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

Judicial securities are enforceable against third parties on the day the publication formalities provided for in Articles R. 532-1 et seq. of the Code of Civil Enforcement Procedures are completed.

Provisional publication has the effect of granting the creditor an anticipated rank on the encumbered assets. Due to their indivisibility, certain assets such as real estate and business assets are de  …

Effects

Judicial securities are enforceable against third parties on the day the publication formalities provided for in Articles R. 532-1 et seq. of the Code of Civil Enforcement Procedures are completed.

Provisional publication has the effect of granting the creditor an anticipated rank on the encumbered assets. Due to their indivisibility, certain assets such as real estate and business assets are de facto entirely encumbered by the security. However, this is not the case for the pledge of shares or securities, which encumbers all the shares or securities unless otherwise specified in the deed . Thus, the creditor may voluntarily limit the provisional registration to only part of these assets, for the sake of proportionality. In certain circumstances, the creditor may be compelled to do so. Indeed, Article R. 532-9 provides that “when the value of the encumbered assets is manifestly greater than the amount of the guaranteed sums, the debtor may have the effects of the provisional security limited by the judge if he proves that the remaining encumbered assets have a value double the amount of these sums.” The Court of Cassation considers that there is no reason to grant the request for the limitation of a provisional judicial mortgage presented by a debtor, even if the value of the concerned assets exceeds double the amount of the claim, when they are encumbered by other security measures in favor of various other creditors . It is also not possible to limit the registration of a mortgage to certain properties belonging to the debtor when the value of the remaining properties does not represent double the amount of the sums for which this protective measure was authorized .

If the assets encumbered by a judicial security remain alienable , Article R. 532-8, para. 1, establishes a protection mechanism for the creditor holding the judicial security by specifying that they “enjoy the same rights as the holder of a conventional or legal security” in the event of the sale of the encumbered asset before the completion of the final publication. The text adds that the portion due to the creditor in the distribution of the price is then deposited with the Caisse des dépôts et consignations. This portion is ultimately handed over to them if they provide proof of the completion of the final publication. Failing that, it is handed over to the creditors entitled to receive it or to the debtor . However, in the case of the sale of securities registered in an account held and managed by an authorized intermediary, Article L. 531-2, para. 2, of the same code provides that “the price may be used to acquire other securities which are then subrogated to the sold securities.”

In accordance with Article R. 532-7, para. 1, “the provisional publication preserves the security for three years” and “can be renewed for the same duration,” without any limitation on the number of renewals imposed by the text . The creditor, who has obtained authorization to take a provisional registration, can therefore renew it as long as no decision with the authority of res judicata has been made on the action initiated to obtain a writ of execution, pursuant to Article R. 511-7 . In cases where the provisional registration has produced its legal effect, the Court of Cassation considers that its renewal is not necessary when the price has been deposited . In any case, the renewal is carried out under the conditions provided for in Articles 61 and following of Decree No 55-1350 of 14 October 1955, adopted for the application of Decree No 55-22 of 4 January 1955 on the reform of land registration, for the provisional registration of the provisional judicial mortgage, and in the same forms as the initial publication for other judicial securities. Although Article R. 532-7, para. 2, states that the publication of the renewal follows the formalities applicable to the initial registration, these provisions do not provide for the notification of the renewal of the registration to the debtor . Finally, if the renewal of a provisional judicial mortgage can validly come from an absorbing or transferee company provided it does not worsen the debtor's situation, the initial registration must have been validly obtained by a creditor with legal personality .

Finally, pursuant to Article R. 533-1 of the Code of Civil Enforcement Procedures, “the provisional publication must be confirmed by a definitive publication.” Failing confirmation, the provisional publication lapses and its removal may be requested from the enforcement judge, pursuant to Article R. 533-6, para. 1. In the event of termination of the proceedings initiated by the creditor to obtain the writ of execution necessary for confirmation, or if the application is rejected, Article R. 533-6, para. 2, states that “the removal is requested from the court seized of the merits,” and failing that, “ordered by the enforcement judge.”

CPC exec., Art. R. 532-3, para. 3 and R. 532-4, para. 3.

Cass. 3e civ., 7 July 2004, LawLex202300000119JBJ.

Cass. 2e civ., 21 March 2013, LawLex202300008581JBJ.

Cass. 2e civ., 2 February 2023, LawLex202300008551JBJ.

Cass. 1re civ., 22 March 2012, LawLex202400003192JBJ.

Cass. 2e civ., 2 February 2023, LawLex202300008551JBJ, prec.; 8 June 2023, LawLex202400003193JBJ.

Cass. 1re civ., 16 September 2010, LawLex202300008580JBJ.

5. Civil Enforcement Procedures

120. Effects

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120. Effects

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