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

Pursuant to Article R. 523-1 of the Code of Civil Enforcement Procedures, the creditor carries out a protective seizure of claims by serving the garnishee (third party) with a judicial commissioner's act, which must contain, on pain of invalidity: the name and domicile of the debtor or, if it is a legal entity, its name and registered office; the indication of the authorization or title under whic …

Third-party seizure

Pursuant to Article R. 523-1 of the Code of Civil Enforcement Procedures, the creditor carries out a protective seizure of claims by serving the garnishee (third party) with a judicial commissioner's act, which must contain, on pain of invalidity: the name and domicile of the debtor or, if it is a legal entity, its name and registered office; the indication of the authorization or title under which the seizure is carried out; the breakdown of the amounts for which the seizure is carried out; the prohibition for the garnishee to dispose of the claimed amounts within the limit of what is owed to the debtor; and the reproduction of the third paragraph of Article L. 141-2 and Article L. 211-3. When the garnishee is an institution authorized by law to hold deposit accounts, Article L. 523-1-1 of the same code requires that the document be transmitted electronically.

Pursuant to Article R. 523-4, para. 1, the garnishee is required to provide “immediately”  to the judicial commissioner the information specified in Article L. 211-3 and to disclose the supporting documents. This is stated in the seizure document . In the case of a seizure carried out through an institution authorized by law to hold deposit accounts, the institution is required to make the extended declaration provided for in Article L. 162-1. When the seizure document is served electronically, Article R. 523-4, para. 3, specifies that the garnishee must disclose to the judicial commissioner, by the same means, the information and supporting documents no later than the first business day following the service. This information is mentioned in the notice to the garnished debtor .

In the absence of a challenge before the act of conversion, the third party's declaration is deemed accurate solely for the purposes of the seizure, in accordance with Article R. 523-6. However, these provisions only concern the challenge by the garnishee of their declaration after the act of conversion, and not that of the seizing creditor  or the third party to the seizure procedure , who retain the possibility to act.

According to Article R. 523-5, para. 1, “the third party garnishee who, without legitimate reason, does not provide the required information, is liable to pay the amounts for which the seizure was made if the debtor is condemned, except for recourse against the latter.”  However, the Court of Cassation has established the principle that the invalidity of the protective seizure, or its lapse which retroactively deprives it of all its effects, prevents the seizing creditor from having the third party garnishee condemned, on the basis of Article R. 523-5, para. 1, to pay the amounts for which the seizure was made. This solution is justified by the fact that the sanction for the third party garnishee's failure to fulfill their obligation to provide information necessarily falls within the framework of a valid protective seizure . The third party garnishee may also be condemned to damages in case of negligent misconduct or false or misleading declaration . This latter sanction requires proof of the existence of harm due to  fault . Nevertheless, the third party garnishee, who was not aware of the protective seizure due to its service being carried out under the conditions of Article 659 of the Code of Civil Procedure, by drawing up a report of unsuccessful searches, cannot be ordered either to pay the causes of the seizure or damages for negligent misconduct .

Cass. 2e civ., 7 November 2002, LawLex202400003186JBJ, which quashes the appeal judgment that admitted a response one month after the seizure.

Cass. 2e civ., 8 December 2011, LawLex202400003187JBJ.

Cass. 2e civ., 27 September 2012, LawLex202400003188JBJ.

Cass. 2e civ., 26 May 2011, LawLex202300004038JBJ, which overturns the appeal order which, in order to find the third party liable for the causes of the preventive seizure, held that the latter did not specify the amount of the sums held at the time of the seizure, even though he did not fail to make the required declaration by responding to the judicial commissioner that he held sums on behalf of the debtor, the amount of which he would specify within forty-eight hours.

Cass. civ., opinion, 21 June 1999, LawLex202300001876JBJ. See also Cass. 2e civ., 6 May 2004, LawLex202300002126JBJ, which quashes the appeal judgment that dismissed the consequences of the lapse on the grounds that the seizure had been unsuccessful, whereas the provision does not impose such a condition.

Cass. 2e civ., 26 May 2011, LawLex202300004038JBJ.

Cass. 2e civ., 21 December 2000, LawLex202300004037JBJ.

Cass. 2e civ., 13 June 2002, LawLex202300004048JBJ.

5. Civil Enforcement Procedures

111. Third-party seizure

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

111. Third-party seizure

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise