In this E-note :

• Enforcement in general
• Attachment: form
• Attachment of movable assets from the debtor
• Third party attachment
• Attachment of aircraft and ships
• Enforcement of release and consignment
• Expropriation of indivisible assets
• Enforcement judge

Enforcement in general

1. INTRODUCTION

Tangible assets are anything that exists in the physical world that can be perceived by the senses or by physical instruments (e.g.: an animal, television set or vehicle).

In Italy, tangible assets can be the subject of enforcement through:

• 1. Attachment:
• a. attachment of movable property from the debtor
• b. third party attachment
• c. attachment of immovable property
• 2. Consignment (movable assets) and release (immovable assets)

or through:

• 3. precautionary seizure
• 4. judicial sequestration

Enforcement 'in general' is regulated by Title II, Chapter I (article 483 et seq.) of the Code of Civil Procedure.

According to Italian law, in order to proceed with enforcement the creditor must have an enforceable title. There is a further prerequisite besides the enforceable title, although this does not relate to the enforcement procedure proper but precedes it: before initiating the enforcement, the creditor must serve a document on the debtor, known as the 'precetto', or writ of execution. There are two purposes to this formality:

• to give the debtor a deadline for voluntary compliance
• to assign the creditor a term (of ninety days) within which enforcement must commence,

2. ENFORCEABLE TITLES

Article 474 of the Code of Civil Procedure establishes that enforcement can take place only pursuant to an enforceable title in respect of a right that is certain (i.e. one that exists), fixed (in other words, a debt whose amount has been determined) and due (without term or conditions).

The enforceable title, the basis for enforcement in any form, is the document ascertaining the existence of a creditor's claim for enforcement against a debtor and consequently requires the registry to enforce the claim within the limits and in the manner laid down by law.

Article 474 identifies two types of enforceable titles:

• 1. Judicial enforceable titles:
• a. judgments;
• b. remedies 'and other documents' to which the law explicitly attributes executable force;
• 2. Extrajudicial enforceable titles:
• c. certified private agreements, regarding obligations as to the sums of money stated therein;
• d. promissory notes and other negotiable instruments, and documents to which the law attributes the same force;
• e. documents of which a notary or other public official has taken knowledge, where he is authorized by law so to do.

3. WRIT OF EXECUTION

The 'precetto', an ex parte document, , is a formal notice to comply with the obligation arising from the enforceable title within a term of not less than ten days, with the warning that in the event of failure to do so enforcement will be levied. This formal warning, therefore, is a document that is a prerequisite for enforcement; the law, however, makes certain exceptions to this requirement, for example in interlocutory proceedings. It also has a twofold function of a document placing the debtor in default and suspending the limitation period.

The writ ceases to be effective if, within a term of ninety days from its service, enforcement has not commenced. If the debtor opposes the writ, that term continues to be suspended and recommences as provided by article 627 of the Code of Civil Procedure.

4. CUMULATION OF METHODS OF EXPROPRIATION

Article 483 of the Code of Civil Procedure states that the creditor may, in order to seize the debtor's assets, avail himself of several of the various methods of enforced expropriation, using whichever he feels is most appropriate: attachment of movable property, third party attachment, or attachment of immovable property.

These cumulative options imply that the creditor can carry out a number of enforcement processes of different types enforcement against the same debtor, in the sense that he is allowed to act simultaneously by expropriating movable and immovable assets and the claims of the debtor against whom the claim is being enforced, initiating as many independent procedures, with the obvious aim of more rapidly obtaining satisfaction of his claim.

To avoid causing greater harm than necessary, the legislator has made provision for instruments of defence and guarantee for the debtor, giving the enforcement judge authority to intervene in the enforcement process - on the opposition of the debtor himself - in order to limit the expropriation to the form chosen by the creditor or, failing that, to the choice made by the judge himself.

Attachment: form

1. INJUNCTION

Pursuant to article 492 of the Code of Civil Procedure, attachment consists of an injunction directed at the debtor, by the Judicial Officer, to refrain from any action aimed at withdrawing from the credit guarantee as specified exactly goods which are subject to expropriation and benefits from them.

An injunction is a legal constraint on attached assets that has the effect of rendering invalid transactions entered into by the debtor and consequently, it constitutes an essential requirement for the actual working of the action, since it is only through this that the obligation to refrain from any harmful act prohibited by article 492 of the Code of Civil Procedure attains unequivocal certainty and full legal personality.

2. REQUIREMENTS IN TERMS OF FORM

With regard to form, pursuant to article 492 of the Code of Civil Procedure, in addition to an injunction, an attachment must also contain:

• an invitation directed at the debtor to go to the registry of the court of enforcement and declare their place of residence or address for service to be in one of the municipalities of the district in the which the court with jurisdiction over the enforcement is located, with it being noted that, in the event of the debtor being absent or unable to be found at the declared place of residence or address for service, subsequent notifications or correspondence directed to them will be carried out at the registry of the same court.
• a warning that the debtor may ask to replace the objects or attached receivables by a sum of money equal to the amount owed to the attaching creditor and creditors present, including capital, interest and costs, in addition to enforcement costs.

