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

Any creditor holding a writ of execution evidencing a liquid and due claim may, after service of an order, proceed with the seizure and sale of tangible movable property belonging to the debtor, whether or not held by the latter . The seizure and sale procedure, which applies to all seizable tangible movable property belonging to the debtor even if they have been previously seized as a protective  …

Seizure and sale procedure

Any creditor holding a writ of execution evidencing a liquid and due claim may, after service of an order, proceed with the seizure and sale of tangible movable property belonging to the debtor, whether or not held by the latter . The seizure and sale procedure, which applies to all seizable tangible movable property belonging to the debtor even if they have been previously seized as a protective measure , is organized in three stages that generally reflect the legislator's intention to favor an amicable solution rather than the forced sale of the debtor's property.

First, the creditor has a judicial commissioner serve the debtor with a demand to pay for the purpose of seizure and sale, the service of which initiates the parties into the enforcement phase of the proceedings. This document must contain, on pain of invalidity, the mention of the writ of execution, even provisional , by virtue of which the proceedings are initiated , with a separate breakdown of the amounts claimed in principal, costs, and accrued interest, as well as the indication of the interest rate and a demand to pay the debt within eight days, failing which the debtor may be compelled by the forced sale of their movable property . In case of any discrepancy, even apparent, between the amount of the debt and the amount claimed, the demand to pay remains valid for the uncontested part of the debt . The demand to pay initiates the enforcement measure  but does not constitute an act of enforcement, falling under the category of acts reserved for the exclusive competence of the judicial commissioner. It may therefore be served by a sworn clerk of the commissioner . According to Article R. 221-4 of the Code of Civil Enforcement Procedures, the demand to pay cannot be served at an elected domicile. However, it can be delivered in the act of service of the judgment that grounds the claim. The demand for seizure and sale interrupts the limitation period of the claim that the measure seeks to recover .

Seizure operations can only begin after the expiration of a period of eight days from the service of the order to pay  and must be initiated within a period of two years, failing which the creditor must serve a new order . The seizure can be carried out anywhere the debtor's movable property is located, even if held by a third party . Different rules apply depending on whether the seizure is executed in the hands of the debtor or the third party holding the debtor's property.

When the seizure is carried out in the debtor's presence, the judicial commissioner verbally reiterates the payment request to the debtor before any seizure operation and informs them that they must disclose any assets previously seized . In the absence of spontaneous payment of the debt, the judicial commissioner inventories the assets present on the premises. If necessary, they may photograph the seized items . If cash is found on the premises, it may be seized up to the amount of the creditor's claim and held by the judicial commissioner. If no objection is raised within one month from the service of the seizure document, these amounts are immediately paid to the creditor and deducted from the claimed amounts . If no assets are liable to be seized or if no assets have any market value, the judicial commissioner draws up a report of deficiency . Otherwise, the seizure document must, on pain of invalidity, include, in addition to the reference to the title under which the seizure is carried out: an inventory of the seized assets with a detailed description ; the debtor's statement regarding any prior seizure of the same assets; a very conspicuous notice that the seized assets are unavailable, placed under the debtor's custody, and cannot be alienated or moved under penalty of criminal sanctions, and that the debtor must inform any creditor attempting a new seizure of the same assets; a very conspicuous indication that the debtor has one month to proceed with the amicable sale of the seized assets; the designation of the court before which disputes related to the seizure-sale must be brought; the names, first names, and capacities of the persons who attended the seizure operations, and their signatures . When the debtor is present during the seizure operations, the judicial commissioner verbally states the obligations imposed on them due to the unavailability of the seized assets: their placement under their custody , the prohibition to alienate or move them  under penalty of criminal sanctions; and the obligation to inform any new seizing party of the seizure in question. They also inform them of the option to proceed with the amicable sale of the seized assets under the conditions prescribed in Articles R. 221-30 to R. 221-32. These statements are recorded in the document, a copy of which is immediately given to them. This delivery constitutes service . Conversely, if the debtor did not attend the seizure operations, a copy of the document must be served to them, giving them eight days to inform the judicial commissioner of any prior seizure . Finally, the judicial commissioner who carried out the seizure must consult the register of movable securities provided for in Article R. 521-1 of the Commercial Code and serve the seizure report within eight days of its establishment to creditors holding a published security on these assets . This information aims to guarantee the rights of pledge holders without dispossession who have published their security to allow them to participate in distributions and assert their right of preference.

