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

Article L. 211-1 of the Code of Civil Enforcement Procedures offers any creditor with a writ of execution evidencing a liquid and payable claim the possibility, to obtain payment, to seize the monetary claims of their debtor in the hands of a third party. The procedure for the seizure of monetary claims is a preferred enforcement measure by creditors due to its simplicity of implementation. Indeed …

Implementation of seizure and challenges

Article L. 211-1 of the Code of Civil Enforcement Procedures offers any creditor with a writ of execution evidencing a liquid and payable claim the possibility, to obtain payment, to seize the monetary claims of their debtor in the hands of a third party. The procedure for the seizure of monetary claims is a preferred enforcement measure by creditors due to its simplicity of implementation. Indeed, unless contested, the procedure proceeds without the need to resort to the court, spares the creditor the burden of a sale, and allows them to avoid, in many cases, any competition with other creditors of the debtor. Like any compulsory enforcement procedure, it requires the creditor to justify a writ of execution evidencing a liquid and payable claim against the principal debtor ("claim cause" of the seizure), but also that the seized debtor is themselves a creditor of monetary sums from a third party ("claim object" of the seizure), referred to as the garnishee, with whom the measure is executed. More exceptionally, the creditor can assume the role of garnishee when they are themselves a debtor of the debtor: rather than using the mechanism of legal set-off, whose conditions are not always met, the creditor will perform a “self-seizure.” Regardless of the number of participants, the procedure for the seizure of monetary sums unfolds in several stages.

First, the creditor proceeds with the seizure (saisie-attribution) through act of judicial commissioner served to the third party. Pursuant to Article R. 211-1 of the Code of Civil Enforcement Procedures, the act of seizure must, on pain of invalidity, contain: the name and domicile of the debtor or, if it is a legal entity, its name and registered office; the statement of the writ of execution by virtue of which the seizure is carried out; the separate breakdown of the amounts claimed in principal, costs, and accrued interest , increased by a provision for interest to accrue within the one-month period provided for raising a challenge; the indication that the third party seized is personally liable to the seizing creditor and is prohibited from disposing of the amounts claimed within the limit of what is owed to the debtor; and the reproduction of the first paragraph of Article L. 211-2, Article L. 211-3, the third paragraph of Article L. 211-4, and Articles R. 211-5 and R. 211-11. It must also indicate the time at which it was served.

Pursuant to Article L. 211-2, the act of seizure entails, up to the amounts for which it is executed, the immediate allocation to the seizing creditor of the seized claim, available in the hands of the third party as well as all its ancillary rights. It makes the third party personally liable for the causes of the seizure within the limit of their obligation. The seizure thus instantly transfers the debtor's claim against the third party into the creditor's assets and correspondingly removes it from the debtor's assets. When executed before the opening of insolvency proceedings against the seized debtor, it allows the creditor to escape the requirements of the proceedings . Similarly, under para. 2 of Article L. 211-2, the subsequent notification of other seizures or any other collection measure, even if initiated by privileged creditors, does not affect this allocation. The first seizing creditor thus has absolute priority, even over higher-ranking creditors. This is only different if the creditor's seizure is notified on the same day as other seizures by other creditors, in which case para. 3 of the text provides that these seizures are deemed to have been carried out simultaneously and, if the available amounts do not allow for the full satisfaction of all seizing creditors, they share pro rata. The Court of Cassation, when consulted, specified that such sharing is settled proportionally to the respective claims, without considering the existence of any privileges . Immediate allocation of the claim, however, does not equate to its payment. Further steps must still be taken to obtain payment.

