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

Just like seizure for delivery of tangible movables, the ultimate purpose of claim-based seizure is to obtain the delivery or return of tangible movable property, not its sale. However, unlike the former, it first aims to render the property temporarily unavailable while obtaining a writ of execution, before subsequently implementing a seizure for delivery of tangible movables procedure. In this r …

Effects and application for release

Just like seizure for delivery of tangible movables, the ultimate purpose of claim-based seizure is to obtain the delivery or return of tangible movable property, not its sale. However, unlike the former, it first aims to render the property temporarily unavailable while obtaining a writ of execution, before subsequently implementing a seizure for delivery of tangible movables procedure. In this respect, it has the nature of an interim protective measure.

Pursuant to Article L. 222-2 of the Code of Civil Enforcement Procedures, any person apparently entitled to request the delivery or return of tangible movable property may, pending its return, render it unavailable through a claim-based seizure. The role of the enforcement judge is limited, in this context, to verifying whether there is an appearance, or a principle of property right in favor of the applicant, and whether the contested property is at risk of disappearing . The claim-based seizure procedure cannot be used to obtain a copy of documents whose originals have already been returned to the applicant, as these copies have never been in their possession .

The procedure begins with an application to the enforcement judge of the place where the debtor resides, by way of a motion, to obtain prior authorization. The order granting authorization designates the property that may be seized as well as the identity of the person required to deliver or return it. This authorization is enforceable against any holder of the designated property , even if they are not the person targeted by the order. The validity of the procedure is subject to compliance with the conditions applicable to interim protective measures. In fact, the judge's authorization is deemed to lapse if the measure has not been executed within three months from the order . Furthermore, within one month following the execution of the measure, the creditor must, on pain of lapse, initiate proceedings or complete the formalities necessary to obtain a writ of execution . Finally, when the measure is carried out by a third party, the creditor must serve them with a copy of the documents attesting to the steps taken to obtain a writ of execution within eight days from their date, failing which the measure is deemed to lapse . If these conditions are not met, the release of the seizure may be ordered at any time by the judge who authorized the seizure. The release decision takes effect from the day of its notification .

Upon presentation of the court's authorization or a writ of execution, a claim-based seizure is carried out at any location and by any person holding the property. If the seizure is conducted in premises used as the residence of a third-party holder of the property, a special authorization from the court is required . The judicial commissioner must first remind the holder of the property that they are required to inform him if the property has been subject to a prior seizure and, if applicable, to provide him with the report. He then draws up the seizure document, which, on pain of invalidity, must contain: reference to the court's authorization or the writ under which the seizure is carried out; the detailed designation of the seized property; if the holder is present, their statement regarding any prior seizure on the same property; the mention, in very conspicuous characters, that the seized property is placed under the custody of the holder, who may neither dispose of nor move it, under penalty of criminal sanctions, and that they are required to disclose the claim-based seizure to any creditor who would proceed with a seizure on the same property; the mention, in very conspicuous characters, of the right to contest the validity of the seizure and to request its release from the competent court, as well as the designation of the jurisdiction before which disputes related to the execution of the seizure must be brought.

The judicial commissioner must then deliver this seizure document to the holder, verbally reminding them of the obligations imposed on them due to the unavailability of the property and their right to contest. This is included in the document. If the seizure was carried out against a third-party holder of the property, the document must also, under penalty of lapse, be served to the debtor within a maximum period of eight days. A copy of the document bearing the same signatures as the original is immediately given to the holder of the property. This delivery constitutes service. When the latter did not attend the seizure operations, a copy of the document must be served to them, and they must be given a period of eight days to inform the judicial commissioner of any information regarding the existence of a possible prior seizure and to communicate the report .

If the holder of the property is appointed as the custodian, the creditor who has concerns about a possible misappropriation of the item may at any time request the enforcement judge to authorize the delivery of the property to a sequestrator they designate .

The holder who claims a personal right over the seized property must inform the judicial commissioner by registered letter with acknowledgment of receipt unless they have made the declaration at the time of the seizure. Within one month, the seizing party must bring the dispute before the enforcement judge of the place where the holder resides , failing which, the unavailability ceases. The property remains unavailable during the proceedings .

Finally, once the creditor has obtained a writ of execution ordering the delivery or return of the seized property, they may initiate a seizure for delivery of tangible movables procedure to obtain its return under the conditions provided in Articles R. 222-2 to R. 222-10.

CA Paris, 5 January 2006, LawLex202300002135JBJ, action by the lessor of a stolen vehicle, who demonstrates their ownership right by producing a purchase invoice and the registration certificate issued in their name; CA Orléans, 2 February 2006, LawLex202300002136JBJ; Paris, 18 September 2014, LawLex202300008602JBJ, ordering the release of the claim-based seizure carried out by a religious association that does not prove it owns the seized bells and is entitled to request their delivery. Also see Cass. 2e civ., 29 March 1995, LawLex202300001972JBJ, holding that any member of the same family may be considered as apparently holding a right to preserve family mementos in the interest of the family; Cass. com., 16 September 2014, LawLex202300001970JBJ and 15 December 2015, LawLex202300001971JBJ, considering that while special provisions govern the protective seizure and enforcement seizure of ships, none exclude the possibility of their claim-based seizure under ordinary law conditions. It follows that the lessor, who, having invoked the termination clause of the lease contract for non-payment of rent, is apparently entitled to obtain the return of their property; Cass. 2e civ., 17 October 2013, LawLex202300008650JBJ, approving the release of a claim-based seizure of wheat, in the absence of apparent right to delivery claimed by the seizing creditor.

CA Paris, 21 December 2006, LawLex202300002133JBJ.

CA Toulouse, 20 March 2009, LawLex202300007703JBJ.

CPC exéc., Art. R. 511-6, by reference to Art. R. 222-18, para. 1.

CPC exéc., Art. R. 511-7, by reference to Art. R. 222-18, para. 1. For an illustration, ordering the release of the seizure due to the plaintiff's default, CA Paris, 21 December 2006, LawLex202300002133JBJ.

CPC exéc., Art. R. 511-8, on referral from Art. R. 222-18, para. 1. For an example of such sanction, see  CA Versailles, 22 May 2014, LawLex202300008672JBJ.

CPC exéc., Art. R. 222-18, para. 2 et seq.

5. Civil Enforcement Procedures

137. Effects and application for release

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

137. Effects and application for release

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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