When the debtor's assets are held by a third party, under any title, the judicial commissioner may, upon presentation of the order to pay served on the debtor and after the expiration of eight days from its date, carry out the seizure in the hands of this third party. The commissioner must invite the third party to declare the assets they hold on behalf of the debtor and, among these, those that have been subject to a prior seizure. In case of refusal to declare or inaccurate or false declaration, the third party is liable for the costs of the seizure and/or damages . If the third party declares holding no assets belonging to the debtor or refuses to respond, a record is made, which is delivered or served to them with a very conspicuous indication of the penalty incurred. Conversely, when the third party declares holding assets on behalf of the debtor, the seizure document must, on pain of invalidity, contain: the reference to the writ under which the seizure is carried out; the name and domicile of the third party; the third party's declaration and, in very conspicuous characters, the indication that any inaccurate or false declaration exposes them to being declared liable for the amounts claimed from the debtor without prejudice to a damages award; the inventory of seized assets with a detailed description; the mention, in very conspicuous characters, that the seized items are unavailable, placed under the third party's custody, and cannot be alienated or moved under penalty of criminal sanctions, and that they must inform any creditor who would seize the same assets; the mention that they may refuse custody of the seized assets; the indication that they may assert their rights over the seized assets , by declaration or by registered letter with acknowledgment of receipt addressed to the creditor's judicial commissioner; the designation of the court before which disputes related to the seizure and sale must be brought; the names, first names, and capacities of the persons who attended the seizure operations, with their signature; the reproduction of the provisions of Article 314-6 of the Criminal Code. If the third party is present at the seizure operations, the judicial commissioner verbally reminds them of the obligations arising from the unavailability of the seized assets and their ability to refuse custody of the assets . This declaration is included in the document, a copy of which is provided to that party . This delivery constitutes service. Conversely, if the third party is absent, the copy of the seizure and sale document is served to them, giving them a period of eight days to inform the judicial commissioner of any prior seizure on the same assets and to communicate the report . On pain of lapse, a copy of the document must be served to the debtor no later than eight days after the seizure. On pain of invalidity, it is indicated to the debtor that they have a period of one month to proceed with the amicable sale of the assets seized at the third party's premises .

During the seizure, the debtor is strongly encouraged to favor an amicable sale of their assets over a forced sale. This solution is favored by the legislator because it is likely to guarantee a better price for the seller, and consequently, better chances for the creditor to be satisfied with their rights than if the assets were sold at auction at a reduced price and under much more restrictive formalities. This subsidiarity of the forced sale compared to the amicable sale is expressed in Article L. 221-3, which provides that the auction can only take place “after a period of one month from the day of the seizure during which the debtor can proceed with an amicable sale.”

The debtor against whom a compulsory enforcement measure is pursued may voluntarily sell the seized assets to allocate the proceeds to the payment of creditors . Pursuant to Article R. 221-30, the debtor has a period of one month from the notification of the seizure act to proceed with the sale of the seized assets. The debtor must inform the judicial commissioner in charge of the enforcement of the offers made to him . This information, provided in writing, must include the name and address of the potential buyer as well as the time frame within which the latter proposes to pay the offered price. The judicial commissioner forwards these details to the seizing creditor and opposing creditors by registered letter with acknowledgment of receipt. He also communicates them to creditors holding a published security by registered letter with acknowledgment of receipt. Each creditor has a period of fifteen days from receipt of the letter to take a position on the amicable sale proposals. In the absence of a response, they are deemed to have accepted. Each creditor holding a published security must also, within the same period, inform the judicial commissioner of the nature and amount of their claim, failing which they lose the right to participate in the distribution of the funds resulting from the amicable sale, except to assert their rights on any balance after distribution.

