Provisional Attachment: The One-Month Deadline Trap That Caught Out a Creditor

Imagine: you own a flat in Rive-de-Gier that you let. Your tenant, a trader, owes you €15,000 in unpaid rent. You obtain an order authorising a provisional attachment on his bank account. Relieved, you think you are safe. But one month later, you learn that the attachment is void (cancelled) because you did not complete the correct formalities in time. Frustrating, isn't it?

That is exactly what happened to a creditor in the case decided by the French Supreme Court (Cour de cassation) on 13 October 2016 (n° 15-13.302). The question was simple: to save a provisional attachment, is it enough to serve submissions (a written document setting out your claims) on the debtor within the one-month period, or must they also be repeated orally at the hearing? The answer may surprise you.

This decision, handed down by the French Supreme Court (the highest French judicial court), clarifies a little-known rule under Article R. 511-7 of the French Code of Civil Enforcement Procedures. It concerns anyone who might one day consider freezing a debtor's assets before obtaining a final judgment. So, what has actually changed? Above all, how can you avoid this happening to you?

The facts: a story that happens every day

The case involved the company Damilo, which had transferred shares in a SCI (civil property company) to a buyer, whom I will call Mr X. The transfer contract provided for a partly fixed price and a variable part, indexed to the future valuation of the SCI. But the seller considered that the buyer had not paid him the full variable price. Unhappy, he obtained from the enforcement judge (the magistrate specialising in attachments) authorisation to carry out a provisional attachment on the shares of the SCI Frédéric Passy held by the debtor.

What is a provisional measure? It is an urgent procedure that allows assets (bank account, company shares, vehicle) to be frozen to prevent the debtor from hiding them before obtaining an enforceable title (a final judgment). But beware: this measure is only temporary. To make it permanent, the creditor must, within one month of the execution of the attachment, either obtain an enforceable title (e.g. a judgment) or start proceedings to obtain one. That is what Article R. 511-7 of the French Code of Civil Enforcement Procedures says.

In this case, the creditor had indeed served (formally notified) on the debtor, within the one-month period, submissions containing an incidental claim (an ancillary claim within proceedings already underway). But the problem was that the procedure was oral: before the commercial court, the parties must present their claims at the hearing, orally. However, the creditor had not orally repeated his submissions at the hearing for oral argument. As a result, the Lyon Court of Appeal, in a judgment of 6 January 2015, declared the provisional attachment void. The creditor then appealed to the French Supreme Court. Who was right?

The court's reasoning — dissected

The French Supreme Court dismissed the creditor's appeal, upholding the Court of Appeal's judgment. Its reasoning is a model of legal rigour. It relies on Article R. 511-7 of the French Code of Civil Enforcement Procedures, which provides: 'On pain of the provisional measure becoming void, the creditor must, within one month of the execution of the measure, start proceedings or complete the formalities necessary to obtain an enforceable title.'

The question was: does the service of written submissions within the one-month period suffice, even if the procedure is oral? The judges answer: yes, but on one express condition: when the procedure is oral, the creditor must, in addition to serving submissions, orally repeat those submissions at the subsequent hearing. In other words, writing is not enough if the law requires speech.

This solution is not a surprise for specialists. It follows from the very nature of oral procedure, where it is the speaking at the hearing that fixes the claims. By not attending or not repeating his submissions, the creditor did not 'start proceedings' within the meaning of Article R. 511-7. He merely sent a letter, without validating it by an active step before the judge.

The French Supreme Court thus rejected the creditor's argument that serving submissions amounted to starting proceedings. It considered that the Court of Appeal had sovereignly found that the creditor had not orally repeated his submissions at the hearing, and that this failure was sufficient to justify the voidness. No reversal here: it is a confirmation of well-established case law.