Law 52 of 24 February 2006, besides the more incisive forms of seizure of the debtor's assets, has introduced a new procedure, the 'dichiarazione patrimoniale', or statement of assets, the purpose of which is to oblige the debtor to cooperate with a view to the satisfactory outcome of the procedure, in application of the principle of fairness referred to in article 1775 of the Civil Code and consistent with the provisions of article 2740 of the Civil Code on the civil liability of the debtor.

Article 492 of the Code of Civil Procedure, in its fourth paragraph, states that if the judicial officer ascertains that the debtor's assets appear to be - are - insufficient to satisfy the creditor taking action - the amount stated in the writ plus 50% for procedural costs - he is to require the debtor to indicate other objects and claims, besides those ascertained, and their whereabouts, in other words giving the particulars of the third party debtors.

The judicial officer draws up a report on that operation, which is also signed by the debtor, after the latter has been warned of the penalty prescribed by article 388 of the Criminal Code for misrepresentation or omission.

3. STATEMENT OF ASSETS

The judicial officer is required to ask the debtor to make a statement of assets prescribed by article 492, fourth paragraph, of the Code of Civil Procedure, if:

• 1. the assets attached appear to be insufficient to satisfy the claim for which action is being taken;
• 2. the assets attached for the purpose of liquidation of the debt appear to be long-term;
• 3. the combined assets attached have become insufficient due to other creditors joining the claim.

The Italian legislator, with the intention of harmonizing the Italian judicial officer and putting him on a competitive footing with the judicial officers of other European countries, has given him the authority - besides that of requiring a statement of assets - to access data from the tax register and other public databases, in order to discover the existence of other assets and claims owned by the debtor that can be attached. In addition, where the debtor is a commercial entrepreneur, the statutory provision states that the investigation of assets may be extended by an examination of the business accounts.

4. PRIVILEGE FROM EXECUTION

In accordance with article 2740 of the Civil Code, the debtor is answerable for his obligations with regard to all his own property, present and future. This civil liability of the debtor is reflected in the creditor's right to obtain satisfaction from all the assets belonging to the debtor. However, there are exceptions to this general principle, contained in article 2740 of the Civil Code: they are stated by article 514 of the Code of Civil Procedure and by certain special laws derogating from the principle of this civil liability on the part of the debtor by exempting certain categories of real property from expropriation.

It is first of all the responsibility of the judicial officer to determine whether or not any or all of the debtor's assets come within the body of assets 'that may be attached'; in the search for the assets to be attached, the judicial officer has the power, exercised at his discretion, to assess whether they may be exempted from execution. If those assets are held by the judicial officer to be attachable and the debtor opposes that finding, their evaluation and the decision are the responsibility of the enforcement judge.

Up to a fifth of the tools, objects and books which are essential for the debtor to be able to carry out his profession, craft or trade may be attached when the probable realizable value of other assets ascertained by the judicial officer or stated by the debtor does not seem to be sufficient to satisfy the claim; the aforementioned limit does not apply to debtors taking the form of a company and in any event if it transpires that in the debtor's assets there is a prevalence of capital invested in his work.

Attachment of movable assets from the debtor

1. PLACE OF ENFORCEMENT

As regards attachment of movable assets from the debtor, the same Code regulates various enforcement methods, depending on the location of the assets which are being attached.

1) Attachment of movable assets at the debtor's house and at other places belonging to him;

2) Third party attachment which allows assets belonging to the debtor which are subject to attachment to be produced.

With reference to point two, it should be specified that, if the third party does not consent to producing the debtor's property, the creditor has two alternatives in order to proceed with attachment:

• a. third party attachment: article 543 of the Code of Civil Procedure et seq. states that the third party may give a statement before the judge;
• b. direct attachment: subject to an authorisation order by the president of the court or a judge delegated by him, upon application by the creditor, to attach particular items that cannot be found in locations belonging to the debtor, but which the debtor may directly have at his disposal.

2. ENFORCEMENT STAGE

In view of this, the judgment creditor (either personally or through his lawyer), equipped with the enforceable title and the writ, delivers the documents to the Ufficio Notificazioni Esecuzioni e Protesti - the 'service, execution and protest office', known by its abbreviation, U.N.E.P. with jurisdiction over the territory.

The document is checked by the judicial officer responsible for receiving documents and if it does not contain any irregularities it is delivered to the competent local judicial officer.

At the time of the attachment request the creditor may declare that he intends to participate in the attachment operations at his own expense, with the assistance of or using a defence lawyer and expert, or one of the latter. In that case the enforcing judicial officer must give notice of the date and time of access within fifteen days, giving three days' notice, which may be reduced in urgent cases (article 165 of the provisions for the implementation of the Code of Civil Procedure).

The judicial officer, with the titles (enforceable title and writ of execution) and within the term of validity of the writ, may visit the place indicated in the documents in order to execute the enforceable title.

Article 519 of the Code of Civil Procedure states that the attachment may not be levied on non-working days or outside the hours stated in article 147 of the Code of Civil Procedure (between 7 a.m. and 9 p.m.), unless authorisation has been given by the President of the Court or by a judge delegated by the President.