If the creditors accept the purchaser's proposal, the latter must deposit the sale price within the agreed time frame  with the judicial commissioner of the seizing creditor, who issues a receipt. The transfer of ownership and delivery of the goods are contingent upon payment of the price. Upon proof of this payment, the security registrations taken on the sold goods on behalf of the seized debtor are canceled .

If a creditor refuses the proposal(s), establishing that they are insufficient, the judicial commissioner must proceed with the removal of the goods so that they can be sold at public auction. The creditor's liability cannot be sought unless their refusal to authorize the sale is motivated by an intent to harm the debtor . The forced sale is also required when the sale has been agreed upon, in the absence of payment of the price within the agreed time .

In the absence of an amicable sale, a forced sale can only proceed after the expiration of the one-month period provided for in Article R. 221-30, extended if necessary by the fifteen-day period granted to creditors to provide their response .

The sale is conducted at public auction, at the choice of the seizing creditor, either at the location where the seized items are found, or in an auction room or any other public place whose geographical location is most appropriate to solicit competition at minimal cost . The publicity of the sale is carried out by posters indicating the place, day, and time of the sale and the nature of the seized goods. The posters are displayed at the town hall of the municipality where the seized debtor resides and at the place of the sale. This mandatory publicity must be carried out at least eight days before the scheduled date of the sale. The sale may also be announced in the press . The debtor is informed by the judicial commissioner of the place, day, and time of the sale, at least eight days before its date, by simple letter or by any appropriate means . These publicity formalities are not prescribed under penalty of invalidity . Furthermore, since 1 January 2023, the seizing creditor who arranges for the removal of the goods for the purpose of their forced sale must inform, by registered letter with acknowledgment of receipt, the creditors holding a published security on the same goods. Under penalty of invalidity, this letter indicates the name and address of the ministerial officer in charge of the sale and reproduces in very conspicuous characters the statement that each creditor, within fifteen days from receipt of the letter, must inform the ministerial officer in charge of the sale of the nature and amount of their claim on the day of removal, failing which, they lose the right to participate in the distribution of the proceeds from the forced sale, except to assert their rights on any balance after distribution .

The sale is conducted by a ministerial officer authorized by their status to carry out public auctions of tangible movable property and, in cases provided by law, by sworn commodity brokers . Before the operations, the officer must verify the consistency and nature of the seized goods, if necessary using photographs taken by the judicial commissioner during the seizure operations, and record this in a document. Only missing items and those that have been damaged are mentioned .

The adjudication is made to the highest bidder, after three calls . No text or jurisprudential rule allows the provisions relating to real estate seizures or auctions conducted in insolvency proceedings to be transposed to the seizure and sale of tangible movable property; thus, the existence of a family relationship between the adjudicatee and the manager of the seized debtor does not constitute grounds for invalidity of the adjudication . The price is payable in cash. In the event of non-payment by the adjudicatee, the item is resold upon reiteration of the auction. As highlighted by the Court of Cassation, the sale at the adjudicatee's default auction obliges the latter to pay the difference between the adjudication price of the property and its resale price . The agent in charge of the sale halts operations when the price of the sold goods reaches an amount sufficient to pay, in principal, interest, and costs, the seizing and opposing creditors. They are responsible for representing the adjudication price . Finally, the act of sale is drawn up, containing the designation of the sold goods, the adjudication amount, and the declared statement of the adjudicatees' names and surnames. An extract of the registrations in the register mentioned in Article R. 521-1 of the Commercial Code, raised pursuant to Article R.221-14-1, is annexed. Lastly, upon proof of payment of the price, the security registrations taken on the sold goods on behalf of the seized debtor are canceled .

