Companies faced with unpaid debts have a legal arsenal at their disposal that is often little-known. Among these tools, the seizure of receivables is a particularly effective lever. This procedure makes it possible to quickly freeze the funds held by your debtor, particularly his bank accounts, even before obtaining a final judgement.
1. The strategic interest of debt seizure
Preventive attachment is a response to a major concern: preventing a debtor from organising his insolvency. This preventive measure freezes the debtor's assets without waiting for the outcome of legal proceedings, which are often lengthy.
Its main advantage? The surprise effect. The debtor is informed only after his accounts have been frozen. This procedure differs from conventional enforcement procedures, which require a writ of execution (final judgment, notarial deed, etc.).
The Code of Civil Enforcement Procedures (CPCE) clearly defines its objective: "to make the movable property" of the debtor unavailable (article L.521-1).
2. The scope of precautionary seizure of debts
Receivables concerned
Attachment may only relate to claims for sums of money. Article L.523-1 of the CPCE is explicit on this point.
Obligations to do, not to do or to give cannot be subject to such a measure. They are performed differently.
Please note, however, that remuneration for work is expressly excluded by Article L.3252-7 of the French Labour Code.
The special case of bank accounts
Bank accounts are the prime target for attachment. Why is this? Because the money is already there in liquid, easily identifiable form.
The banker, as the garnishee, plays a key role. He must declare the balance of the debtor's accounts on the day of the seizure (article L.162-1 of the CPCE).
The Court of Cassation has ruled that "the banker is only obliged to declare the balance of all the accounts" (Civ. 2e, 5 July 2000, no. 97-22.287).
3. Debt seizure procedure
The writ of attachment and service on the garnishee
To initiate the procedure, the creditor must obtain the authorisation of the enforcement judge, with the exceptions set out in article L.511-2 of the CPCE (writ of execution, accepted bill of exchange, unpaid cheque, etc.).
The bailiff then serves the writ of attachment on the third party holding the funds (usually a bank). To be valid, this deed must contain :
- The debtor's contact details
- Indication of the title authorising seizure
- Statement of amounts claimed
- The third party is prohibited from disposing of the sums seized
From 1 January 2021, if the garnishee is a bank, the document will be sent to it electronically.
Obligations of the garnishee
The garnishee (banker) must declare the extent of its obligations to the debtor (article L.211-3 of the CPCE).
Failure to comply with this obligation may result in severe penalties:
- Order to pay the causes of seizure
- Damages for inaccurate or misleading declarations
However, case law has qualified this rigour. A ruling of 5 July 2000 reminds us that the garnishee's guarantee is not an automatic sanction (Civ. 2e, no. 97-19.629).
Notice to the debtor
The seizure must be notified to the debtor within eight days, failing which it will lapse (article R.523-3 of the CPCE).
This notice must contain :
- A copy of the judge's authorisation or title
- A copy of the writ of seizure
- Information on your right to object
This stage is crucial. A procedural error at this stage could invalidate the entire entry.
4. Effects of seizure
Partial unavailability
Seizure renders the sums unavailable only "up to the authorised amount" (article L.523-1 of the CPCE).
This is an advantage for the debtor: only the amount of the debt is blocked, not the entire account.
An important social innovation: article L.162-2 of the CPCE requires the debtor (natural person) to leave a sum equivalent to the RSA for a single recipient.
Consignment and the distrainor's lien
Article L.523-1 states that seizure "automatically entails consignment of the unavailable sums and produces the effects provided for in article 2350 of the Civil Code".
This provision gives the distraining creditor a privilege comparable to that of the pledgee. In the event of subsequent insolvency proceedings, this protection may prove decisive.
However, case law considers that this privilege disappears if the seizure is not converted before the opening of collective proceedings (Com. 22 April 1997, no. 94-16.979).
5. Conversion to distraint
The act of conversion
Once a writ of execution has been issued, the creditor can convert the protective attachment into an attachment for payment.
The conversion deed must state :
- Reference to the seizure report
- Enforcement order
- Statement of amounts due
- Payment request
This conversion "entails immediate attribution of the seized debt" (article L.523-2 of the CPCE).
Possible disputes
The debtor has 15 days to contest the conversion (article R.523-9 of the CPCE).
This dispute must be notified to the bailiff by registered letter on the same day. The debtor must also inform the garnishee by simple letter.
Case law requires that this challenge not only be served but also registered within the 15-day time limit (Paris, 3 December 1998).
If there is no dispute, the bailiff may issue a certificate of no dispute allowing immediate payment by the garnishee.
Sources
- Code des procédures civiles d'exécution, articles L.511-1 et seq., L.521-1, L.523-1 to L.523-2, R.523-1 to R.523-10
- French Labour Code, article L.3252-7
- Civil Code, article 2350
- Court of Cassation, 2nd Civil Chamber, 5 July 2000, no. 97-22.287, Bull. civ. II, no. 113
- Court of Cassation, 2nd Civil Chamber, 5 July 2000, no. 97-19.629, Bull. civ. II, no. 115
- Court of Cassation, Commercial Chamber, 22 April 1997, no. 94-16.979, Bull. civ. IV, no. 100
- Paris Court of Appeal, 3 December 1998, Procédures 1999, Comm. 24
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