Attachment initiated within the prescribed hours may be pursued until completion.

3. ASSISTANCE FROM THE POLICE

If the debtor puts up resistance or there are other people who interfere with the enforcement process, the judicial officer may request assistance from the police.

The enforcement action, since it is instrumental with regard to the right recognised in the title, constitutes an individual's public right to get the State to carry out activities which are necessary to exercise the right recognised in the title. Calling on the police can definitely be listed among these activities. Therefore, the police's decision to grant or refuse this shall only be at their discretion in so far as this relates to their availability and equivalent events, always within a very strict time frame. See Milan Court of Appeal, Division 1, 27 October 1982, no. 1694.

4. Enforcement with forced entry

The most frequent situation that the judicial officer encounters at the place of enforcement is that:

a. he finds the place closed due to the debtor or other people who live there being absent, or

b. these persons refuse to open the door in order to prevent the attachment from taking place.

In these cases the judicial officer has the broadest possible powers, including the right to force open the door. In fact, article 513 of the Code of Civil Procedure, paragraph 2, establishes that:

"When it is necessary to open doors, store rooms or containers, overcome resistance offered by the debtor or third parties, or remove persons who disrupt the enforcement of the attachment, the judicial officer shall proceed according to the circumstances, requesting assistance from the police, where necessary".

5. THE SEARCH FOR ASSETS

The search for movable assets to be attached is an act of ordering the attachment and it is a stage in the process of expropriating movable assets that is essential for its effectiveness.

As regards the seizure of movable assets from the debtor, article 513 of the Code of Civil Procedure sets out the route that the judicial officer must follow when searching for the debtor's assets to be attached:

• in the debtor's house;
• in other places belonging to him;
• on the debtor's person;
• in places not belonging to the debtor.

6. Attachment in places not belonging to the debtor

If the search for the assets has to be conducted in locations not belonging to the debtor, the procedure for the attachment of those assets may be one of three types:

• 1. expropriation through third parties - as provided by article 543 of the Code of Civil Procedure - for objects owned by the debtor that are in possession of third parties and of which he cannot dispose directly;
• 2. direct action by the judicial officer on the premises of the third party in possession of the debtor's assets, when the third party consents to produce them;
• 3. the attachment of personal property from the debtor and, by authorisation from the President of the Court, when certain assets are located in places not belonging to the debtor but of which he can dispose directly.

It may be noted that the operational methods used to seize the debtor's assets, when they are in the possession of a third party, vary according to certain contexts which are automatically imposed by law.

An example which clarifies this is as follows:

A writ of execution has been served upon Mr Rossi for a considerable sum which is owed to Mr Verdi.

Through a personal investigator Mr Verdi discovers that Mr Rossi has a Ferrari.

From the information received from the investigator, Mr Verdi finds out that the vehicle is parked at a private garage and the owner is Mr Neri, a friend of the debtor's.

Convinced that the owner of the garage will not consent to producing the asset for the purposes of attachment, Mr Verdi asks the president of the court for authorisation, pursuant to article 513, paragraph 3, to carry out the attachment at a location which the debtor may have at his disposal (the debtor is free to enter and leave the garage with the car).

The judge authorises this and Mr Verdi assigns the judicial officer to execute the attachment.

The judicial officer goes to Mr Neri's garage, but cannot find the Ferrari.

Mr Neri informs the judicial office that the vehicle is for sale at Mr Bianchi's dealership.

At this point the judicial officer goes to the dealership (a location that the debtor does not have at his disposal) but Mr Bianchi refuses to produce the vehicle and the Judicial Officer hands over the documents to the creditor.

Bearing in mind that Mr Verdi cannot petition the judge for direct attachment since the asset is located in a place which the debtor does not have at his disposal, there is only one more path open to Mr Verdi: third party attachment.

It is important to point out that if the Judicial Officer intends to execute direct attachment enforcement against a third party, it is not enough for the third party to produce the asset, he also has to declare that the asset belongs to the debtor.

Article 517 of the Code of Civil Procedure

The attachment must be executed on objects that the judicial officer considers can be liquidated more easily and promptly, within the limit of a presumed realisation value equivalent to the amount of the claim stated in the writ plus one half.

Nevertheless, the judicial officer must give preference to money in cash, precious objects, negotiable instruments and other assets that are seen as being certain of realisation.

Article 619. Form of opposition.

A third party who claims to have ownership of or another actual right regarding attached assets may oppose the attachment by petitioning the enforcement judge, before the sale or allocation of assets is arranged.

By a court order the judge fixes the hearing for the parties to appear before him and the deadline by which the petition and court order must be served.

If the parties reach an agreement at the hearing, the judge acknowledges this with an order, adopting any other decision which might, if appropriate, ensure continuation of the enforcement process or the termination of the process, also issuing a ruling on costs in the latter case; otherwise the judge makes a provision pursuant to article 616 taking into account responsibility for the amount.

7. Description of attached items

The first paragraph of article 518 of the Code of Civil Procedure specifies that: 'The judicial officer draws up a report of his operations in which he records the injunction referred to in article 492 and describes the objects attached, together with their condition, using photographic images or other audiovisual media.'

