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

To oppose the enforcement measures implemented by their creditor to ensure the recovery of their claim, the debtor may enforce the defense of setting-off (exception de compensation), a mechanism that leads to the simultaneous extinction of reciprocal obligations between two persons . However, such a defense implies that the debtor's claim and the seizing creditor's claim are reciprocal claims . Furthermore, setting-off only occurs between two fungible, certain, liquidated, and due obligations . As a result, a settled claim cannot be set off against another claim that is still due and whose recovery is pursued through an attachment order . Set-off cannot be raised either, in the absence of a liquid and due claim against the holder of the writ of execution, when the debtor merely invokes a legal proceeding initiated against them accompanied by a claim for occupancy indemnity . Conversely, certain, liquid, and due claims between a social organization, the seizing creditor, and a seized debtor are automatically set off . However, a judge cannot dismiss the debtor's claim for set-off on the grounds that the seizure - apprehension results in the immediate allocation of the seized claim to the benefit of the seizing party and makes set-off impossible, without first determining whether the latter's claim is extinguished by the effect of a legal set-off that occurred before the measure .

Certain claims have particularities that prevent them from being subject to set-off. Indeed, the debtor of a compensatory allowance cannot, due to its maintenance nature, obtain the release of a seizure - apprehension executed on their account by invoking set-off with other amounts owed to them .

Pursuant to Article L. 213-6, para. 1, of the Code of Judicial Organization, the enforcement judge has exclusive jurisdiction over difficulties related to writs of execution and disputes arising during compulsory enforcement, even if they concern the merits of the case, unless they fall outside the jurisdiction of the judicial courts. Consequently, it is the responsibility of the enforcement judge to resolve the dispute raised by the debtor against whom a seizure and sale is carried out, concerning the exception of set-off, by verifying the amount of the claimed debt . The same applies when the exception is invoked in support of an application for the release of a seizure  or when it seeks to challenge the validity of the rights and obligations recorded in a notarial deed under which the creditor has issued a command for seizure and sale .

Paragraph 2 of Article L. 213-6 also provides that the enforcement judge authorizes interim protective measures and hears disputes related to their implementation. Thus, the enforcement judge exceeds their powers when, seized with an application for the withdrawal of an order authorizing a protective seizure of claims corresponding to unpaid goods, they refuse to examine the merits of a set-off exception raised by the debtor .

Para. 3 specifies that the enforcement judge has jurisdiction, under the same reservation, over the real estate seizure procedure, disputes arising from it, and claims originating from or directly related to this procedure, even if they concern the merits of the case, as well as the distribution procedure resulting from it. The enforcement judge is required to verify the amount of a claim being recovered against the debtor through a payment order for seizure and sale and to resolve the dispute raised by the latter regarding the exception of set-off . However, the enforcement judge is not competent to rule on the counterclaim of a borrower, who has been served with a real estate seizure order by the bank, based on the bank's contractual liability for failing to fulfill its duty of information and warning when granting a loan, which seeks to condemn the bank to pay damages equivalent to the amount of its claim, as such a claim does not merely invoke a set-off .

Finally, the guarantor may enforce the set-off between the principal debtor's debt and what the creditor owes to the latter . Indeed, the setting-off defense can be raised by the guarantor against whom a seizure-attribution is carried out, even for the first time before the enforcement judge . The enforcement judge cannot refuse the guarantor, who is subject to a real estate seizure, the set-off against the amount due for rental arrears, of a claim of the principal debtor against the seizing creditor, on the grounds that the latter's claim is significantly higher, without establishing that all the amounts still owed are indeed guaranteed .

CA Paris, 4 March 2021, LawLex202300006325JBJ.

Cass. 2e civ., 25 February 2010, LawLex202300000576JBJ.

Cass. 2e civ., 15 November 2007, LawLex202200011324JBJ.

Cass. 2e civ., 18 February 2016, LawLex202300004469JBJ.

Cass. 2e civ., 25 September 2014, LawLex202300004470JBJ.

Cass. 2e civ., 8 December 2005, LawLex202300000575JBJ.

Cass. com., 4 October 2005, LawLex202300000534JBJ.

Cass. 2e civ., 11 May 2006, LawLex202300000537JBJ.

CA Paris, 19 March 2015, LawLex202300004416JBJ.

CA Colmar, 19 November 2018, LawLex202300006157JBJ.

Cass. 2e civ., 16 December 2004, LawLex202300000533JBJ.

Cass. 1re civ., 12 November 2009, LawLex202200010321JBJ.

Cass. 2e civ., 17 February 2011, LawLex202300000577JBJ.

Cass. com., 21 February 2012, LawLex202100005239JBJ.

63. Conditions