The service of the seizure requires the garnishee to immediately provide the judicial commissioner, unless there is a legitimate reason , with the information specified in Article L. 211-3 regarding the extent of their obligations towards the debtor, as well as any conditions that might affect them, and, if applicable, any prior assignments of claims, delegations, pledges, or seizures, and to disclose the supporting documents. This declaration is mentioned in the seizure document . The garnishee who, without legitimate reason , fails to provide the required information must be ordered, at the creditor's request, to pay the amounts owed to the latter without prejudice to their recourse against the debtor . A late response , or lack of response  from the garnishee exposes them to pay the causes of the seizure-attribution when this behavior is not justified by a legitimate reason. The same applies when the garnishee informs the judicial commissioner that a response will be provided later, without justification for this . In the event of negligent misconduct or inaccurate or false declaration, they may be ordered to pay damages , provided that the creditor demonstrates the existence of the resulting harm . These penalties are not incurred when it appears that on the day of the seizure, the debtor is not a creditor of the garnishee  or if the measure is subsequently annulled or declared void .

Then, Article R. 211-3 requires the creditor to notify the debtor of the seizure within eight days by an act of a judicial commissioner, under penalty of lapse. The act must specify, in particular, that any challenge must be raised, under penalty of inadmissibility, within one month following the service of the act by writ of summons, and the court before which the challenges can be brought. It informs the debtor that they may authorize in writing the creditor to have the sums owed to them immediately handed over by the garnishee. 

Finally, in the absence of a challenge raised within one month of the notification, or if the debtor has declared in writing not to contest the seizure before this deadline , the garnishee proceeds with the payment upon presentation of a certificate issued by the court registry or prepared by the judicial commissioner who carried out the seizure, certifying that no challenge has been made. Within the limit of the amounts paid, this payment extinguishes the obligation of the debtor and that of the garnishee, and the creditor must provide a receipt to the garnishee and inform the debtor .

In the event of a dispute raised within one month, either by the seized debtor, the third party debtor, or other creditors, the enforcement judge of the debtor's place of residence is seized . According to Article L. 211-5, the dispute has the effect of deferring payment, unless the judge authorizes a partial payment for the amount he determines, concerning the uncontested amounts . On pain of inadmissibility, the dispute must be notified on the same day or, at the latest, the next working day, by registered letter with acknowledgment of receipt, to the judicial commissioner who carried out the seizure, and by simple letter, to the third party debtor. A copy of the writ of summons must also, on pain of its lapse, be submitted to the registry of the enforcement judge no later than the day of the hearing. If the dispute is upheld, the seizure is annulled. However, if it is rejected, the third party debtor must pay the creditor upon presentation of the judge's decision .

These rules are subject to adjustments when the claim subject to the seizure is a claim for successive performance or when the seizure is executed on a bank account.

In the first case, the creditor does not need to renew the measure at each due date. Moreover, in the absence of a challenge, the garnishee releases funds, as the installments become due and upon presentation of the certificate of non-challenge, into the hands of the seizing creditor who issues a receipt and informs the debtor . However, in the event of a challenge, the payment of due claims must be deposited with a trustee. If the sequestered amounts are sufficient to satisfy the creditor, the enforcement judge orders the release of the seizure . An obligation to inform is imposed on the parties when one of the two claims - cause or object - is extinguished by the payments made. Thus, the extinction of the cause claim requires the creditor to inform the garnishee by registered letter. Conversely, the extinction of the object claim requires the garnishee to inform the seizing party in the same manner .

In the second case, Article L. 162-1 of the Code of Civil Enforcement Procedures requires the bank to declare the balance of the debtor's account(s) on the day of the seizure. The text provides that the declared balance may, within fifteen working days from the seizure, be affected to the advantage or detriment of the seizing party by a number of operations , if it is proven that their date is prior to the seizure. Thus, credits must account for deposits made earlier, for the collection of checks or commercial paper not yet credited to the account. Debits may include checks submitted for collection or credited to the account before the seizure and returned unpaid, as well as ATM withdrawals made before the seizure and card payments, provided their beneficiaries were effectively credited before the seizure.