The main reason for the attachment report including a photographic image or audiovisual medium is so that at the moment of removal of the attached assets intended for enforced sale, the debtor cannot replace them with other similar assets of little value. In fact the general description "written in pen" when the attached asset is not a registered asset (for example a vehicle), lends itself to fraudulent acts by the debtor which are difficult to uncover.

The photographic or audiovisual images can also be taken by the valuer appointed to value the assets, in addition to the judicial officer.

The omission of a photographic or audiovisual copy from an attachment report is not a ground for invalidity provided for by law, but it is so when it prevents it form achieving its aim.

8. The presumed realisation value of the attached assets

On the entry into force of the reform of enforcement levied on movable assets, the legislator has also introduced a new criterion for estimating assets subject to attachment. Whereas, in the past, the evaluation of an asset was linked with its commercial value, under the reform law the reference is now the presumable value on realisation. This means that at the time of estimating the asset the judicial officer is required to make a careful assessment of how much can be recouped from the enforced sale of that particular asset.

The reference criteria for arriving at an approximate estimate of the presumed value on realisation are linked with supply and demand on the market for the asset that is being attached.

Bearing in mind that the Judicial Officer carries out the valuation of the assets on the basis of his general experience and expertise, during an enforcement procedure, it may be that assets which require specific and industry expertise in order to be valued are subject to attachment. The legislator has made provisions for these specific cases, and has granted the Judicial Officer the operational power to call upon a trusted expert.

As regards the appointment of an expert valuer by the Judicial Officer, the legislator has provided for two operational possibilities:

• 1. the Judicial Officer appoints the valuer before initiating the enforcement, if he considers this necessary or at the creditor's request;
• 2. the Judicial Officer appoints the valuer in the course of the enforcement.

The first case may occur if, the judicial officer makes a prior assessment that it is highly probable that there will be assets which are difficult to value in the place of enforcement, such as for example in the case of a request for attachment at a jewellers. In this event the Judicial Officer will appoint a valuer and they will enter the place of enforcement together.

The second case, on the other hand, may occur when the judicial officer goes by himself to the place of enforcement and discovers assets which are difficult to value (as in the example given above, except that the documents do not make reference to the debtor's activity as a jeweller). In this second case - pursuant to article 518 of the Code of Civil Procedure, paragraph 2 - the judicial officer may defer the estimation operations by drawing up a first attachment report, and within a brief time limit and in any case by the thirty day deadline, definitively identifying the assets which are to be attached on the basis of the values indicated by the expert, who in any case is allowed to enter the place where the assets are located.

Third party attachment

1. INTRODUCTION

Expropriation through third parties is regulated by articles 543-554 of the Code of Civil Procedure.

A creditor wishing to execute an attachment of a movable object that he assumes is the property of his debtor but that is held by a third party, must act according to the procedures and forms laid down by article 543 et seq. of the Code of Civil Procedure (expropriation through third parties), unless the third party agrees to disclose the object voluntarily to the judicial officer.

Article 543 of the Code of Civil Procedure.

The debtor's claims against third parties or the debtor's property in the possession of third parties are attached by means of a document served in person on the third party and on the debtor pursuant to article 137 et seq.

In addition to the injunction against the debtor referred to in article 492 the document must contain:

1. an indication of the claim with regard to which action is being brought, the enforceable title and the writ of execution;

2. at least a general indication of the objects and sums owed and an order to the third party not to use them without an order from the judge;

3. declaration of residence or address for service in the municipality in which the competent court is located;

4. the summons of the third party and debtor to appear before the court of the third party's place of residence, so that the third party can make the declaration referred to in article 547 and so that the debtor is present at the time of the declaration and subsequent documents; the third party is summoned to appear when the garnishment relates to the claims referred to in article 545, third and fourth paragraphs, and in other cases it is asked communicate the declaration referred to in article 547 to the garnishee creditor within a term of ten days by registered letter.

When indicating the appearance hearing the deadline stipulated by article 501 must be respected.

The judicial officer, who served the document, is required to immediately lodge the original at the court registry so that the file stipulated in article 488 may be created. This file must contain the enforceable title and the writ of execution which the attaching creditor must lodge at the court registry at the time of the appearance set out in article 314.

(Article 314, Article repealed by article 71, of Legislative Decree no. 51. of 19 February 1998 )

It should also be pointed out that it is not possible to commence the expropriation through third parties if the third party has become the owner of an asset transferred by the debtor, the transferal of which has harmed the creditor's rights. In that case it is not a question of third party attachment but rather attachment levied against a third party, which is separately regulated by articles 602 et seq of the Code of Civil Procedure.

Article 602. Means of expropriation.

When the subject of expropriation is an asset encumbered by a lien or mortgage for someone else's debt, or an asset whose transfer by the debtor was canceled due to fraud, the provisions set out in the paragraphs above shall apply, if they are not amended by the articles below.

Article 603. Service of the enforceable title and writ of execution.

The enforceable title and writ of execution must also be served on the third party.

The writ of execution must specifically mention the third party's asset which is intended to be expropriated.

