Tangible movables are goods that have a material existence and that can be moved (such as a television set or a car).

The civil procedures for enforcement, in particular for executing the attachment of tangible movables, are governed by Law 91-650 of 9 July 1991 and Decree 97-755 of 31 July 1992.

A creditor having an enforceable title and who wishes to recover the amount he is owed by the debtor may implement a measure for the attachment of the debtor's tangible movable property. The property attached may then be sold, and the creditor may recover the amount he is owed from the proceeds of the sale, in accordance with the procedures specific to each type of attachment.

In France, tangible movable property may be seized in different ways:

• the saisie-vente, i.e. the attachment and sale of tangible movable property (I),
• the saisie-apprehension, i.e. the attachment of tangible movables by a person entitled to their delivery (II),
• the attachment of motor vehicles (III),
• the attachment of assets placed in a safe (IV),
• the attachment of standing crops (V),
• glossary.

The choice of the procedure to be implemented depends both on its purpose (to secure payment of a sum of money or the delivery of goods), the object being distrained (a television set, a vehicle) and also its location (in the debtor's residence, in a safe).

Apart from the conditions specific to each of the civil procedures for the enforcement of debt against movables, which will be described in this e-note, certain conditions that are common to all the enforcement measures listed in e-note 1 will have to be met. Accordingly, the creditor must have an enforceable title recognising a debt that is certain, of a fixed amount and bearing an execution clause.

The Saisie-vente - the attachment and sale of tangible movable property for the satisfaction of a debt

The saisie-vente is the procedure allowing a creditor to have one or more tangible movable goods belonging to his debtor sold, and to recover the amount owed to him from the proceeds of the sale.

Definition

The saisie-vente is the procedure offering a creditor the option of having his debtor's goods seized so that they can be sold and he can recoup their price.

Conditions for implementing an attachment and sale of tangible movable property

For recourse to this civil enforcement procedure, a set of conditions must be met:

• the attachment must relate to tangible movable property;
• the attachment must relate to attachable assets. Article 14 of the Law of 9 July 1991 and article 39 of the Decree of 31 July 1992 set out a list of assets that may not be distrained;
• where the attachment takes place in residential premises, authorisation by the court is necessary if the attachment is for the purpose of recovering a maintenance obligation, the principal of which amounts to less than € 535. On the other hand, if the principal amount of the claim to be recovered is greater than € 535, the attachment may be carried out without authorisation by the court;
• service of an order to pay on the debtor. This is the instrument whereby the debtor is ordered to pay his debt. It is drawn up by a judicial officer, who brings it to the attention of the debtor.

Service of the order to pay on the debtor has the effect of suspending the prescription period (the debtor may not rely on the lapse of a certain period of time in order to evade the performance of his obligation) and marks the starting point for the charging of default interest.

An act of enforcement must be adopted within two years of service of the order to pay; if no such act is carried out in this period, the creditor must arrange for the service of a new order to pay.

The attachment

Attachment operations begin on the expiry of a period of eight days from service of the order to pay.

These operations take place at the location where the tangible property to be attached are situated. They are conducted by a judicial officer.

The goods may be attached from the debtor himself or from a third party holding them on the debtor's behalf.

In the course of these operations, the judicial officer will draw up an inventory of the debtor's property as well as an attachment report; on its issue, the debtor will no longer be entitled to dispose of the goods attached.

On completion of these operations, the assets seized will be sold.

The follow-up to attachment

The goods seized may be sold by private treaty (on the debtor's own initiative) or may be disposed of by a forced sale (sale at public auction).

It should also be pointed out that various procedural objections may arise during the course of the attachment and sale: a person not involved in the procedure may claim ownership of the property attached, or the debtor may claim that the property being attached is non-distrainable.

This procedure is governed by articles 50 to 60 of the Law of 9 July 1991 and by articles 81 to 138 and 268 to 274 of the Decree of 31 July 1992.

1. The prerequisites for the procedure of attachment and sale of tangible movable property

For an attachment and sale to be implemented in order to obtain satisfaction of debt, the property in question must be a tangible movable asset. If the measure is to be executed in residential premises, an additional formality is required before it is adopted.

Tangible movable property

The attachment and sale may relate only to tangible movable property. This means that the procedure excludes: intangible immovable property, immovable property in the form of real property or chattels real.

Whether it is held by the debtor or by a third party, all attachable personal property belonging to the debtor may be subject to an attachment and sale.

