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

A creditor cannot automatically carry out a seizure and sale in a debtor's residential premises to recover a non-alimentary claim less than EUR 535 in principal. In such cases, Articles L. 221-2 and R. 221-2 establish a principle of subsidiarity for seizure and sale, whereby it is important to limit the recovery costs borne by the debtor when the principal of the claim in question is relatively mo …

Principle of subsidiarity

A creditor cannot automatically carry out a seizure and sale in a debtor's residential premises to recover a non-alimentary claim less than EUR 535 in principal. In such cases, Articles L. 221-2 and R. 221-2 establish a principle of subsidiarity for seizure and sale, whereby it is important to limit the recovery costs borne by the debtor when the principal of the claim in question is relatively modest. Other compulsory enforcement measures, less intrusive and costly than the seizure and sale procedure, must be prioritized unless authorized by the enforcement judge upon application. The text specifically targets procedures for seizing a deposit account or work-related earnings. Only when it is impossible to resort to these alternative measures can seizure and sale be carried out in residential premises, which include both primary residences and secondary homes , with the prior authorization of the enforcement judge.

To facilitate the use of these alternative procedures, the order to pay served on the debtor must include, on pain of invalidity , in addition to the mention of the writ of execution and the order to pay, an injunction to disclose to the judicial commissioner of the pursuing creditor, within eight days, the name and address of their employer and the details of their bank accounts or just one of these two elements . According to the Court of Cassation, seized for an opinion, the debtor's failure to respond to the injunction to disclose the information necessary for a less invasive seizure does not automatically defeat the principle of subsidiarity. In other words, it does not make it possible solely on this basis to implement a seizure and sale , especially without the prior authorization of the enforcement judge . The judicial commissioner mandated by the creditor faced with a lack of response must indeed conduct the search for the information in question by contacting the relevant administrations  or consulting the Ficoba bank account file , and demonstrate, if necessary, that none of the alternative procedures can be implemented .

When a seizure and sale has been carried out without the authorization of the enforcement judge for an amount less than 535 EUR, due to the payment of a deposit by the debtor, the costs of the order to pay, which are unjustified, must be borne by the judicial commissioner . However, unless otherwise agreed, payments made are applied first to the costs incurred by the creditor for the recovery of their claim, which are ancillary, and only thereafter to the principal .

Cass. 2e civ., 18 June 2009, LawLex202200010744JBJ.

For an illustration, CA Nancy, 14 March 2016, LawLex202300004853JBJ.

Cass. civ., 8 December 1995, LawLex202300000532JBJ.

See CA Rennes, 2 June 1995, LawLex202400007986JBJ.

CPC exéc., Art. L. 152-2. - Add: Cass. 2e civ., 18 June 2009, LawLex202200010744JBJ, aforementioned, considering the implementation of a seizure and sale abusive when the means of payment used by the debtor sufficiently informs the creditor and the judicial commissioner about the existence of a bank account and its main address.

CA Douai, 22 December 1994, LawLex202400008731JBJ; CA Rennes, 30 June 1995, LawLex202400007987JBJ. Similarly, CA Nancy, 14 March 2016, LawLex202300004853JBJ, considering that the creditor who has carried out an unsuccessful seizure - apprehension of the bank accounts of their debtor must demonstrate that recovery is also impossible through a seizure of work-related earnings. Contra, CA Angers, 11 July 1995, LawLex202400007985JBJ, considering that the debtor's silence serves as proof of the impossibility of implementing other measures.

Cass. 2e civ., 5 May 2011, LawLex202300004212JBJ.

Cass. 2e civ., 19 February 2009, LawLex202400008738JBJ.

5. Civil Enforcement Procedures

129. Principle of subsidiarity

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Les notions juridiques connexes

129. Principle of subsidiarity

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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