Article 604. Special provisions.

Attachment and expropriation actions in general are carried out against the third party, to whom all the provisions relating to the debtor apply, apart from the prohibition referred to in article 579, paragraph 1.

Each time that the debtor has to be heard pursuant to the paragraphs above, the third party must also be heard.

Article 546, paragraph 1. The third party's obligations.

From the day on which the document stipulated in article 543 is served, the third party is subject to the obligations which the law imposes upon guardians, with regard to the objects and the sums owed by him, within the limits of the amount of the claim stated in the writ plus one half.

2. Form of third party attachment

The function of the third party attachment document is to place a lien as to destination on the debtor's claim in order to satisfy the garnisher.

Debtor's property in the possession of third parties is attached by means of a document served in person on the third party (article 546 of the Code of Civil Procedure) and on the debtor pursuant to article 137 et seq. The central and decisive moment of the third party attachment is the service of that document, even though it consists of a number of elements.

In format, the document consists of two separate parts: the first part is produced by the judgment creditor and contains the elements listed in article 543 of the Code of Civil Procedure, whereas all the information required by article 492 of the Code of Civil Procedure is contained in the second part, signed by the judicial officer.

The elements prescribed by articles 543 and 492 of the Code of Civil Procedure are as follows:

• 1. the creditor's declaration of residence or address for service in the municipality in which the competent court or decentralized division is located;
• 2. an indication of the claim with regard to which action is being brought, the enforceable title and the writ of execution;
• 3. an indication of the objects owed by the third party. The indication may also be general as the subject of enforced expropriation is not an asset that is subject to immediate enforcement, but rather an active legal position of the execution debtor;
• 4. the summons of the third party and debtor to appear before the enforcement court of the third party's place of residence, so that the third party can make the declaration referred to in article 547 and so that the debtor is present at the time of the declaration and subsequent documents; the third party is summoned to appear when the garnishment relates to up to a fifth of salaries, wages and other allowances relating to an employment relationship, and in other cases it is asked communicate the declaration to the garnishee creditor within a term of ten days by registered letter.
• 5. the injunction specifically and directly directed at the execution debtor by the judicial officer;
• 6. the ordering of the third party not to use the objects and sums owed by him, up to the amount of the claim stated in the writ, plus one half, without an order from the judge;
• 7. an invitation directed at the debtor to go to the registry of the court of enforcement and declare their place of residence or address for service to be in one of the municipalities of the district in the which the court with jurisdiction over the enforcement is located with it being noted that, in the event of the debtor being absent or unable to be found at the declared place of residence or address for service, subsequent notification or correspondence directed to him will be carried out at the office of the registry official of the same court.;
• 8. a warning that the debtor, pursuant to article 495, may ask to replace attached objects or claims with a sum of money equal to the amount owed to the attaching creditor and creditors who have joined in the claim, including capital, interest and costs, in addition to the enforcement costs, as long as, under penalty of inadmissibility, he lodges at the court registry, before the sale or allocation is arranged pursuant to articles 530, 552 and 569, the relevant petition together with a sum of no less than a fifth of the amount of the claim with regard to which the attachment has been initiated and the claims of the creditors who have joined in the claim state in the relevant notices of joinder, after deduction of the payment made, documentary evidence of which must be given;

The absence of even just one of the elements stated in article 543 and 492 of the Code of Civil Procedure, shall lead to the attachment being invalid and in some cases legally void, since they are essential requirements of the document.

3. IMPLEMENTATION

Third party attachment is not implemented solely by service of the document referred to in article 543 of the Code of Civil Procedure - which leads to the third party making the objects or sums owed by him immediately unavailable, thus signaling the effectiveness and existence of the attachment itself - but with a positive statement by the third party or with legal verification of the claim. These are the two methods that alone lead to an accurate and practical specification of what property or amounts the third party owes or that are in the third party's possession at the time at which payment or consignment is due.

Between the date on which the writ of attachment is served and the day of the hearing it is necessary to comply with the time period laid down by article 501 of the Code of Civil Procedure of ten days.

The judicial officer, who served the writ, is then required to immediately file an original copy at the registry of the court - or decentralised division - so that the enforcement file can be created. This file must contain the enforceable title and the writ of execution which the attaching creditor must lodge at the court registry when the entry is made in the roll of proceedings.

4. COMPETENT COURT

Article 543, fourth paragraph, states that the third party and the debtor must appear before the court of the third party's place of residence.

In very rare cases this article may contradict article 26 of the Code of Civil Procedure, if the third party is in possession of movable objects which belong to the debtor. In fact the aforementioned article 26 sets out that for enforcement regarding movable or immovable objects the court of the place in which the objects are located shall have jurisdiction and therefore it is not possible to rule out that sometimes the debtor's movable objects may be located in a place other than the third party's place of residence.

Article 2914. Transfers prior to attachment.

The following do not have a detrimental effect against the attaching creditor and creditors joining the enforcement, despite being prior to the attachment:

1) transfers of immovable or movable assets entered in public registers which are recorded after the attachment;

2) transfers of claims notice of which has been given to the assigned debtor or accepted by him after the attachment;

3) transfers of universality of movable assets that do not have a firm date;

4) transfers of movable assets possession of which has not been transferred, prior to the attachment, unless shown in a document with a firm date.