There are certain assets that are not capable of attachment, and these are listed in articles 14 of the Law of 9 July 1991 and 39 of the Decree of 31 July 1992

Article 14 of the Law of 9 July 1991

The following may not be attached:

1. Assets that the law declares to be non-attachable;

2. Provisions, moneys and annuities in the nature of a maintenance obligation, except for the performance of such obligations already effected by the attaching party to the party from whom the attachment is made;

3. Property declared by a testator or donor to be exempt from seizure, which may however be seized by creditors posterior to the gift or to the opening of the legacy, with the permission of the judge and to the extent that he determines;

4. Movable properties necessary to the life and work of the debtor and his family, except for the payment of their price, within the limits laid down by decree in the Conseil d'État - the Supreme Administrative Court - and subject to the provisions of the seventh paragraph of this article; they remain attachable, however, if they are located in a place other than the one in which the debtor subject to attachment habitually lives or works, if they are of value, in particular by reason of their size, material or rarity, their age or their standard of luxury, if they cease to be in the nature of a necessity by reason of their quantity or if they constitute the tangible elements of a business;

5. Objects indispensable to the disabled or for use in the care of the sick.

The assets referred to in 4 above may not be attached, even for the payment of their price, if they are the property of the beneficiaries of child support as provided in articles 150 to 155 of the Family and Social Support Code.

Chattels real may not be attached independently of the immovable property of which they form part, except for the purpose of payment of their price.

Article 39 of the Decree of 31 July 1992

In implementation of article 14 (4) of the Law of 9 July 1991, the following are non-attachable in that they are necessary to the life and work of the debtor subject to attachment and of his family:

• Clothing;
• Bed linen;
• Household linen;
• Objects and products necessary for bodily care and the maintenance of the premises;
• Foodstuffs;
• Household objects necessary for the storage, preparation and consumption of foods;
• Appliances necessary for heating;
• A table and chairs enabling meals to be taken in common;
• An item of furniture to store linen and clothing and an item of furniture to store household objects;
• A washing machine;
• Books and other objects necessary for the pursuit of studies or vocational training;
• Children's objects;
• Souvenirs of a personal or family nature;
• Domestic pets or guard animals;
• Livestock used for the debtor's subsistence, as well as the feedstuffs necessary for its husbandry;
• The working tools necessary in the personal exercise of an occupational activity.
• A telephone for access to a landline telephone service.

The dwelling place

Where the attachment is carried out in the debtor's dwelling place, authorisation by the execution judge is necessary if the purpose of the attachment is to obtain satisfaction of a debt other than a maintenance obligation, the principal of which is less than € 535. Such a measure is allowable only if the garnishment of the debtor's deposit account or of his earnings from employment is not possible.

Attachment of movables with a view to their sale may not be carried out in the debtor's dwelling place, without authorisation by the judge, unless the amount of the debt to be recovered exceeds the principal sum of € 535.

Where the attachment is carried out in the dwelling place of a third party (in other words, from a person holding tangible movable assets belonging to the debtor), the authorisation of the execution judge is essential under all circumstances.

2. The preliminary phase in the procedure of attachment and sale: the formal notice to pay

According to article 50 of the Law of 9 July 1991 and article 81 of the Decree of 31 July 1992, the notice to pay is the prerequisite for the procedure of attachment and sale. The actual attachment operations begin after this phase.

The order to pay is the instrument ordering the debtor, pursuant to an enforceable title, to pay his debt. This document is drawn up by the judicial officer (see e-note 2 - the enforcement practitioners), who then serves it on the debtor.

Service of the order to pay must be made at the debtor's actual domicile (in other words, the person's habitual place of residence) in accordance with the traditional regulations on service by a judicial officer. Under no circumstances may an order to pay be served at the address for service declared by the debtor (i.e. the place at which a person is deemed to be domiciled for the purpose of service of process).

Service of an order to pay on a debtor is equivalent to a default notice. Its consequence is to suspend the term of prescription of the debt and to mark the time from which default interest starts to run.

Within a term of two years from the date of service, the order to pay must be followed up by an act of enforcement (article 85 of the Decree of 31 July 1992). If this is not done, the creditor must arrange for the service of a new order to pay.

The order to pay drawn up by the judicial officer enjoining the debtor to pay the amount due, and the judgment in which the court orders the debtor to make payment of that amount, may be served simultaneously.

In accordance with article 81 of the Law of 9 July 1991, the order to pay must contain the following, on penalty of nullity:

"1 - A reference to the enforceable title pursuant to which the proceedings are being brought, with a separate statement of the amounts claimed, with their breakdown by principal, charges and accrued interest, as well as an indication of the rates of interest;

2 - Notice that payment of the debt must be made within a term of eight days, failing which payment may be enforced by the forced sale of the debtor's movable property."

Where the debt to be recovered, other than a maintenance obligation, does not exceed the principal sum of € 535, the formal notice to pay must also contain, on penalty of nullity:

"3 - An injunction to notify the creditor's judicial officer, within a term of eight days, of the name and address of the debtor's employer and particulars of the debtor's bank accounts, or just one of these two items of information; it should also be stated that if the debtor fails to comply with this injunction, the matter may be referred to the public prosecutor with a view to seeking the necessary information." (Article 83 of the Decree of 31 July 1992)

3. The attachment

The attachment starts on the expiry of a term of eight days from service of the formal notice to pay. The operations are carried out at the place at which the movable assets are located, and are conducted by the judicial officer. Unless authorised by the court, the creditor having the attachment carried out may not accompany the judicial officer.