By exception, commercial paper submitted for discounting and unpaid at presentation or maturity, when it is after the seizure, may be reversed within one month following the seizure. Finally, the text specifies that the seized balance allocated is only reduced by these potential debit and credit operations to the extent that their cumulative result is negative and exceeds the amounts not affected by the seizure on the day of their settlement. Moreover, even if the account balance is positive, the seizure cannot affect the portion of the present amounts corresponding to the fixed amount of the active solidarity income (RSA), which must in any case remain monthly acquired by the debtor . Conversely, Article R. 211-19 imposes a very restrictive rule for the debtor: indeed, the act of seizure renders all of the debtor's accounts representing monetary claims unavailable, even if Article R. 211-21 provides that based on the information provided by the third-party garnishee, the creditor may limit the effect of the seizure to certain accounts. The same text states in its paragraph 2 that by agreement between the parties or by decision of the enforcement judge, the unavailability may be terminated by the establishment of an irrevocable guarantee up to the amount of the claimed sums.

Cass. 2e civ., 23 February 2017, LawLex202300008833JBJ, emphasizing that the seizure - apprehension order issued on the basis of several writs of execution acknowledging distinct claims must contain a separate breakdown of principal, costs, and accrued interest for each of them.

CPC exéc., Art. L. 211-2, para. 2. - For applications, ee Cass. com., 13 October 1998, LawLex202100005215JBJ; Cass. mixte, 22 November 2002, LawLex202100002597JBJ; Cass. com., 3 December 2003, LawLex202100005216JBJ.

CPC exéc., Art. R. 211-5, para. 2. For illustrations, see Cass. 2e civ., 8 September 2011, LawLex202200010773JBJ; Versailles, 14 October 2021, LawLex202300009183JBJ.

Cass. 2e civ., 19 December 2002, LawLex202400003615JBJ.

Cf., still admitting an award of damages, Cass. 2e civ., 5 July 2000, LawLex202200010195JBJ, Procedures 2000, No 196, note PERROT.

Cass. 2e civ., 3 May 2001, LawLex202400003614JBJ; 14 September 2006, LawLex202400003613JBJ.

Cass. civ., 24 May 1996, LawLex202300003923JBJ.

Cass. 2e civ., 24 March 2022, LawLex202400003617JBJ, emphasizing that transfers ordered by the account holder debtor before the seizure, which are not included in the exhaustive list of Article L. 162-1, 2°, cannot affect the seized balance allocated to the detriment of the seizing party. Cf. Cass. 2e civ., 28 May 2003, LawLex202200010248JBJ, considering that the debtor's claim resulting from a transfer made in their favor before the seizure is deemed to exist on the day of the seizure, even if it has not yet been recorded in the account.

See Cass. 2e civ., 7 March 2002, LawLex202200010880JBJ, emphasizing, however, that no provision requires the third party subject to seizure to immediately provide the judicial commissioner who questions them with the legitimate reason allowing them to delay their response.

A contrario, Cass. 2e civ., 22 March 2001, LawLex202300001248JBJ, holding that the fact that the act of seizure was served at the town hall and that the judicial commissioner did not employ all means to allow the garnishee to respond immediately, may constitute a legitimate reason for the latter's lack of response; 4 October 2001, LawLex202200010771JBJ, considering that a delayed response from the garnishee, but given within a reasonable administrative time frame, stems from a legitimate reason when, on site, the judicial commissioner knowingly addressed a person lacking the necessary competence to respond.

CPC exéc., Art. R. 211-5, para. 1. - For an illustration, See Cass. 2e civ., 24 June 1998, LawLex202200010874JBJ.

Cass. 2e civ., 9 July 2009, LawLex202200010882JBJ. Cf., when a time-limit has been granted to the third-party garnishee, Cass. 2e civ., 8 September 2011, LawLex202200010773JBJ.

CA Lyon, 22 June 2023, LawLex202300009178JBJ.

CA Paris, 4 May 2017, LawLex202300009153JBJ.

5. Civil Enforcement Procedures

123. Implementation of seizure and challenges

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123. Implementation of seizure and challenges

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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