeding with enforcement.
The consequences of proceedings for debtors
Unavailability and custody of assets
The first consequence of a seizure is the unavailability of the assets concerned. Article L. 141-2 of the Code of Civil Enforcement Procedures (CPCE) clearly states: "The act of seizure renders the property subject to it unavailable.
The debtor retains ownership of the seized assets but can no longer sell or give them away. The debtor becomes the legal custodian, with all the responsibilities that this entails. The Criminal Code severely punishes the misappropriation of seized objects (art. 314-6): three years' imprisonment and a €375,000 fine.
Specific rules apply depending on the type of property:
- In the case of movable property, the debtor retains the right to use it unless it is expendable.
- For claims, seizure interrupts the statute of limitations
- In the case of immovable property, the debtor remains sequestrator except in serious circumstances
A judge may modify these provisions by entrusting the assets to a receiver (art. R. 221-19 CPCE) or by ordering the immobilisation of a vehicle.
Particularities in execution
The debtor normally bears all the costs of the proceedings. Article L. 111-8 of the CPCE states that "the costs of enforcement are to be borne by the debtor, unless it is clear that they were not necessary at the time they were incurred"..
There are exceptions to this principle. The costs are borne by the creditor:
- When they concern an act not prescribed by law
- When the claim is not liquid, certain and due
- When costs are deemed disproportionate
In the event of non-performance, article 1222 of the Civil Code allows the creditor to enforce the obligation itself at the debtor's expense, after serving formal notice.
Costs of proceedings
The question of costs is crucial for debtors. Contrary to popular belief, not all costs are automatically the debtor's responsibility.
The judge may refuse to charge certain costs to the debtor if he considers that they were unnecessary. This is particularly the case when the creditor unnecessarily multiplies the procedural steps or resorts to disproportionate measures.
In practice, these costs include :
- The cost of bailiff's documents
- Fees for due diligence
- Registration fees
- Travel expenses
- Custody fees for seized assets
The debtor's resistance and its consequences
Abusive resistance by the debtor may be punished. Article L. 121-3 of the CPCE gives the enforcement judge the power to order the debtor to pay damages if he abusively resists enforcement.
Even more seriously, the deliberate organisation of insolvency by the debtor constitutes a criminal offence. Article 314-7 of the French Criminal Code punishes anyone who organises or aggravates his or her insolvency "with a view to evading the enforcement of a sentence relating to property".
This offence can take various forms:
- Artificial increase in liabilities
- Decrease in assets
- Income concealment
- Concealment of goods
Case law has convicted a debtor who left his job with the sole aim of becoming insolvent (Crim. 1 Feb. 1990).
It is in the debtor's best interests to cooperate with the bailiff and seek amicable solutions rather than engage in sterile resistance that will worsen his situation.
Our firm regularly assists debtors in difficulty. We help them understand their rights and negotiate appropriate solutions. Early consultation can often help avoid lengthy and costly proceedings. Do not hesitate to contact us as soon as you receive a summons to pay.
Sources
- Code of civil enforcement procedures: articles L. 111-1 to L. 311-8, L. 121-2, L. 121-3, L. 141-2, R. 221-19
- Civil Code: articles 877, 1222, 2284, 2285, 220, 515-4, 515-5
- Criminal Code: articles 314-6, 314-7
- Consumer Code: article L. 342-1
- Court of Cassation, 2nd Civil Chamber, 21 March 2019, no. 18-10.408
- Court of Cassation, Criminal Division, 1 February 1990, Gazette du Palais 1990.2.390
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