The assets may be attached personally from the debtor or from a third party holding them on the debtor's behalf:

Attachment operations against the debtor

Reiteration of the order to pay

Once he is on site, the judicial officer reiterates the request for payment orally to the debtor present at the location: this is the "itératif commandement" [second and final notice before levying execution] (article 93 of the Decree of 31 July 1992).

If the debtor fails to discharge the obligation, the judicial officer asks him to indicate any assets that may have been the subject of a prior attachment (article 93 of the Decree of 31 July 1992). This declaration will be entered into the attachment report.

Access to the premises

If the debtor opposes the judicial officer's entry into the premises, or there is no person present there, the doors may be forced open.

Where the attachment takes place in residential premises, the judicial officer may proceed with the attachment operations only in the presence of:

• the mayor of the municipality, or a municipal councillor, or a municipal official delegated by the mayor, the police authorities or the gendarmerie authorities requested to be present;

or

• two adult witnesses who work in the service of neither the creditor nor the judicial officer in charge of execution, and who have been present during the attachment operations, who will append their signatures on the original and copies.

The inventory

The judicial officer then draws up an inventory of the attachable assets. In the event that the assets are non-attachable, or if any asset has no market value, the judicial officer draws up a nulla bona return.

Following these operations, an attachment report is drawn up by the judicial officer. This records the steps taken by the judicial officer and, on penalty of its nullity, the particulars listed by article 94 of the Decree of 31 July 1992, including the reference to the title pursuant to which the attachment is being conducted and a detailed description of the assets seized.

The attachment report is signed by the judicial officer.

Delivery of the attachment report

The procedure differs depending on whether or not the debtor is present during the attachment operations:

If the debtor is present, the judicial officer hands him the copy of the document directly. This delivery is then equivalent to the service of the document. The judicial officer reminds the debtor orally that the assets are no longer capable of being disposed of (in other words, they may not be alienated or used to secure a debt), that the debtor is their custodian but that he may arrange for their sale by private treaty. This oral information will be recorded in the attachment report.

It should be pointed out that the proceeds from the sale by private treaty of the assets declared to be inalienable are consigned into the hands of the judicial officer of the distraining creditor (the creditor having taken the initiative for the attachment).

If the debtor has been absent during the attachment operations, the judicial officer proceeds with the service of the copy of the document. The debtor then has a period of eight days to inform the judicial officer of the existence of a report on a prior attachment of the same assets (article 96 of the Decree of 31 July 1992).

Effects of the attachment report

The attachment report renders the seized assets inalienable. The debtor is their custodian and accordingly retains the right of use, unless they are consumables (article 97 of the Decree of 31 July 1992). He has the option of arranging for their sale by private treaty. Nevertheless, he may not alienate or relocate them, on penalty of the sanctions laid down in article L. 314-6 of the Criminal Code.

If sums of money are found on the premises where the assets are being attached, these will be delivered personally to the judicial officer. The debtor is then given one month to lodge an objection before the execution judge for the place of the attachment. If no objection is made, the moneys are immediately attributed to the creditor and are deducted from the amount for which the attachment has been levied.

Attachment operations against a third-party holder

The inventory

On expiration of a term of eight days from the service of the order to pay, the judicial officer may proceed with the attachment of the assets held by the third party on the debtor's behalf.

Assets in premises used as a residence by a third party may be attached only with the authorisation of the execution judge.

The judicial officer may not execute the attachment until the order to pay has been served on the third party.

The judicial officer asks the third party holding the property to declare the assets he is holding on the debtor's behalf and to inform him whether they have been the subject of a prior attachment. If the third party does not hold any property belonging to the debtor or refuses to reply, the judicial officer draws up a record, stating the penalties incurred, which he communicates to the third party (article 100 of the Decree of 31 July 1992).

If the third party refuses to reply or makes an inaccurate or false declaration, he may be ordered to make payment for the claim giving rise to the attachment, without prejudice to his right of recourse against the debtor for reimbursement (article 99 of the Decree of 31 July 1992).

If the third party declares that he is holding property on the debtor's behalf, the judicial officer draws up an inventory of the assets indicating, on penalty of nullity, the information specified by article 101 of the Decree of 31 July 1992 (an indication that the objects seized are inalienable and placed in the third party's custody, the name and domicile of the third party, etc.).

Delivery of the attachment report

The manner of delivery differs depending on whether or not the third party was present during the attachment operations:

If the third party has been present during the attachment operations, the judicial officer reminds him orally of the content of the attachment report, and then immediately hands him a copy of the attachment report; this delivery is equivalent to service of the document.

If the third party has been present during the attachment operations, the copy of the document is served by judicial officer. The third party is then allowed a term of eight days to inform the judicial officer of the existence of a prior attachment of the same assets and to forward him the attachment report.

On expiration of this term of eight days, a copy of the document is served on the debtor. It will state, on penalty of nullity, that the debtor has a term of one month to proceed with the sale by private treaty of the assets seized.

Effects of the attachment report

From the time of issue of the attachment report, the assets will be inalienable in the hands of the third party, who is their custodian. The third party may at any time request to be discharged from his capacity as custodian. In this case, it will be the judicial officer's responsibility to appoint a new custodian and, where necessary, to arrange for the assets to be removed.

