Understanding seizure and attachment: recovering your tangible movable property

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Recovering property that has not been returned or delivered is often a legal headache. How do you repossess a vehicle that has not been returned after a loan? How do you recover equipment you own? Seizure and attachment is the legal solution for recovering these assets. We take a closer look at this little-known legal mechanism.

What is capture-apprehension?

Seizure and apprehension is a compulsory enforcement procedure that enables a creditor to have furniture apprehended that the debtor is obliged to deliver or return to the creditor. Article L.222-1 of the Code des procédures civiles d'exécution (CPCE) states that "the court commissioner responsible for enforcement shall apprehend the furniture that the debtor is obliged to deliver or return to the creditor under a writ of execution, unless the debtor offers to transport it at his own expense".

Unlike seizure for sale, which aims to sell an asset to pay off a debt, the purpose of seizure is to physically hand over the asset itself. It also differs from attachment which is merely a precautionary measure making the property unavailable pending its return.

Conditions of use

An essential writ of execution

To initiate a seizure and attachment, the creditor must have an enforceable title. According to article R.222-1 of the CPCE, "tangible movable property may be apprehended in the hands of the person who is required to hand it over by virtue of a writ of execution or directly in the hands of a third party who holds it on behalf of the latter".

• A judgment that has become final
• A provisionally enforceable court order
• An enforceable notarial deed
• An enforceable delivery or restitution order

Without a writ of execution, it is impossible to proceed with a seizure and attachment. The creditor may, however, request a order for delivery or restitution to the enforcement judge.

The assets concerned

Only tangible movable property may be subject to seizure and attachment. The procedure is aimed at:

• Furnishings (furniture, electrical appliances, etc.)
• The vehicles
• Professional equipment
• The goods

Immovable property and intangible movables (such as company shares or receivables) are excluded from the scope of application.

Obligations covered

Attachment only concerns obligations to deliver or return. These obligations may arise:

• A contract of sale (obligation to deliver)
• A loan contract (obligation to return)
• A rental or leasing contract (return at the end of the contract)
• A retention-of-title clause (restitution after the sale has been cancelled)

How the procedure works

In the hands of the direct debtor

Prior command

In principle, seizure and attachment begins with an order to deliver or return served on the debtor. Article R.222-2 of the CPCE stipulates that this summons must contain the following information, failing which it is null and void:

• The enforcement order
• Indication that the debtor may transport the goods at his own expense within 8 days
• Warning that failure to do so will result in the property being seized at the customer's expense
• Indication of possible avenues of appeal

This commandment gives the debtor a last chance to comply voluntarily.

Proceedings without a court order

In certain situations, the judicial commissioner may proceed with immediate apprehension, without prior command. Article R.222-3 of the CPCE authorises this accelerated procedure when:

• The debtor is present when enforcement is attempted
• The court commissioner asked him if he would offer to transport the property at his own expense.
• The debtor refused this proposal

This express procedure prevents the debtor from disposing of the property after receiving the summons.

Minutes and handover of the property

Whether there is voluntary surrender or forced apprehension, the court commissioner draws up a detailed report. According to article R.222-4 of the CPCE, "a record shall be drawn up of the voluntary surrender or apprehension of the property. This record shall contain a detailed description of the property".

The commissioner may photograph the property. These photographs are attached to the deed. A copy of the minutes is given to the debtor if he is present, otherwise he is notified.

If the asset is handed over to a pledgee, additional formalities are set out in article R.222-6 of the CPCE.

In the hands of a third party

Summons to the third party holder

When the asset is in the hands of a third party, the procedure is different. Article R.222-7 of the CPCE requires a summons to be served directly on the third party holder and notified to the debtor.

This summons shall contain, under penalty of nullity

• A copy of the enforcement order
• An injunction to hand over the property within 8 days
• The possibility for third parties to communicate their reasons for objecting
• Indication that difficulties will be referred to the enforcement judge

Special judicial authorisation

If the third party refuses to hand over the property voluntarily, the creditor must refer the matter to the enforcement judge. Article R.222-8 of the CPCE states that "in the absence of voluntary surrender within the time limit set, the distraining creditor may ask the enforcement judge in the place where the third party holding the asset is based to order the surrender of the asset".

The judicial authority intervenes to protect the rights of third parties who are not directly covered by the writ of execution.

In this case, article L.222-1 of the CPCE requires special authorisation from the judge.

Protection of the third party holder

The third party holder benefits from a number of guarantees:

1. He can justify his refusal to hand over the property
2. He may refer the matter to the enforcement judge himself
3. He can invoke a right of his own over the asset (e.g. right of retention).

According to article R.222-9 of the CPCE, apprehension in the hands of the third party is only possible on presentation of the judge's decision.

Special cases

Assets placed in a safe

The seizure of goods placed in a safe is subject to a specific regime set out in articles R.224-1 to R.224-12 of the CPCE.

1. Serve a writ of seizure on the establishment where the safe deposit box is located
2. Serving a summons on the debtor
3. Open the safe in the presence of the debtor or, failing that, a representative of the institution.
4. Drawing up an inventory of seized assets

This system protects both the creditor's interests and banking secrecy.

Understanding a land-based motor vehicle

For vehicles, article R.222-16 of the CPCE authorises the use of the immobilisation techniques provided for seizure for sale:

• Using a Denver shoe
• Removal and impoundment
• Immobilisation by any means that renders the vehicle unusable

These measures prevent the vehicle from disappearing before it is finally apprehended.

Delivery to a pledgee

When the asset is seized and handed over to a pledgee, the procedure becomes more complicated. Article R.222-6 of the CPCE states that:

• The act of apprehension is equivalent to seizure in the creditor's custody
• The creditor may then proceed with the sale in accordance with the rules governing seizure and sale.
• The debtor is served with a document containing a number of mandatory details
• The debtor has one month in which to make an amicable sale

Special rules have applied since Decree no. 2021-1888 of 29 December 2021 if the creditor uses the simplified realisation procedure provided for in article 2346 of the Civil Code.

Although technical, the seizure and attachment procedure is an effective tool for recovering assets. However, it must be carried out in accordance with strict formalities, otherwise it may be null and void. It is also important to take into account potential obstacles and limitations to these procedures. To navigate these complexities, the assistance of a lawyer specialising in enforcement procedures is often essential.

Sources

• Code of civil enforcement procedures, articles L.222-1 to L.222-2 and R.222-1 to R.222-16
• "Saisie-appréhension - Rémy BOUR - December 2015", Répertoire de procédure civile Dalloz
• "Saisie-apprehension et saisie-revendication des biens meubles corporels", Catherine Tirvaudey-Bourdin, JurisClasseur Procédure civile, 22 August 2022
• "Saisie-revendication - Rémy BOUR - April 2017, Répertoire de procédure civile Dalloz
• Decree no. 2021-1888 of 29 December 2021 containing various measures relating to enforcement procedures

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