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. 221-13, para. 1, of the Code of Civil Enforcement Procedures, the seizure and sale of tangible movable property renders the seized property legally unavailable. If the report drawn up by a judicial commissioner, within the framework of a seizure and sale, results in the unavailability of the property that is the subject thereof , the same does not apply to the report that he may be required to draw up, pursuant to Article R. 151-1, para. 1, when he encounters a difficulty that hinders the course of the operations . A demand for seizure and sale, which does not constitute an act of enforcement of the claim, but an act interrupting the limitation period of the claim, does not render the concerned property unavailable .

The unavailability of the seized property does not prevent the owner from using the property , but only from transferring it . However, it does not prevent the same creditor from carrying out a seizure and sale on a vehicle that is already subject to a seizure for immobilization at their initiative .

The same solutions apply to intangible movable property: the procedure for the seizure of partnership rights and securities renders the debtor's pecuniary rights unavailable . This unavailability does not prevent a subsequent registration of judicial pledge by another creditor, but makes this pledge unenforceable against the seizing creditor . In the context of a saisie-attribution  (attachment order) the act of seizure on a bank account results in the immediate allocation, in favor of the seizing party, of a claim available in the hands of the third-party debtor and renders it unavailable subject to ongoing transactions . This allocation is automatic and results in the transfer of the claim into the creditor's estate.

The debtor who transfers the property in disregard of its unavailability may be subject to criminal sanctions. Indeed, Article 314-6 of the Criminal Code provides that the act, by the seized party, of destroying or misapproriating an object seized in their hands as a guarantee of a creditor's rights and entrusted to their custody or that of a third party is punishable by three years of imprisonment and a fine of EUR 375,000. This provision applies when the defendant, threatened with eviction, places a piece of furniture made unavailable by the effect of a protective measure converted into a saisie-conservatoire (protective seizure) in a storage facility without notifying either the creditor or the judicial commissioner , when the representative of a company sells to a third party, in disregard of a protective seizure accompanied by a prohibition on alienation for consideration, part of the seized timber , or when the defendant transfers shares despite the unavailability resulting from an attachment previously enforced . Also committing a misapproriation of seized objects is the custodian of furniture made unavailable due to the seizure carried out by the Public Treasury, who transfers them to a third party to whom they claim to have sold them before the seizure, without having requested its annulment or release .

CA Bordeaux, 12 December 2019, LawLex202300004255JBJ.

Cass. 2e civ., 16 March 2000, LawLex202300003295JBJ.

Cass. crim., 16 April 1980, LawLex202200002612JBJ.

Cass. crim., 24 September 1997, LawLex202200002933JBJ.

Cass. crim., 1 September 2004, LawLex202200005170JBJ.

CA CASaint-Denis de la Réunion, 27 September 2022, LawLex202300005931JBJ.

CA Aix-en-Provence, 14 June 2018, LawLex202300005968JBJ.

CA Paris, 23 January 2020, LawLex202300004251JBJ.

Cass. 2e civ., 20 November 2003, LawLex202300001400JBJ.

CA Douai, 22 May 2014, LawLex202300006127JBJ.

CA Caen, 17 September 2013, LawLex202300005932JBJ.

Cass. crim., 28 April 1982, LawLex202300004403JBJ.

57. Unavailability of tangible and intangible movable property, and misappropriation of assets