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

When the debtor's assets have been placed in a safe belonging to a third party, whether a banker, a hotel establishment, or even a jeweler, the Code of Civil Enforcement Procedures provides two compulsory enforcement measures specifically adapted to this situation: seizure and sale, for monetary creditors, and seizure for delivery, for owners. In both cases, the order to pay or deliver is served o …

Safe belonging to a third party

When the debtor's assets have been placed in a safe belonging to a third party, whether a banker, a hotel establishment, or even a jeweler, the Code of Civil Enforcement Procedures provides two compulsory enforcement measures specifically adapted to this situation: seizure and sale, for monetary creditors, and seizure for delivery, for owners. In both cases, the order to pay or deliver is served only after the seizure, which has the advantage of preventing any attempt by the unscrupulous debtor to divert the assets in question.

Until very recently, the scope of the seizure procedure organized by the Code of Civil Enforcement Procedures was significantly limited by the obstacle of banking secrecy. Indeed, there was no way to compel a bank to disclose the existence of a safe deposit box rental contract concluded with one of its clients. Order ECOT2010494A of 24 April 2020  addressed this significant difficulty. Judicial commissioners can now become aware, by consulting the computerized bank account file (Ficoba), of the existence of any safe deposit box rental contract concluded by a credit institution, whose declaration has been required since 1 September 2020 for contracts concluded since the adoption of the order and no later than 31 December 2024 for those concluded previously. The seizure and sale procedure of goods placed in a safe deposit box takes place in several stages, which are characterized, compared to ordinary law seizure and sale, by having the seizure itself precede the order to pay, in order to maintain the element of surprise.

The procedure begins with the service of a judicial commissioner's document to its owner. On pain of invalidity, the seizure document must specify the name and domicile of the debtor and, if it is a legal entity, its name and registered office, refer to the writ by virtue of which the seizure is carried out, and contain an injunction prohibiting any access to the safe, except in the presence of the judicial commissioner. The third party is required to provide the identification of the safe to the latter, so that it can be mentioned in the document .

If the seizure itself is sufficient to render the contents of the safe unavailable, which can only be opened in the presence of the judicial commissioner, the latter may, pursuant to Article R. 224-2 of the Code of Civil Enforcement Procedures, enhance the scope of the injunction made to the third-party owner by placing seals on the safe.

When the proceedings aim at the sale of the goods placed in the safe, the judicial commissioner must serve the debtor, who is unaware of the measure taken with a third party, with an order to pay on the first working day following the seizure act. The order must, on pain of invalidity, contain the notification of the seizure act, mention the writ of execution under which the proceedings are conducted, and provide a separate breakdown of the amounts claimed in principal, costs, and accrued interest, as well as the indication of the interest rate. It must also contain an order to pay the debt before the date set for the opening of the safe, or to attend, in person or by proxy, its opening for the purpose of seizing the goods therein, with the warning that in case of absence or refusal to open, the safe will be opened by force and at their expense. The act must also indicate the place, day, and time set for the opening of the safe and designate the enforcement judge of the place where the seized goods are located, before whom any disputes must be brought. The order may be served in the act of service of the judgment .

It cannot take place before the expiration of a period of fifteen days from the service of the order to pay , although the debtor may request that it occur at an earlier date. In the absence of the latter, the forced opening of the safe can only occur in the presence of its owner or their duly authorized agent. The costs of the measure, particularly when force is necessary due to the absence of the debtor, must be advanced by the seizing creditor .

On the specified day, the judicial commissioner is required to draw up a detailed inventory of the items present in the safe. If the debtor is present, the inventory may be limited to the seized items. These are then immediately removed to be placed under the custody of the judicial commissioner or a sequestrator appointed, in the absence of an amicable agreement, by the enforcement judge seized on application. If, however, the debtor is absent, the judicial commissioner is required to inventory all the items contained in the safe. He immediately removes the seized items and hands over the others to the third party who has custody of the safe or to a sequestrator appointed on application by the enforcement judge, with the obligation to present them upon simple request of the debtor. If necessary, the judicial commissioner may photograph the items removed from the safe for the purpose of verifying the seized items. These photographs may, in accordance with Article R. 221-12, only be disclosed in the event of a dispute brought before the judge .

The judicial commissioner must draw up a record of the operations. On pain of invalidity, it must include the names, first names, and capacities of the persons who attended the operations and those to whom the goods were delivered, who shall affix their signature on the original and the copies. In case of refusal, this is noted in the record .

From the removal of the goods, the debtor regains free access to the safe .

A copy of the inventory must be delivered or served to the debtor and, where applicable, to the persons to whom the goods have been delivered. On pain of invalidity, this copy must state the place where the seized goods are deposited and, in very conspicuous characters, the debtor's option, within a period of one month, to proceed with their amicable sale, under the conditions provided for in Articles R. 221-30 to R. 221-32, which are reproduced, as well as the date from which, failing an amicable sale, a forced sale may be carried out . The forced sale takes place according to the procedure provided for in Articles R. 221-33 to R. 221-39. The incidents of the seizure are governed by the provisions of Articles R. 221-40 to R. 221-56 .

2) Seizure for restitution of tangible movables (saisie-appréhension)

When the procedure is aimed not at the seizure of goods for sale, but at their recovery for delivery to a third party, an order to deliver or return must be served on the person required to make the delivery on the first business day following the seizure act provided for in Article R. 224-1.

The order must, on pain of invalidity, contain: the notification of the act of seizure; the mention of the writ of execution by virtue of which the delivery is required; the precise designation of the claimed goods; an order to deliver the claimed goods before the date set for the opening of the safe or to attend, in person or by proxy, its opening for the purpose of removing the goods with the warning that in case of absence or refusal to open, the safe will be opened by force at their expense; the indication of the place, day, and time set for the opening of the safe; the designation of the enforcement judge of the place where the seized goods are located before whom any disputes must be brought. This order may be served in the act of service of the judgment .

The conditions for opening the safe and drawing up an inventory provided for in the context of seizure and sale of the contents of the safe are also applicable to seizure for delivery . As in the case of seizure and sale, the person required to surrender regains free access to the safe after the removal of the goods . A copy of the inventory must be delivered or served to the debtor and, where applicable, to the persons to whom goods have been delivered. Still under penalty of invalidity, the copy delivered or served to the debtor states that the goods have been delivered to the person designated in the writ of execution or to their representative, whose identity is specified .

Cf. the eight-day period applicable in the context of an ordinary law seizure and sale pursuant to Article R. 221-1 CPC exéc.

5. Civil Enforcement Procedures

134. Safe belonging to a third party

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Les notions juridiques connexes

134. Safe belonging to a third party

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Les notions juridiques connexes

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