The third party does not have the use of the property seized, unless he has been attributed this right by a decision prior to the attachment. Nevertheless, the execution judge may at any time, against an ex parte application, order the sequestration of one or more objects designated by him (article 105 of the Decree of 31 July 1992).

The third party may, moreover, claim a right of retention of the property seized. In this event, he must so inform the judicial officer by registered letter with advice of receipt or by a declaration made on the occasion of the attachment. The creditor making the attachment will have a period of one month to contest this right of retention before the execution judge of the place in which the third party lives. If no objection is made by the distraining creditor within this period, "the third party's claim is deemed to be well founded for the purposes of the attachment" (article 106 of the Decree of 31 July 1992).

4. Sale of the assets seized

The sale may be by private treaty or forced:

Sale by private treaty

The debtor may voluntarily sell the property attached within a term of one month from the attachment. Nevertheless, the property is still inalienable. The proceeds from its sale are applied towards the satisfaction of the creditors, who may refuse if they consider them to be insufficient.

This sale is subject to the following twofold condition:

• consignment of the price within a certain term;
• acceptance by the creditor(s).

It should also be noted that this sale does not operate like a traditional sale: the agreement between the distraining party (the seller) and the third party-acquiring the property (the buyer) as to their wishes is not sufficient to give rise to the transfer of title (and, for all the more reason, the obligation to deliver the property or assets).

Transfer of title is in fact conditional on the price being consigned within a term of one month and on its acceptance by the creditors, who have a term of fifteen days to reach their decision.

A distinction has to be made between two hypothetical cases:

• in the event of refusal by the creditors, "a forced sale may not be made before the expiry of a term of one month";
• in the event of the creditors' acceptance, the buyer may proceed with the consignment of the price in order to perfect the sale. This consignment will be made into the hands of the judicial officer of the distraining creditor (in other words, the creditor on whose initiative the attachment has been made). This constitutes payment of the price. Its effect is to operate the transfer of ownership and to place an obligation on the custodian of the property seized to deliver it to the buyer.

The forced sale

The forced sale, or sale in execution, is conducted by public auction, on the expiry of a term of one month as provided for a sale by private treaty. This term is increased by the granting of a period of fifteen days to creditors so that they can reach a decision on the price proposed to them under a sale by private treaty.

In the final analysis, a forced sale can take place only within a period of one month and fifteen days from the attachment.

The sale must be advertised. This may take the form of the display of notices or announcements through the press. The judicial officer must certify that these publication formalities have been complied with.

The sale is realised either in the place in which the property seized is located or in an auction room or a public market, with the most appropriate geographical location for soliciting competition for its purchase at the lowest cost. It is for the distraining creditor to make the choice, with due regard for the rules of territorial competence of the professional officer conducting the sale.

The debtor is informed of the date, time and place of the public auction at least eight days before the appointed date, by a simple letter or any other appropriate means.

The sale is effected by a professional officer empowered by his professional status to conduct sales by public auction of tangible movables.

The operation for the purpose of selling the attached assets at public auction to the highest bidder is the adjudication.

This sale at public auction is open to any person (except those persons making the sale) with the aim of obtaining the best price. The attached assets are sold to the highest bidder after three calls have been made by the auctioneer.

The sale comes to an end when the price obtained for the assets sold is sufficient to pay the debt to the distraining creditor in principal, interest and charges. The price is payable in cash.

A deed of sale is drawn up containing a description of the assets sold, the amount realised at auction and the first name and surname of the successful bidder.

Adjudication (auction of attached assets) effects the transfer of title on payment of the price in cash.

If payment is not made, the assets are re-offered at auction (in other words a second auction is conducted if the successful bidder has failed to perform his obligations, for example the payment of the price). If they are resold at a lower price, the frivolous bidder is required to pay the difference between the initial price at which it has been sold and the price realised on resale.

Procedural objections

Applications may be based on objections raised by the creditors, the third party or the debtor:

Procedural objection raised by other creditors

Intervention by the creditors of the same debtor who have been informed of the bringing of an attachment procedure

Besides the distraining creditor, other creditors may take part in the procedure. To join the procedure, the other creditors must adopt the opposition procedure, in which such creditors are called "opposing creditors", whereas the distraining creditor is qualified as "first distraining creditor".

To join the procedure, the opposing creditor must have an enforceable title recognising a debt that is certain, of a fixed amount and due (see e-note 1). The effect of opposition is to confer on the opposing creditor the status of a party to the initial procedure. Nevertheless, it is still the first distraining creditor who conducts the proceedings.

The opposition may be formed up to the time of the seizure of the assets.

This is done by an instrument drawn up by a judicial officer indicating, on penalty of nullity, the enforceable title on the basis of which the opposition is formed and giving a separate account of the amounts claimed in the form of capital, expenses and accrued interest, as well as stating the rate of interest.

The instrument is served on the first distraining creditor, who pursues the sale alone, in his own name and in the name of all the opposing creditors, who will be included in the distribution of the price obtained from the sale.