Attachment of aircraft and ships

1. INTRODUCTION

Enforcement relating to aircraft, ships or floats, shares in their ownership or appurtenances, is regulated solely by the special measures set out in Book Four, Title V, of the Code of Navigation, as well as in Title IV of the regulations implementing that Code, approved by Presidential Decree 328 of 15 February 1952, with the result that reference cannot be made to the rules on enforcement in the Code of Civil Procedure, except in those cases in which specific reference is made to that Code in the Code of the navigation or its implementing regulations.

Article 650 - and 1061 - of the Code of Navigation provides that the attachment of ships, floats or shares in their ownership - aircraft - is carried out on the creditor's application, by service of the document on the owner and master or captain. When, therefore, the attachment refers to ships or aircraft:

1. 1. the form of the attachment is not as prescribed by the Code of Civil Procedure: the judicial officer does not arrange for the search for and identification of the ship or aircraft pursuant to article 513 of the Code of Civil Procedure;

2. enforcement is regulated solely by the special measures set out in Book Four, Title V, of the Code of Navigation, as well as in Title IV of the regulations implementing that Code, approved by Presidential Decree 328 of 15 February 1952;

3. the judicial officer merely serves the relevant attachment order on the owner and master or captain.

2. Territorial JURISDICTION

Enforcement is filed before the court in the district in which the ship - article 643 - or aircraft - article 1055 - is located. Therefore the territorial court of enforcement is functional and mandatory in nature: therefore it is not the same as the general court referred to in art. 18 of the Code of Civil Procedure, and the related objection of lack of jurisdiction, since it is liable to be raised by the court ex officio, may be raised at any state and stage of the procedure.

Article 643 - Jurisdiction

 1. Enforcement is brought before the court in the district in which the ship or float is located...

 2. Judicial sequestration and precautionary seizure of ships or floats is authorised by decisions* [*translator's note: possibly "courts" (i.e. "giudici" rather than "giudizi")] which have jurisdiction pursuant to the code of civil procedure.

Article 1055. Jurisdiction.

Enforcement is brought before the court in the district in which the aircraft is located.

Judicial sequestration and precautionary seizure is authorised by courts which have jurisdiction pursuant to the Code of Civil Procedure.

Court of Cassation, Division 3, Judgment 8247 of24/05/2003. Since for the purposes of the enforcement jurisdiction is held by the court of the place in which the objects are located, the judicial officer employed by the court registry with jurisdiction over the enforcement has jurisdiction over the attachment (in this case, with a previous regulation on jurisdiction, the civil division had already identified the court registry with territorial jurisdiction over implementing attachment of a ship).

There are similar provisions for aircraft.

3. Writ of execution

Enforcement relating to ships - aircraft - or floats, ships' parts - shares in their ownership - and their appurtenances, is regulated exclusively by the Special Provisions contained in the Code of Navigation as well as in the relevant enforcement regulation, with the consequence that since the judgment creditor is prohibited from opting for the normal procedure referred to in articles 480 et seq. of the Code of Civil Procedure, the time limit for the effectiveness of the writ of execution in order to proceed with the attachment of watercraft or aircraft is a mandatory thirty days.

As regards the time limit to be complied with, article 647 of the Code of Navigation provides for a very tight time limit: TWENTY FOUR HOURS.

Therefore:

24 hours > Time limit to be complied with by the debtor

30 days > Time limit for the writ of execution's effectiveness

Article 647 - Writ of execution

 The writ of execution is regulated by the provisions of the Code of Civil Procedure, but the time limit to be complied with is reduced to twenty four hours.

SHIP. Article 648 - Service of the writ of execution

 1. The writ of execution, following the creditor's application, must be served upon the debtor owner.

 2. The writ of execution becomes ineffective once thirty days have passed without the attachment taking place.

AIRCRAFT. Article 1059. Form and service of the writ of execution.

The writ of execution is formed and served in accordance with articles 647, 648, first paragraph; it becomes ineffective once thirty days have passed without the attachment taking place.

4. SALE

Pursuant to articles 653 (ship) and 1065 (aircraft) the attaching creditor, no earlier than thirty days and no later than ninety days after the attachment, may request the sale of the ship or aircraft by petitioning the enforcement judge.

The petition must be served upon the debtor owner, mortgagees, and creditors joining the claim pursuant to article 499 of the Code of Civil Procedure, with an invitation to comment on the conditions of sale, and if the matter relates to a foreign aircraft the petition shall be served upon the consulate of the state from which the aircraft's nationality derives.

Enforcement of release and consignment

1. RELEASE

The creditor with an enforceable title in executable form, must therefore serve that title and the writ before proceeding with enforcement.

The first paragraph of Article 608 of the Code of Civil Procedure - Method of release - states that enforcement commences on service of the notice whereby the judicial officer informs the party at least ten days in advance that it is required to release the property, stating the date and time on which action will be taken.