CPC exéc., Art. R. 221-6. In such a case, the text specifies that Articles R. 522-12 to R. 522-14 apply.

CPC exéc., Art. R. 221-5. For an illustration, See Cass. 2e civ., 16 March 2017, LawLex202300003895JBJ, highlighting that the first order is without effect, but not formally void, as the text does not provide for such a consequence.

Cass. 2e civ., 30 September 1999, LawLex202300003123JBJ, upholding the annulment of a seizure and sale report that only referred to the seizure of “a collection of books (five hundred units)” without a detailed description of the seized goods. Cf., Cass. 2e civ., 30 September 1999, LawLex202300003124JBJ, holding that the mere registration numbers of vehicles appearing on the copy of the seizure report given to the debtor are sufficient to allow them to easily and without hesitation identify the seized goods.

CA Aix-en-Provence, 27 June 2019, LawLex202300005480JBJ, specifying that the absence of the signature of the employee of the debtor company who attended the operations on the seizure and sale report does not affect its validity.

As highlighted in Art. R. 221-19, the debtor retains the use of the assets made unavailable by the seizure. However, if the seizing creditor has concerns about the debtor's good faith, they may request the enforcement judge, seized on application, to order the delivery of one or more items to a custodian they designate. Similarly, if among the seized assets there is a motor vehicle, it may be immobilized until its removal for sale.

Art. R. 221-13, para. 2, however, specifies that if a legitimate reason makes the relocation of the goods necessary, the custodian is required to inform the creditor in advance and indicate the place where they will be placed.

Cass. 2e civ., 28 January 1998, LawLex202300001386JBJ, admitting the writ of execution constituted by an interim order that allocates an advance to the creditor of an obligation.

CPC exéc., Art. R. 221-14-1, from Decree No 2021-1888 of 29 December 2021, Art. 2, in force since 1 January 2023.

Art. R. 221-29 specifies that if a third party claims a right of retention over the seized property, they may declare it at the time of seizure or inform the judicial commissioner by registered letter with acknowledgment of receipt. Within a month, the seizing creditor may contest this right of retention before the enforcement judge of the place where the third party resides. The property remains unavailable during the proceedings. If there is no contestation within the one-month period, the third party's claim is deemed valid for the purposes of the seizure.

Art. R. 221-27 specifies that in such a case, the judicial commissioner appoints a custodian and arranges for the removal of the goods.

Cass. 2e civ., 11 September 2003, LawLex202300004069JBJ, considering that a confirmatory decision, which does not give rise to restitution, does not constitute an enforceable title authorizing the implementation of a seizure and sale procedure.

Cass. 2e civ., 21 January 1999, LawLex202300007982JBJ, holding that the potential purchaser who offers to immediately deposit the sale price must do so at the expiration of the one-month period, increased by the 15-day period granted to the creditor to take a position on the amicable sale, without waiting for notification of an absence of opposition from the creditors.

CPC exéc., Art. L. 221-3, paras. 3 and 4.

Cass. 2e civ., 30 April 2002, LawLex202300003901JBJ.

Cass. 1re civ., 12 September 2019, LawLex202300003902JBJ.

Cass. 2e civ., 12 June 2003, LawLex202300008569JBJ.

Cass. 3e civ., 5 February 1992, LawLex202400003636JBJ.

Cass. 2e civ., 16 December 1998, LawLex202200011337JBJ.

Cass. 2e civ., 13 May 2015, LawLex202300000409JBJ.

CPC exéc., Art. R. 221-5. - For applications, see Cass. 2e civ., 13 May 2015, LawLex202200010307JBJ; 12 May 2016, LawLex202300003898JBJ; CA Rennes, 3 December 2021, LawLex202300006022JBJ.

5. Civil Enforcement Procedures

128. Seizure and sale procedure

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128. Seizure and sale procedure

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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