Supplementary attachment

A supplementary attachment may also be executed by the first distraining creditor or by the opposing creditor. The judicial officer draws up a report complying with the rules of attachment and sale. This report is served at the same time as the instrument of opposition, if the supplementary attachment is executed at the time of the opposition.

If the first distraining creditor has not arranged for the forced sale formalities, the opposing creditor may be subrogated in the rights of the first distraining creditor for the execution of the attachment and sale. The opposing creditor serves notice on the first distraining creditor to take the steps required within a term of eight days, failing which the opposing creditor is subrogated by the force of law in the rights of the first distraining creditor.

A forced sale of all the goods distrained may not take place until all the terms prescribed for their sale by private treaty have expired. The nullity of the first attachment has no effect on the supplementary attachment.

The only way of obtaining a release of the attachment and sale (in other words the removal of an obstacle to the debtor's exercise of his rights to his asset) is to secure a decision by the execution judge or the agreement of the distraining creditor and the opposing creditors.

Procedural applications by the third party

Applications made by the third party generally refer to the ownership of an asset. Such applications suspend the procedure for the assets to which it refers at the end of the case before the execution judge.

The third party may contest the attachment and sale procedure by two types of action:

• the "action en distraction", defined as the action whereby a third party asks the court to lift an attachment on property of which it claims ownership;
• the "action en revendication", an action brought to establish a person's title of ownership of property.

Procedural objections by the debtor

Objection associated with the distrainability of assets

Similar to applications made by the third party, an objection pertaining to the distrainability (see list of the non-attachable assets on page 3) suspends the procedure for the assets to which it refers up to the end of the proceedings before the execution judge.

The debtor may file an objection to the distrainability of certain assets before the execution judge, within a term of one month from the service of the attachment report.

Nullity

The distrained debtor may seek to have an attachment annulled. The form of nullity claimed (in other words, the penalty for a legal instrument vitiated by a defect) may be nullity for a defect of substance (for example, lack of capacity) or nullity for a defect of form (such as the omission of a formality).

The application for nullity does not suspend the attachment operations, unless the execution judge decides otherwise.

The annulment of the attachment of tangible movable property entails the release of the initial attachment of the assets concerned, which then become available again. If the nullity relates only to certain instruments, the procedure will be resumed, except for the instruments to which the action for nullity refers.

By reason of the non-suspensive nature of an action for nullity, the sale of the assets by auction may nonetheless be carried out. A distinction must then be made between two cases:

• if the annulment has been declared after the sale but before the distribution of the price obtained, the debtor may ask for the restitution of the proceeds of the sale;
• if the annulment is pronounced after the distribution of the price, an action for the recovery of undue payments against the creditor may be envisaged if the debtor was not in fact under an obligation to repay any debt. If, on the other hand, the annulment is based on the irregularity of the attachment, the debtor may act to secure a legal remedy against the distraining creditor.

Saisie-apprehension - attachment to enforce the performance of an obligation

Saisie-apprehension is an enforcement measure enabling a creditor entitled to the delivery or return of movable property that the debtor is under an obligation to perform, based on an enforceable title or a court order.

Definition

This civil procedure can be used by the creditor to enforce the debtor's performance of its obligation to deliver or return movable assets, by means of their seizure based on an enforceable title or a court order.

The attachment

The attachment operations may be directed towards the debtor or a third party who may be holding the asset concerned on the debtor's behalf.

In general, service will be made of an order to deliver or return the asset, or a formal notice of the obligation to deliver the asset, depending on whether the procedure is executed against the debtor or the third party holding the asset. This instrument is drawn up by the judicial officer in charge of the attachment.

The judicial officer will also draw up an attachment report.

Once the attachment operations have been carried out, the asset seized is delivered to the creditor.

This procedure is covered by article 56 of the Law of 9 July 1991, and articles 139 to 154 of the Decree of 31 July 1992.

The procedure may be brought against the debtor in person (1) or against the third party holding the asset in question on the debtor's behalf (2).

1. Saisie-apprehension - attachment for the enforcement of delivery or return, served personally on the debtor

An order to deliver or return the assets is served on the person responsible for their consignment.

This order contains, on penalty of nullity, the particulars specified in article 141 of the Decree of 31 July 1992 (specification of the enforceable title pursuant to which return is demanded, a statement that the person may, within a term of eight days, transport the designated asset to a location under the conditions indicated, etc.).

Whether the asset is delivered voluntarily or whether it is delivered following its seizure, an instrument containing a detailed description of the asset must be drawn up. This instrument, produced by the judicial officer in charge of the attachment, can be used to record the state of the property at the time of its return.

If the asset is seized so that it can be delivered to its owner, a copy of the record of its voluntary delivery or its seizure is forwarded or notified by registered letter with advice of receipt to the person required to deliver or return the asset pursuant to the enforceable title.

2. Attachment for the enforcement of delivery of movables held by a third party

If the asset is held by a third party, formal notice to deliver the asset is served on that party directly by a judicial officer at the creditor's request.