Release enforcement is assigned to the judicial officer, although provision is made for the intervention of the judge if, in the course of execution, difficulties arise whose solution cannot be deferred. In this case, article 610 of the Code of Civil Procedure provides that each party may apply to the enforcement judge to exercise his authority to take the temporary measures required.

On the day and at the time appointed, the judicial officer, bearing the enforceable title, the writ and the prior notice, goes to the place at which the property being released is located, to implement the execution.

It should be pointed out that, pursuant to articles 608 and 513 of the Code of Civil Procedure, the judicial officer's powers and duties include those of opening doors, store rooms or containers, overcoming resistance offered by the debtor or third parties, or removing persons who disrupt execution.

If the judicial officer finds the evictee or another person living there, the first formal request is to hand over the keys and, depending on the circumstances,

• a. to transport elsewhere all the movable objects not related to the enforcement;
• b. not to leave valuables, money or other objects of value in the property being released - in a case in which the execution debtor declares that he does not have other premises available where the movable property can be transferred.

If the evictee does not offer resistance and voluntarily hands over the keys, the judicial officer proceeds by taking possession; if, however, resistance is offered, he calls on the Police for support.

If nobody is present on the evictee's behalf in the place of enforcement, and the judicial officer finds the entrance door closed, he is authorised by law to make a forced entry, in that it is not a prerequisite for the applicant party to enter into possession that the enforcee, on whom the notice of release has been duly served, should be present.

Once all the difficulties that arise in the first phase of enforcement are overcome, the judicial officer places the applicant party or the person designated by him in possession of the property.

Article 609 of the Code of Civil Procedure provides that if movable objects are found in the property that belong to the party required to release them and that do not have to be consigned to the applicant party - for example, an unfurnished apartment - the judicial officer may, unless the execution debtor removes them immediately, arrange for their custody on site, even by the applicant party if he agrees to such custody, or for their transfer to another location.

It may arise that there are assets liable to attachment or seizure among the objects to be removed or listed in an inventory. In this case, the judicial officer is required to give immediate notice of their release to the creditor on whose application the attachment or seizure has been carried out, and to the enforcement judge for the replacement of the custodian if necessary.

2. CONSIGNMENT

Article 2930 of the Civil Code provides that if the obligation to consign a certain movable or immovable object is not fulfilled, the claimant may obtain enforced consignment pursuant to the provisions of the Code of Civil Procedure. In that event, enforcement takes place in compliance with the rules established by article 605 et seq of the Code of Civil Procedure.

Enforceable title. Enforcement of consignment can only take place by virtue of the enforceable titles referred to in points 1) and 3) of the second paragraph of article 474 of the Code of Civil Procedure.

• judgments, measures and other documents to which the law attributes executable force, such as orders, decrees, and settlement-in-court record.
• documents of which a notary or other public official has taken knowledge, where he is authorized by law so to do.

Writ of execution. In addition to the information referred to in article 480, a writ of execution for the consignment of movable assets must include a summary description of the assets themselves.

If the enforceable title makes provisions about the time limit for consignment, the order must be made with reference to that time limit.

Once the time limit stated in the writ of execution has passed, the procedure for consignment of movable assets - enforcement in a specific form - is brought to completion through the following stages:

• a. The judicial officer, holding the enforceable title and writ of execution, goes to the place where the objects are located;
• b. He searches for the objects to be consigned - which have to be identified, without the possibility of confusion with similar objects. It is worthwhile pointing out that the objects to be consigned must absolutely be described in the enforceable title and/or in the writ of execution and any records or documents appended to the title itself shall be invalid, even if signed by the debtor.
• c. Consignment of objects to the applicant party - or a person designation by him - who removes them and has them transported elsewhere. Obviously, since it is not a question of attachment, the party receiving the asset is not required to state where he is going to transfer the assets to, since they are exclusively the property of the applicant.

By virtue of powers granted by law - article 513 of the Code of Civil Procedure - the Judicial Officer may search for objects in a place other than that stated in the documents including in other places belonging to the party required to make the consignment.

If the asset is in the possession of a third party - not covered by the enforcement - who does not consent to produce and consign it, specific authorisation is required from the president of the court or someone delegated by him, unless the enforceable title contains authorisation for enforcement wherever the asset may be located.

When it is necessary to open doors, store rooms or containers, overcome resistance offered by the debtor or third parties, or remove persons who disrupt the enforcement, the judicial officer shall proceed according to the circumstances, requesting assistance from the police, where necessary.

Article 607 provides that if the objects to be consigned have been attached, the consignment cannot take place, and the applicant party must assert his reasons through third-party opposition pursuant to article 619 et seq.

Expropriation of indivisible assets

1. INTRODUCTION

A debtor's property is not always made up of assets exclusively owned by him, but may be made up of assets in joint ownership with other non-enforcee individuals, such as for example assets inherited together with other heirs (co-ownership by heirs) or under the regime of joint estates of spouses.

In these cases, when the assets are jointly held by more than one individual, they are called "indivisible assets".

The co-ownership may concern both the right to ownership and any other actual right.

Enforcement levied on indivisible assets is regulated by the Code of Civil Procedure in articles 599, 600 and 601, integrated by articles 180 and 181 of the enacting provisions.

