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

Pursuant to Articles L. 321-1 and R. 321-1 of the Code of Civil Enforcement Procedures, the enforcement procedure is initiated by serving the debtor with a order to pay (commandement de payer) at the request of the pursuing creditor. In cases where a property owned solely by one of the spouses constitutes the family residence, the order must be notified to the spouse  no later than the first business day following the service of the document. Furthermore, when the seizure involves properties located within the jurisdiction of several land registry services, a payment order must be issued for each jurisdiction . The payment order has a particular significance as it constitutes a seizure in itself, as specified in Article R. 321-1. Its invalidity results in the invalidity of all procedural acts it initiates. It follows that challenging the validity of the payment order constituting a real estate seizure raised after the writ of summons by the pursuing creditor constitutes a procedural objection that must be raised before any defense on the merits or bar to proceedings .

In addition to the mandatory information required for acts of a judicial commissioner, the order to pay must include, on pain of invalidity: the indication of the date and nature of the writ of execution under which it is issued; the breakdown of the amounts claimed in principal, costs, and accrued interest  as well as the indication of the rate of late payment interest; the warning that the debtor must pay these amounts within eight days, failing which the procedure for the sale of the property will continue; the indication that the order constitutes seizure of the property and that the asset is rendered unavailable to the debtor from the service of the act and to third parties from its publication in the real estate register; the indication that the order constitutes seizure of the fruits and that the debtor is the custodian; the indication that the debtor retains the possibility of seeking a buyer for an amicable sale; the indication of the territorially competent enforcement judge to hear the seizure procedure and related objections and incidental claims. When the seizing creditor acts by virtue of a transfer, in any capacity, of the claim contained in the writ of execution underlying the proceedings, such as in the case where the claim was acquired through a merger-absorption , the order must refer to the transfer act, unless the debtor has been duly informed beforehand.

The procedure can also be initiated against two types of third parties. The first is a person who has granted a mortgage on one of their properties to secure the debtor's debt. The creditor can, under this guarantee, recover their claim by seizing the mortgaged property, which, in this case, does not belong to the principal debtor. In this situation, a demand must be served on this third party, containing the same information as that notified to the debtor, except that the period for the demand to pay is extended to one month . The second type of third party is the sub-purchaser of the debtor's real estate, on which the pursuing creditor has registered a mortgage granting them a right of pursuit . Article R. 321-5 requires a double service in this case. Indeed, a demand to pay must be served on the principal debtor, including the mention that the demand to pay, equivalent to seizure, is delivered to the third-party purchaser. Another demand to pay, equivalent to seizure, must be served on the third-party purchaser, containing the same information as that which would be served on an ordinary debtor, except that the period for the demand to pay is one month instead of eight days, and the mentions made to the debtor are replaced by mentions made to the third-party purchaser. Case law does not impose a chronological order for these two services .

Article R. 321-6 then requires the publication of the order to pay, which serves as a seizure, in the real estate register within two months from its service. Failure to publish within this period results in the lapse, not the invalidity, of the order . However, when the execution of the publication formality is delayed due to a rejection notified by the land registry service, the two-month period is extended by the number of days between the submission of the order to this service and the execution of the formality . Special rules apply in cases of simultaneous or successive seizures on the same property. Schematically, in these scenarios, only one order is published, and the first pursuing creditor takes charge of the proceedings . Thus, under Article R. 321-8, when the publication of several orders serving as seizure of the same property is required simultaneously, only the order mentioning the writ of execution with the oldest date is published. If the writs have the same date, only the oldest order is published, and if the orders are of the same date, only the one with the highest principal claim is published. Furthermore, when an order to pay serving as a seizure has already been published, there is no need to publish a new order concerning the same property. However, if the new order presented to the land registry service includes more properties than the previous one, it is published for the properties not included in the previous one. The new pursuing creditor is then required to notify the published order to the previous creditor, who will pursue both proceedings if they are at the same stage. Otherwise, they must suspend their own proceedings and follow the new one until it reaches the same stage . Whether the different seizures are simultaneous or successive, the land registry service must note the act(s) not published in the margin of the copy of the previous published order in the order of their presentation and indicate, in the margin or following the copy of the presented order, its refusal to publish it. It also notes each of the previously published or mentioned orders .