A "sommation" is a formal notice addressed to the debtor demanding performance of his obligations and stating the consequences that would ensue if he were reluctant to comply.

This formal notice must contain the information specified by article 146 of the Decree of 31 July 1992, on penalty of nullity.

After the formal notice has been served on the third party, notice is forwarded to the debtor by registered letter with advice of receipt.

If the third party fails to deliver the asset voluntarily within the stated term, the creditor will apply to the execution judge at the place of residence of the third party holder for an order to that third party to deliver the asset.

The creditor must make this application within a month of the service of the formal notice, on penalty of its lapse.

The judicial officer may then proceed with the seizure of the asset on presentation of the decision of the execution judge ordering the asset to be delivered to the creditor. A formal record of the seizure is drawn up and a copy of this record is delivered or notified to the third party by registered letter with advice of receipt.

3. Attachment for the enforcement of delivery in the absence of an enforceable title

In common with all civil execution procedures, an attachment for enforcement of an obligation may not, in principle, be pursued without an enforceable title. Nevertheless, the special nature of this enforcement procedure is that it is possible for a creditor without an enforceable title to refer the matter to the execution judge to remedy its absence.

Accordingly, if the applicant does not have an enforceable title, he may file an application with the execution judge with jurisdiction for the place in which the debtor resides, in order to obtain an order to deliver or return the movable asset in question.

The application must contain, on penalty of its inadmissibility, the designation of the asset whose delivery is requested. All documents substantiating this request will be attached to the application.

The order containing the formal notice to deliver or return the asset is served on the party responsible for its consignment, notifying him that he is required either to transport the designated asset at his own expense to the place and under the conditions indicated within a term of fifteen days, or, if the holder of the asset has grounds for defence, to file an objection with the registry of the execution judge who has issued the order.

In the absence of an objection within a term of fifteen days, the creditor may apply to the registry to append the enforcement clause.

The asset is then seized personally from the party required to deliver.

It should also be pointed out that there exists an attachment procedure for the seizure of assets placed in a safe. This is regulated by articles 275 to 277 of the Decree of 31 July 1992.

The attachment of road motor vehicles

1. in short

The attachment of road motor vehicles covers two types of procedure:

Declaration to the Prefecture

The purpose of this execution measure is to deprive the debtor of the right to dispose of his road motor vehicle and, in particular, to prevent him from selling it. It is useful if it is impossible to locate the vehicle.

Immobilisation of the vehicle

The purpose of this procedure is to have the vehicle immobilised. The measure is generally considered to be a step taken prior to the attachment or to the seizure of the vehicle to enforce performance of an obligation. It is particularly necessary once the vehicle is located.

2. in practice

Two types of procedure for the attachment of road motor vehicles co-exist: the declaration to the Prefecture and immobilisation of the vehicle.

These two procedures are not directed towards the same objective, and the choice of which one to deploy will depend in particular on the objective pursued by the creditor.

Declaration to the Prefecture

This aim of this procedure is to prevent the debtor disposing of the vehicle, by making a declaration to the Prefecture. This leads to the Prefecture being prohibited from issuing a registration document for the vehicle concerned. This declaration produces its effects for two years.

It is particularly useful when the vehicle cannot be located.

Immobilisation of the vehicle

This is immobilised through a judicial officer, who draws up an immobilisation report.

This report is equivalent to an attachment and therefore renders the vehicle inalienable, so that it can neither be sold nor used to secure a debt.

Thereafter, depending on whether the creditor wishes to recover the vehicle or arrange for its sale, the attachment procedure should be applied for its sale or it should be seized to obtain the performance of the debtor's obligation.

This procedure is covered by articles 57 to 58 of the Law of 9 July 1991 and by articles 164 to 177 of the Decree of 31 July 1992.

The creditor has a choice of two separate procedures: a declaration to the Prefecture (a) and the immobilisation of the vehicle (b).

Declaration to the Prefecture

The purpose of this execution measure is to deprive the debtor of the right to dispose of his road motor vehicle and, in particular, to prevent him from selling it. It is useful if it is impossible to locate the vehicle.

The judicial officer, bearing an enforceable title, serves a declaration on the Prefect of the Département (French territorial division) in which the vehicle is registered. A copy of this title is served on the debtor within a term of eight days from the declaration to the Prefect of the Département.

The declaration prohibits the Prefecture from delivering a registration certificate for the vehicle concerned.

Service of the declaration produces the effects of an attachment vis-à-vis the debtor so that the vehicle is rendered inalienable (the vehicle cannot then be sold or used to secure a debt).

The effects of the declaration to the Prefecture continue for a (renewable) period of two years. However, it does not affect the rights of a pledgee creditor (in other words the creditor whose claim is secured by a pledge.

The immobilisation of the vehicle

The purpose of this procedure is to obtain the immobilisation of the vehicle. The measure is generally considered to be a step taken prior to the attachment or to the seizure of the vehicle to enforce performance of an obligation. It is particularly necessary once the vehicle is located.