What this changes for you — concretely

If you are a landlord in Firminy and you have obtained a provisional attachment on the account of your dishonest tenant, this decision directly concerns you. Here is what you must absolutely remember:

• For the creditor (you who attach): within one month of the attachment, you must not only serve submissions on the debtor, but also, if the procedure is oral (before the commercial court, the judge for protection disputes, etc.), you must attend the hearing and repeat your claims orally. A simple registered letter or service by bailiff is not enough. Concrete example: if you bring proceedings before the Saint-Étienne Commercial Court, you must, after serving your submissions, attend the hearing and say 'I repeat my submissions of [date]'.
• For the debtor (the one subject to the attachment): this decision is a windfall. If the creditor forgets to attend the hearing or to repeat his submissions orally, you can request that the attachment be declared void. This means that the frozen assets are immediately released. However, be careful: if the creditor regularises quickly, he may avoid voidness. But a distracted creditor can lose all his rights.
• For the buyer of company shares: if you are in a situation similar to that of the case (purchase of SCI shares with a variable price), know that the seller can use the provisional attachment to put pressure on you. But you can fight back by scrupulously checking compliance with deadlines and formalities. One month is short: one oversight and the measure falls.

Let us take a concrete example: you own a commercial property in Rive-de-Gier, let at €2,500 per month. Your tenant owes €20,000. You obtain a provisional attachment on his account on 1 March. You must, before 1 April, serve submissions on the competent court (e.g. the Saint-Étienne Commercial Court) AND attend the hearing to repeat them orally. If the hearing takes place after 1 April, the service must be done before 1 April, and the hearing must then take place. But if the hearing is before 1 April, you must be present and repeat your submissions before the expiry of the deadline. Otherwise, the attachment is void, and you lose your security.

Four tips to avoid this type of dispute

• Act without delay: as soon as the provisional attachment is executed, note the expiry date of the one-month period. Do not rely on postal delays. Set yourself an internal deadline of 20 days to be sure.
• Check the type of procedure: before starting an attachment, find out about the nature of the procedure (oral or written). Before the commercial court, it is oral. Before the judicial court, it is written. If in doubt, consult a lawyer.
• Do not neglect the hearing: even if you have served submissions in due form, you must attend the hearing and state orally that you repeat those submissions. A failure to appear leads to voidness. If you cannot attend, instruct a lawyer.
• Keep all evidence: keep carefully the document serving the submissions, the receipt of delivery, and any proof of your attendance at the hearing. In case of a challenge, you will need to prove that you complied with the formalities.

Further exploration: related case law and developments

This decision is part of a line of strict rulings by the French Supreme Court on compliance with deadlines in provisional attachments. For example, in a decision of 8 November 2012 (n° 11-25.003), the Court had already held that merely seising the judge by application within the month was not enough: the creditor also had to obtain a decision within a reasonable time. Here, it goes even further by requiring an oral step.

Conversely, some lower courts had sometimes admitted that serving written submissions sufficed, even in oral procedure, if the debtor had been given the opportunity to discuss. The French Supreme Court puts an end to these divergent interpretations. The trend is therefore towards a tightening of conditions for the creditor. In the future, one can expect judges to be increasingly demanding regarding proof that the formalities have been completed within the deadlines.

This case law is consistent with the philosophy of provisional measures: they are exceptional and must be quickly converted into an enforceable title. The legislator wants to prevent creditors from indefinitely freezing a debtor's assets without starting substantive proceedings.

What you must absolutely remember

FAQ:

• Q: Can I simply send a registered letter to the court within the month? A: No, if the procedure is oral. You must serve submissions by bailiff AND repeat them orally at the hearing.
• Q: What if the hearing takes place after the expiry of the one-month period? A: The service of submissions must be made before the expiry of the period. The hearing can take place afterwards, but you must attend and repeat your submissions orally. If the hearing is before the end of the month, you must attend and repeat your submissions before the deadline.
• Q: Is voidness automatic? A: Yes, if the creditor does not comply with the deadline or formalities, the debtor can request a declaration to that effect. The judge has no discretion: it is an automatic sanction.
• Q: Can I regularise after the one-month period? A: No, the deadline is imperative. After the month, voidness is acquired, unless the debtor waives the right to rely on it (which is rare).
• Q: Does this rule apply to all provisional attachments? A: Yes, whether it is an attachment of bank accounts, company shares, vehicles, or immovable property. The nature of the asset does not matter: only compliance with the deadline and formalities counts.

Are you in a similar situation? A first 30-minute consultation with Maître Zakine (€45) can save you months of proceedings — and often much more. Book an appointment →