The first paragraph of article 599 of the Code of Civil Procedure establishes that: "Joint assets may be attached even when not all the co-owners are indebted to the creditor".

This means that when joint assets are the subject of attachment inevitably this indirectly involves individuals who are not concerned by the debt position. Therefore, after the attachment has been carried out, the judgment creditor - pursuant to paragraph 2 of article 599 of the Code of Civil Procedure and 180 of the enacting provisions of the Code of Civil Procedure - is required to serve a notice of attachment upon the other co-owners.

Service of the notice of attachment of a joint asset upon co-owners who are not debtors, has two aims:

• 1. prohibit the joint things from being separated without an order from the judge;
• 2. to allow all of the interested parties to be heard, as stipulated by article 600 of the Code of Civil Procedure.

Joint assets may be both movable and immovable, but claims may also have this requirement: for example current accounts with positive balances held by more than one person where these persons also have the right to carry out transactions separately. In this event the account holders are considered (pursuant to article 1854 of the Civil Code) to be co-creditors of the positive balance.

There are three methods by which enforcement enforcement levied on joint assets may take place:

• 1. separation of the share;
• 2. division of the asset;
• 3. sale of the indivisible share.

2. SEPARATION IN KIND OF THE DEBTOR'S SHARE

The enforcement judge, on application by the attaching creditor or co-owners and having heard all the interested parties, if possible, arranges the separation of the share in kind that is owed to the debtor.

3. DIVISION OF THE COMMON ASSET

If the separation in kind is not requested or is not possible, the judge provides for the division to be carried out pursuant to the Civil Code, unless he thinks it probable that the indivisible share will be sold for a price equal to or higher than its value, determined pursuant to article 568 of the Code of Civil Procedure.

In that case the execution is suspended, pursuant to article 600 of the Code of Civil Procedure, until an agreement is reached between the parties or a judgment is issued which definitively identifies the debtor's share of ownership of the asset that was originally common.

Division of a jointly held asset is feasible when it is possible to determine definite shares which can be used autonomously and freely, while inconvenient divisibility takes place when it is not possible to create a number of homogeneous shares which is the same as that of the co-owners (Court of Cassation, Section II, 3 May 1996, no. 4111).

From and economic and functional point of view, the division must allow the maintenance of the functionality of the whole, even if to a proportionally lesser extent, taking into account the normal purpose and use of the asset (Court of Cassation, Division II, 7 February 2002, no. 1738); that is to say the asset can be split into many separate portions, each of which can be used autonomously by each sharer according to the ordinary and normal function of the whole (Court of Cassation, Division II, 23 October 2001, no. 12998; Court of Cassation, Division II, 24 November 1998, no. 11891).

4. SALE OF THE INDIVISIBLE SHARE

If the common asset cannot be divided, the enforcement judge may order the sale of the indivisible share owned by the execution debtor.

The sale of the indivisible share involves a partial amendment of the subjective structure of the co-ownership as - unlike in separation in kind - it does not cause any decrease in the combined common assets, nor does it involve any restriction of the rights of the other co-owners, because the co-ownership relationship is not destroyed.

Article 600. Summons of co-owners

The enforcement judge, on application by the attaching creditor or co-owners and having heard all the interested parties, if possible, arranges the separation of the share in kind which is owed to the debtor.

If the separation in kind is not requested or is not possible, the judge provides for the division to be carried out pursuant to the Civil Code, unless he thinks it probable that the indivisible share will be sold for a price equal to or higher than its value, determined pursuant to article 568.

Article 180. Notice of attachment given to co-owners of the attached asset.

The notice given to co-owners of the indivisible assets in the case provided for by article 599, paragraph 2 of the Code must state the attaching creditor, attached asset, the date of the writ of attachment and the transcription of it. The notice is signed by the attaching creditor.

In this notice or in another separate one the interested parties must be invited to appear before the enforcement judge in order for the measures set out in article 600 of the Code to be issued.

Enforcement judge

The enforcement judge - designated by the President of the Court - in the enforcement proceeding:

• a. has the duty of verifying that compulsory expropriation is conducted in accordance with the principle of strict legality and, as the judicial authority, ensures that the fundamental constitutional freedoms are respected;
• b. may not be substituted by another judge, save in cases in which there is an absolute impediment or serious service requirements.

The judge issues his decisions in enforcement procedures in the form of an ex parte ruling, but where he convenes the parties (and also any other interested persons besides the debtor or creditor) to obtain further information on which to base his evaluation, he issues a court order.

Applications and petitions brought before the enforcement judge, unless otherwise provided by law, will be submitted orally when they are made at a hearing, and by a written submission to be filed with the court registry in other cases.

For enforcement levied on movable or immovable assets, the case comes before the judge with jurisdiction for the place in which the assets are located. If not all the immovable assets liable to enforcement are located within the district of a single court, article 21 of the Code of Civil Procedure applies.

For the compulsory expropriation of the debtor's claims, the case comes before the judge having jurisdiction for the place where the third party debtor resides.

For the enforcement of the obligations of performance and non-performance, the case becomes before the judge of the place where the obligation must be performed.