Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

Whether carried out against the debtor or a third party, protective seizures of tangible movable property must adhere to a series of common rules. They concern all movable property owned by the debtor , excluding property that is exempt from seizure under Articles L. 112-2 and R. 112-2 of the Code of Civil Enforcement Procedures . Article L. 521-1, para. 2, of the same code specifies that these se …

Protective measures

Whether carried out against the debtor or a third party, protective seizures of tangible movable property must adhere to a series of common rules. They concern all movable property owned by the debtor , excluding property that is exempt from seizure under Articles L. 112-2 and R. 112-2 of the Code of Civil Enforcement Procedures . Article L. 521-1, para. 2, of the same code specifies that these seizures render the property unavailable. When a protective seizure is carried out on property made unavailable by one or more prior protective seizures, Article R. 522-9 requires the judicial commissioner to serve “a copy of the seizure report to each creditor whose actions precede theirs.” Furthermore, according to the Court of Cassation, a protective measure on tangible movables cannot, or is invalid, be carried out in a place used as the debtor's residence without authorization from the enforcement judge pursuant to Article R. 121-24 of the Code of Civil Enforcement Procedures, even if, under Article L. 511-2, the creditor relies on a writ of execution or a court decision that has not yet become enforceable .

When the seizure is carried out in the hands of the debtor, a seizure document must be drawn up by the judicial commissioner . In addition to the information required by Article 648 of the Code of Civil Procedure, Article R. 522-1, para. 2, of the Code of Civil Enforcement Procedures specifies all the information that this document must contain, on pain of invalidity, namely: (1) the mention of the judge's authorization or the title under which the seizure is carried out; (2) the detailed designation of the seized assets; (3) the debtor's statement, if present, regarding any previous seizures of the same assets; (4) the mention, in very conspicuous characters, of the unavailability of the seized assets, which are placed under the debtor's custody and cannot be alienated or moved, under penalty of sanctions; (5) the indication, in very conspicuous characters, that the debtor may, if the conditions for the validity of the seizure are not met, request its release from the enforcement judge of the place of their domicile; (6) the designation of the court before which other disputes will be brought; (7) the indication, if applicable, of the names, first names, and capacities of the persons who attended the seizure operations, who affix their signature on the original and copies, and in case of refusal, the mention in the document; and (8) the reproduction of Article 314-6 of the Criminal Code and Articles R. 511-1 to R. 512-3.

When the debtor is present at the seizure operations, Article R. 522-2 of the Code of Civil Enforcement Procedures requires the judicial commissioner to verbally remind them of the content of the information regarding their rights and obligations as stated in points 4 and 5 of Article R. 522-1. The text adds that a copy of the seizure document, bearing the same signatures as the original, is immediately given to the debtor, which serves as notification. In the absence of the debtor, Article R. 522-3 specifies that a copy of the seizure document must be served to them, granting them a period of eight days to inform the judicial commissioner of any prior seizure and to provide them with the report.

When the protective seizure is carried out in respect of a third party, Article R. 522-5, para. 1, of the Code of Civil Enforcement Procedures states that “it is carried out as provided in Articles R. 221-21 to R. 221-29, except for the first paragraph of Article R. 221-21 and Article R. 221-26, which are not applicable,” which respectively relate to the presentation of the order to pay served on the debtor and the amicable sale of seized goods. On pain of forfeiture, Article R. 522-5, para. 2, provides that “the act of seizure is served on the debtor within eight days” and must contain, on penalty of invalidity, a copy of the judge's authorization or the title under which the seizure was carried out; the inclusion, in very conspicuous characters, of the right belonging to the debtor, if the conditions for the validity of the seizure are not met, to request its invalidity from the enforcement judge of the place of their own domicile, and the reproduction of Articles R. 511-1 to R. 512-3. The fact that the act of seizure served on the debtor is not identical in all respects to that given to the third party does not suffice to cause the extinction of the protective measure when it has indeed been served on them within the eight-day period provided for in Article R. 522-5 .

Pursuant to Article R. 221-21, paras. 2 and 3, of the Code of Civil Enforcement Procedures, the judicial commissioner invites the third-patrty debtor (or garnishee) to declare the assets they hold on behalf of the debtor and, among these, those that have been subject to a prior seizure. In case of refusal to declare or inaccurate or false declaration, the garnishee may be ordered to pay the causes of the seizure, subject to recourse against the debtor, which may be supplemented by the payment of damages if their fault caused harm to the creditor. The garnishee in the context of a protective measure is obliged to respond “immediately” to fulfill their duty of disclosure, unless they justify a legitimate reason. Most often, this is the case when they could not immediately be aware of the seizure. They are then obliged to provide the requested information as soon as they become aware of the seizure or are supposed to be aware of it. However, they incur liability when they do not justify any legitimate reason for exemption from their duty to cooperate, neither “immediately” nor subsequently . The Court of Cassation considers that the fact that the seizing creditor obtained, after the completion of the protective measure of tangible movable property, the information owed to them by the third party, in whose hands the seizure was carried out, does not exempt the latter from their obligation to provide the legally required information . Furthermore, even if the third party fulfills their declarative obligation “immediately,” they incur liability when they subsequently provide the judicial commissioner with false or inaccurate additional information .

The third-party holder, in whose hands the seizure has been carried out, is deemed the custodian of the seized objects . As such, they are required to ensure the proper preservation of the movable property subject to the protective measure. In the context of a protective seizure on wine belonging to a debtor, the Court of Cassation considered that the custodian could not be exempted from their responsibility as a trustee insofar as the sale upon seizure occurred at a price below its market value due to the poor quality of the wine, and they did not establish that at the time of acquisition, the wine was not sound and merchantable . Furthermore, it was ruled that a third party, in whose hands a protective seizure of all movable property is carried out, is entitled, as a depository, to enforce their right of retention against the seizing creditor for the entirety of the seized property, even if their claim is significantly lower than the value of the property, and is not required to relinquish it until they have been fully paid for their claim .

Cass. 1re civ., 11 January 2000, LawLex202300001333JBJ: in this case, the debtor's partner could request the lifting of the protective seizure on furniture located in their shared home, as she established her ownership rights over them by producing purchase receipts in her name.

For a negative application to personal or family memories, Cass. 2e civ., 12 May 2016, LawLex202200011186JBJ.

CA Reims, 7 February 2017, LawLex202300008208JBJ.

Cass. 2e civ., 17 September 2020, LawLex202300006489JBJ, which approves the appeal judgment, which, to annul the protective seizure of movable property, noted that the judicial commissioner was not authorized by a judge to enter the premises serving as the debtor's residence; 17 September 2020, LawLex202200010418JBJ.

Cass. 2e civ., 12 May 2016, LawLex202200011186JBJ.

CA Versailles, 15 November 2018, LawLex202300008202JBJ.

Cass. 2e civ., 4 February 2021, LawLex202200010124JBJ, upholding CA Versailles, 15 November 2018, LawLex202300008202JBJ, prec.

Cass. com., 1 June 2010, LawLex202300008077JBJ, which adds that the seizing party is the debtor of the salary set by law with respect to this guardian.

Cass. 1re civ., 15 May 2008, LawLex202300001046JBJ.

5. Civil Enforcement Procedures

106. Protective measures

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Les décisions de justice citées dans ce paragraphe :

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106. Protective measures

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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