The judicial officer may attach the debtor's vehicle by immobilising it in any place where it is located, by any means not causing any deterioration of the vehicle.

To do this, the judicial officer draws up an immobilisation report that indicates the enforceable title justifying the measure, the description of the vehicle and the date and place of its immobilisation.

The appliance used to immobilise the vehicle must indicate the judicial officer's telephone number in a clearly visible manner.

If the vehicle is immobilised pursuant to an attachment for the purpose of sale executed in premises occupied by the debtor or of a third party holding the vehicle on the debtor's behalf, the steps taken are the same as for attachment and sale (see attachment and sale of movable property).

In other cases, the judicial officer draws up an immobilisation report.

If the vehicle has been immobilised in the debtor's absence, the judicial officer must inform him on the same day as its immobilisation, by a simple letter addressed to or lodged at the place at which he lives.

Immobilisation implies its attachment, rendering the vehicle, which is in the hands of its owner, inalienable; the owner nonetheless remains its custodian.

The follow-up on the procedure depends on the purpose for which the proceedings have been brought:

The payment of a sum of money

If the vehicle has been immobilised in order to obtain payment of a sum of money, the judicial officer serves a formal order notice to pay on the debtor eight days at the latest after immobilisation.

If the debtor fails to perform, the vehicle will be sold in accordance with the procedure of attachment and sale of the tangible movables (see attachment and sale for the satisfaction of debt), unless the execution judge has ruled on any objections.

The delivery of the vehicle to its owner

If the vehicle has been immobilised with a view to its delivery to its owner, the judicial officer serves an injunction to deliver the vehicle on the person required to make the delivery, eight days at the latest after immobilisation.

If the debtor fails to comply with this injunction, the vehicle is seized and transported at his expense for delivery to the owner according to the procedure for attachment to enforce the performance of an obligation (saisie-appréhension).

Delivery to a pledgee creditor

If the vehicle has been immobilised with a view to its delivery to a pledgee creditor (in other words, a creditor whose claim is secured by the giving of personal property as security for the obligation), the judicial officer serves on the person required to make delivery, eight days at the latest after immobilisation, an injunction to deliver the property, stating that if he fails to do so the vehicle will be transported at his expense for consignment to the pledgee creditor.

The attachment and sale of the assets placed in a safe

The attachment and sale of movable assets placed in a safe is the procedure whereby a creditor arranges for the sale of one or more tangible movable goods belonging to his debtor that has been placed in a safe, in order to recover the amount owed to him out of the proceeds from the sale.

Definition

The attachment for sale of assets placed in a safe is a special form of attachment that allows a creditor to arrange for the seizure of his debtor's assets from a safe, in order to have them sold and obtain payment from the price of the sale.

Attachment

The procedure for the attachment of assets in a safe is that a judicial officer serves notice on the third party owner of the safe (a bank, hotel, etc.). This attachment is temporary. Its effect is to prevent access to the safe unless the judicial officer is present.

Final attachment takes place at the time of the opening of the safe by the judicial officer after delivery of a formal notice to pay to the debtor. During this procedure, the judicial officer's actions include making an inventory of the assets placed in the safe and determining those that will or will not be covered by the attachment measure.

Follow-up on the attachment

On completion of the attachment operations, the debtor is informed that he has the option of arranging for the sale of the attached assets by private treaty (on his own initiative). If he fails to do so, they will be disposed of by a forced sale (by public auction).

The attachment of movables placed in a safe is regulated by articles 226 to 282 of the Decree of 31 July 1992.

The attachment is realised by the service of a judicial officer's notice on the third party owner of the safe; the notice must set out the particulars specified in article 266 of the Decree of 31 July 1992, on penalty of nullity. At this stage, the attachment is only provisional, merely having the effect of preventing access to the safe unless the judicial officer is present. It applies to all the objects placed in the safe, without distinction as to whether or not those objects are attachable.

Its purpose is to serve as an obstacle to a debtor wishing to take objects from the safe. It will become final at the time of the opening of the safe by the judicial officer, who will then draw up an inventory and a breakdown of the assets to be attached and those that will not be attached.

Seals may be affixed to the safe.

On the first working day following the attachment report, an order to pay is served on the debtor. This order will contain the particulars specified in article 268 of the Decree of 31 July 1992, on penalty of nullity.

The safe may not be opened until the expiry of a term of fifteen days from service of the order to pay. It is at this stage that the attachment becomes final.

If the debtor is not present, its forced opening must take place in the presence of the owner of the safe or his duly authorised agent. The cost of its opening will be advanced by the distraining creditor.

If the safe is opened, an inventory will be drawn up of the assets, which must be described in detail. If the debtor is present, the inventory will be limited to the attached assets, which will be removed immediately and placed in the custody of the judicial officer or a receiver designated by amicable agreement or against an ex parte application by the execution judge.

If the debtor is absent, an inventory is made of all the assets contained in the safe. Those that are attached are immediately removed by the judicial officer and are placed in his custody or that of a receiver.

The assets that are not attached are consigned to the third party who is the custodian of the safe or to a receiver designated by the execution judge.

