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

Enforcement measures can only apply to seizable assets and devts. Article 2284 of the Civil Code specifies that “anyone who has personally undertaken an obligation is required to fulfill that obligation with all their movable and immovable property, present and future.” This may include tangible movables (vehicles, furniture, jewelry, etc.) and intangible assets (receivables, shares, patents, trad …

Seizable assets and claims

Enforcement measures can only apply to seizable assets and devts. Article 2284 of the Civil Code specifies that “anyone who has personally undertaken an obligation is required to fulfill that obligation with all their movable and immovable property, present and future.” This may include tangible movables (vehicles, furniture, jewelry, etc.) and intangible assets (receivables, shares, patents, trademarks, etc.), real estate (land, houses, apartments, etc.), or the debtor's income (salaries, rents, pensions, annuities), even if held by third parties . All these assets may be subject to enforcement or interim protective measures, except in cases where the law prescribes or allows their to be exempt from seizure . Case law defines the range of assets that may be subject to seizure.

In the context of joint ownership (indivision), case law allows a co-owner to be reimbursed for amounts advanced on behalf of the joint ownership by seizing certain of their assets, without having to wait for the division of property . However, a personal creditor of a co-owner cannot seize their share in the jointly owned property, but can only initiate the partition in the name of the debtor . This constraint does not apply, however, when all the co-owners are debtors to the creditor: the creditor can, without initiating the division, carry out a seizure on the jointly owned property . The same applies, even if only one of the co-owners is a creditor of one of the co-owners, when a mortgage has been established on the jointly owned property with the consent of all co-owners . Measures that do not deprive the co-owner of the enjoyment of their property are also permitted: such is the case with the establishment of a provisional mortgage, which does not result in the debtor's dispossession .

In the event of the initiation of insolvency proceedings against one of the co-owners, the creditors of the pre-existing joint ownership, who could have acted on the jointly owned property before the joint ownership existed, retain their right to pursue the seizure of these assets, despite the initiation of these proceedings and the possible extinction of their claim against the co-owner subject to the proceedings, due to failure to file a claim in the liabilities of the proceedings . Similarly, the Court of Cassation allows the creditor of a joint ownership pre-existing the initiation of insolvency proceedings of a former spouse to pursue the seizure and sale of the jointly owned property before any division, despite the initiation of the proceedings .

When the debtor is married under the community property regime and is subject to insolvency proceedings, their wages are subject to collective seizure for the benefit of creditors participating in the proceedings. During the duration of these proceedings, they cannot be seized for the benefit of a creditor of the solvent spouse . In the absence of insolvency proceedings, the seizure carried out on an account funded solely by the debtor spouse's income, even if it is community property, cannot be challenged . Furthermore, pursuant to Article 1415 of the Civil Code, each spouse can only commit their own property and income through a guarantee or loan contracted without the express consent of the other. Consequently, when the debtor spouse has committed to a guarantee without obtaining the consent of their spouse, a seizure cannot be carried out on their accounts without the creditor identifying, among the amounts presumed to be community property, the debtor's own income .

When the debtor is married under the regime of separation of property  or is living in a state of cohabitation , the measure can only apply to assets specifically identified as belonging to them personally.

The principle that the debtor is liable for their debts with their present or future assets is significantly tempered in matters of compulsory enforcement. Indeed, case law holds that a claim can only be seized if it exists at the time the measure is executed. In fact, when the debtor holds a life insurance contract, the creditor cannot have their claim assigned to the insurance company as long as the contract is not terminated . Similarly, a real estate seizure cannot be validly executed when the suspensive condition of a tontine clause is not fulfilled at the date of issuance of the order because the debtor does not yet hold the exclusive property right over the asset in question .

Cass. 1re civ., 14 January 2003, LawLex202200010243JBJ.

Cass. 1re civ., 17 January 2006, LawLex202300003596JBJ.

Cass. 1re civ., 20 May 2009, LawLex202300003546JBJ; 27 November 2001, LawLex202200010245JBJ.

Cass. 1re civ., 11 January 2000, LawLex202300001333JBJ, holding that the debtor's partner may request the release of a protective seizure on furniture located in their shared home when she establishes her ownership rights over them by producing purchase invoices in her name, without being required to additionally demonstrate that she personally paid for them.

Cass. 1re civ., 28 April 1998, LawLex202300003548JBJ; Cass. 2e civ., 10 February 2011, LawLex202300003585JBJ.

Cass. 1re civ., 18 November 1997, LawLex202300003550JBJ.

Cass. 1re civ., 20 February 2001, LawLex202300003586JBJ.

Cass. 2e civ., 4 October 2001, LawLex202200010316JBJ; Cass. 1re civ., 15 July 1999, LawLex202300003565JBJ, emphasizing that it cannot take any measure that would render the debtor's share unavailable.

Cass. 1re civ., 6 November 2001, LawLex202300003554JBJ.

Cass. 1re civ., 20 November 1990, LawLex202300003557JBJ.

Cass. 3e civ., 2 November 1983, LawLex202300003561JBJ.

Cass. 1re civ., 13 December 2005, LawLex202100001638JBJ; Cass. com., 7 February 2012, LawLex202100001640JBJ.

Cass. com., 18 February 2003, LawLex202100002248JBJ.

Cass. com., 16 November 2010, LawLex202100002137JBJ.

5. Civil Enforcement Procedures

34. Seizable assets and claims

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

34. Seizable assets and claims

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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