The purpose of the formality of publication is to make enforceable against third parties  the restriction of the rights of the debtor or the third-party acquirer resulting from the seizure. Indeed, according to Article L. 321-2, the act of seizure renders the property unavailable and restricts the rights of enjoyment and administration of the seized party. In principle, the seized party can no longer alienate the property or encumber it with real rights. Furthermore, unless the property is rented, the seized party is appointed as custodian  unless circumstances justify the appointment of a third party or the eviction of the debtor for a serious reason. Additionally, the act of seizing a property includes its fruits, except for the effect of a prior seizure . Leases granted by the debtor after the act of seizure, regardless of their duration, are unenforceable against the pursuing creditor and the acquirer . Finally, alienations not published or published after the publication of the order are unenforceable against the pursuing creditor and the acquirer, unless a sufficient sum is deposited with the Caisse des dépôts et consignations to cover the principal, interest, and costs owed to registered creditors as well as the pursuing creditor. Similarly unenforceable are the registrations by the seized party that were not made prior to the publication of the seizure .

The order to pay deemed as seizure ceases by operation of law to produce effect if, within five years of its publication, a judgment recording the sale of the seized property has not been noted in the margin of this publication . Upon the expiration of the five-year period and until the publication of the title of sale, any interested party  may request the enforcement judge to declare the lapse of the order and to order its notation in the margin of the published order copy . The lapse of the order to pay deemed as real estate seizure, which operates by operation of law and is binding on the court that records it, terminates the seizure procedure . It may be noted ex officio by the court , but this is merely an option and not an obligation . The declaration of the lapse renders unnecessary the examination of the argument based on the lapse resulting from the failure to complete the publicity formalities of the sale by the pursuing creditor .

On the other hand, service to a mere cohabitant is not prescribed, Cass. 2e civ., 30 April 2009, LawLex202300010343JBJ.

CPC exéc., Art. L. 321-5. - With respect to the debtor, these effects commence from the service of the order to pay deemed as seizure (CPC exéc., Art. R. 321-13).

CPC exéc., Art. R. 321-15: the debtor retains the use of the seized property provided that no material act is performed that could diminish its value, under penalty of damages and without prejudice, if applicable, to the penalties provided for in Article 314-6 of the Criminal Code.

CPC exéc., Art. L. 321-3. - See also Art. R. 321-16 et seq.

CPC exéc., Art. L. 321-4. - Cf. Cass. 2e civ., 27 February 2020, LawLex202300011004JBJ, Gaz. Pal. 16 June 2020, 36, note BRENNER; D. 2020, 1380, note LEBORGNE, holding that the issuance of a command equivalent to a real estate seizure does not prevent the conclusion of a lease or the tacit renewal of a previously concluded lease, so that it is enforceable against the purchaser who was informed of it before the adjudication. See similarly: Cass. 2e civ., 16 January 2025, LawLex202500000765JBJ.

Cass. 2e civ., 25 June 2015, LawLex202400003723JBJ, denying the standing of an interested party to one whose action only seeks to have their right of occupation of the seized property recognized.

Cass. 2e civ., 6 March 2025, LawLex202500001276JBJ: the ground based on the invalidity of the order to pay deemed as seizure of real estate, which aims to have the judicial procedure initiated by the pursuing creditor's writ of summons to the orientation hearing declared irregular or extinguished, constitutes a procedural objection within the meaning of Article 73 of the Code of Civil Procedure.

Cass. 2e civ., 21 March 2019, LawLex202300003944JBJ.

Cass. 2e civ., 5 October 2023, LawLex202300012123JBJ.

Cass. 2e civ., 19 March 2020, LawLex202300007565JBJ.

Cass. 2e civ., 30 April 2009, LawLex202300010343JBJ, emphasizing that in the presence of a statement of account attached to the order to pay, which enables the debtor to know the breakdown of the amounts claimed and the date of the titles justifying the recovery request, the irregularity affecting the order cannot have caused him harm.

Cass. 2e civ., 26 September 2019, LawLex202400003722JBJ.

Cass. 2e civ., 19 February 2015, LawLex202300010332JBJ.

Cass. 2e civ., 5 January 2017, LawLex202300003942JBJ.

For an illustration, See Cass. 2e civ., 5 June 2014, LawLex202300010961JBJ.

140. Meaning and validity period of the order to pay