The receiver is under an obligation to present the assets again merely upon the debtor's application. The judicial officer may photograph the objects removed from the safe, and will draw up a record of the operations.

The debtor is warned that he has a term of one month to arrange for a sale by private treaty; if he does not do so, a forced sale will be made.

The forced sale will be in accordance with ordinary law as set out in articles 110 to 116 of the Decree of 31 July 1992.

The attachment of standing crops

The attachment of standing crops is a special form of attachment of movable property, whereby a creditor may distrain his debtor's crops (the owner thereof) so that they can be sold and he can recover the amount due to him out of the proceeds.

This procedure is covered by articles 134 to 138 of the Decree of 31 July 1992.

Standing, or unharvested, crops are natural or industrial crops that will become movables (apples, for example).

Even though in legal terms standing crops are in the nature of immovable property at the time of their attachment, they are subject to the system of procedures for the execution of an attachment against movables (as they are regarded in law as meubles par anticipation, in that they will become movable objects at the time of their separation from the soil).

The creditor must have an enforceable title recognising a claim against the debtor that is of a fixed amount and due. The creditor's debtor must be the owner of the crop.

The attachment must be executed in the six-week period preceding the customary ripening period.

The attachment report is drawn up by the judicial officer and, on penalty of nullity, contains the particulars listed in article 94, but with the exception of the particulars listed in section 2 of this text, which are replaced by the description of the land where the crops are located, together with its size, position and an indication of the nature of the crops (article 135 of the Decree of 31 July 1992).

The crops are placed under the responsibility of the debtor, who is the custodian thereof. However, at the request of the distraining creditor, the execution judge may designate a manager for their exploitation.

In accordance with article 137 of the Decree of 31 July 1992, the sale will be announced by notices displayed at the town hall and in the marketplace closest to the place at which the crops are located.

The sale will be held at the place in which the crops are located, or at the closest marketplace.

Glossary

• Action en répétition de l'indu - recovery of undue payments: action enabling a person who has made payment of an amount that he did not owe to bring legal proceedings for the restitution of this sum by the party who has received it
• Adjudicataire - highest bidder: the party acquiring attached assets sold at auction
• Adjudication - auction of attached assets: operation for the purpose of selling an attached asset at public auction to the highest bidder
• Bien immeuble (or immobilier) - Immovable (or real) property: property that, by its nature, cannot be moved
• Bien indisponible - inalienable property: an object that may neither be disposed of, nor used as security for a debt
• Bien meuble (or mobilier) - movable property (or a movable): something having a physical existence and that can be moved.
• Caducité - lapse: the penalty for an act that was initially valid but whose full effectiveness depended on a subsequent event that has not occurred
• Créancier gagiste - pledgee creditor: a creditor whose claim is secured by a pledge (the pledge is a guarantee based on tangible movable property)
• Créanciers opposant - opposing creditors: all the debtor's creditors other than the distraining creditor
• Créancier saisissant - distraining creditor: the creditor taking the initiative of executing the attachment
• Domicile élu - address for service: the address at which a person is deemed to be domiciled for the purpose of service of process
• Domicile réel - actual address: a person's habitual place of residence
• Folle enchère - frivolous bid: successful bid made by a person at an auction, who then fails to perform his obligations (non-payment of the price or the auction charges). This person is called a frivolous bidder
• Immeubles par destination - chattels real: objects regarded as statutorily immovable, since they can be permanently affixed to an immovable or are intended for the use and service of an estate
• Immeuble à perpétuelle demeure - permanent fixture: a movable object physically attached to real property that cannot be removed without causing damage
• Irrecevabilité - inadmissibility: the penalty for a claim advanced by a person without the right, interest or capacity to take legal action
• Mainlevée - release: the lifting of a blocking of, or a legal obstacle to, the realisation of an act or the exercise of a right
• Meubles incorporels - intangible personal property: property having no physical existence, and that is intangible
• Meubles par anticipation - movables by anticipation: immovable objects that have not yet been separated from the land, but that will then become movables and are considered as such
• Moratoire - moratory penalty: reparation for prejudice caused by a delay in the performance of an obligation (e.g. moratorium interest, default interest)
• Nullité - nullity: the penalty for a legal act that is vitiated by a defect of form (such as the omission of a formality) or of a defect of substance (such as the absence of locus standi or lack of capacity to take part in court proceedings)
• Opposition - opposition by third-party creditors: a procedure allowing other creditors of the same debtor to join the proceedings brought by the distraining creditor in order to share in the proceeds from the attachment, or even to amplify the property to be attached to it by incorporating other assets
• Prescription: means of acquisition or extinction of a right by the lapse of a certain period of time
• Saisissabilité - attachability: the distrainable nature of an asset
• Signification - service: the service of formal notice by a judicial officer, consisting of the delivery of a procedural document to its addressee
• Sommation - formal notice: a document addressed to the debtor containing a demand to perform his obligations and indicating the consequences that would be incurred by his refusal to comply
• Subrogation: the option offered to a creditor to take the place of another negligent creditor in an enforcement procedure