Precautionary Attachment: Securing Your Claim Before Judgment

A customer has not paid its invoice for months. Reminders go unanswered, and you learn that it is starting to empty its accounts, sell its business or transfer its assets to another structure. By the time a court rules on your claim, there may be nothing left to attach. A precautionary attachment (saisie conservatoire) responds precisely to this situation: it freezes the debtor's assets even before judgment, to prevent it from engineering its insolvency. This guide explains how to use it to secure a claim, how to freeze a bank account, and how to turn this measure into a definitive attachment once an enforceable title has been obtained.

What a precautionary attachment actually does

A precautionary attachment is an urgent measure governed by Articles L. 511-1 et seq. of the French Code of Civil Enforcement Procedures (code des procédures civiles d'exécution, CPCE), which resulted from Order No. 2011-1895 of 19 December 2011. The principle is simple: to make certain assets of the debtor unavailable in order to secure the future payment of a claim, without waiting for the outcome of the proceedings.

It is important to understand what it does and what it does not do. A precautionary attachment does not transfer ownership of the sums or assets to the creditor. It freezes them. In a bank account, the funds are made unavailable but remain the property of the debtor: the creditor cannot yet have them allocated to it. It is a snapshot of the debtor's assets at a given moment, which prevents the debtor from dissipating them.

This distinction is fundamental. A precautionary attachment is a protective measure, not an enforcement measure. To actually recover the money, it will be necessary to obtain an enforceable title (a judgment, an order) and then convert the precautionary attachment into a garnishment (saisie-attribution). That is the whole point of the strategy described in this guide: freeze first, collect afterwards.

The measure can apply to several types of asset:

• sums held in a bank account (the most frequent case in practice)
• claims that third parties owe to the debtor (rent, customer invoices, shares)
• tangible movable property (vehicles, stock, professional equipment)
• partners' rights and securities

The two cumulative conditions to be met

Article L. 511-1 of the CPCE sets two conditions that must be met simultaneously. A failure on either one results in the application being rejected. Where the measure targets real property of the debtor, these conditions for authorisation are examined in our article on the provisional judicial mortgage and securing priority ranking.

"Any person whose claim appears well founded in principle may apply to the judge for authorisation to take a protective measure over the assets of its debtor, without prior formal demand, if it shows circumstances likely to threaten recovery."

A claim that appears well founded in principle

The creditor does not have to prove its claim as certain, liquidated and due, as for an ordinary attachment. It is enough to show that it appears well founded in principle. The judge makes an assessment of plausibility, not a ruling on the merits.

In practical terms, an accepted invoice, a signed purchase order, a contract, an acknowledgement of debt, or an exchange of emails approving a service will generally suffice to establish this appearance of a sound basis. Conversely, a purely hypothetical claim, or one whose very existence is strongly disputed, will be harder to have accepted. The amount claimed must remain consistent with the documents produced: seeking an attachment for a manifestly overstated amount exposes the creditor to a challenge.

Circumstances threatening recovery

This is the heart of the issue that concerns us: the creditor must show that something concretely threatens its ability to be paid later. This is where the fight against deliberate insolvency is decided.

The circumstances regularly accepted by the courts include:

• cessation of payments or manifest financial difficulties of the debtor
• suspicious movements on the accounts, transfers of assets to another company
• the sale of the business or of the production facilities
• a change of registered office, the company being put into dormancy, imminent deregistration
• a multiplication of unpaid debts owed to other creditors
• the attitude of the debtor itself, which arranges its departure or conceals its assets

Take an example. A small construction company delivers a project to a client company that refuses to pay the balance. The supplier's manager learns, through a former employee, that the client is about to sell its equipment and to create a new entity to which it will transfer its business. These elements, if supported (a Kbis extract showing a sale, a notice of sale, a witness statement), establish a serious threat to recovery. The judge will see in them a sign of insolvency in preparation.

The quality of the file matters enormously. A mere assertion that "the debtor may not pay" is not enough. Tangible, dated and documented indications are needed. The threat must be objective and current, not an abstract fear.

Is the authorisation of the enforcement judge needed?

The principle laid down by Article L. 511-1 is that a precautionary attachment requires the prior authorisation of the enforcement judge (juge de l'exécution, JEX), seised by way of application. The application is made without the debtor being informed: it is the non-adversarial nature of the procedure that guarantees the element of surprise, which is essential to prevent the debtor from emptying its accounts at the last minute.

The territorially competent JEX is, at the creditor's choice, that of the place where the debtor resides (Article L. 511-3 of the CPCE). It examines the application and the documents, then issues an order that authorises or refuses the measure, setting the amount secured.

Cases where authorisation is not required

Article L. 511-2 of the CPCE provides for several situations in which the creditor may carry out a precautionary attachment without the judge's prior authorisation. It then already holds a sufficiently strong title:

• where it holds an enforceable title
• where it holds a court decision that does not yet have enforceable force
• in the event of non-payment of an accepted bill of exchange, a promissory note or a cheque
• in the event of unpaid rent, after a formal demand that has gone unanswered, for leases of buildings

These exemptions simplify the process but do not relieve the creditor of any of the other procedural obligations, in particular compliance with the time limits examined below. In the majority of ordinary business cases (an unpaid invoice with no negotiable instrument), going before the JEX remains the normal route.

Precautionary attachment of a bank account in practice

Precautionary attachment of a bank account is the most formidable tool for neutralising a debtor that is engineering its insolvency, because cash is what disappears fastest. It is governed by Articles L. 523-1 and R. 523-1 et seq. of the CPCE.

How the operation proceeds

Once the JEX order has been obtained (or the applicable exemption), the creditor instructs a commissaire de justice (bailiff) (the new name for huissiers de justice since the reform under Order No. 2016-728 of 2 June 2016) to serve the attachment document on the debtor's bank, as third-party garnishee (tiers saisi).

On receipt of this document, the bank must freeze the sums in the account up to the amount secured by the order. It is required to declare immediately to the commissaire de justice the extent of its obligations, that is, the balance of the debtor's accounts on the day of the attachment. This declaration is crucial: it reveals what could be caught.

One technical point deserves attention: the attachment applies to the balance available on the day of the document. Sums that arrive in the account afterwards are not, in principle, caught by a precautionary attachment of a bank account. Hence the importance of timing and, sometimes, the need to repeat the operation. Certain sums also remain exempt from attachment (income of a maintenance nature, an amount equivalent to the revenu de solidarité active (minimum income benefit) left available to a debtor who is an individual). The unattachable bank balance and the resources that escape attachment are detailed in our article on the debtor's remedies against the attachment of its account.

A practical example

Imagine an IT service provider, the manager of a SARL (French private limited company), who has carried out a development assignment for a client company. The balance of its invoice, several tens of thousands of euros, remains unpaid. It learns that the client, in difficulty, plans to move its cash to an account opened at another institution before filing for insolvency. By obtaining from the JEX an authorisation for a precautionary attachment and having it served quickly on the bank, the provider freezes the account balance before the transfer. The funds are frozen. The debtor can no longer make them disappear. The provider does not yet have the money, but it has safeguarded it while it obtains its judgment.

This is exactly the logic of securing the claim: act quickly, before the cash evaporates.

The mandatory time limits not to be missed

A precautionary attachment is governed by strict time limits, and failure to comply with them causes the measure to lapse (caducité): the freeze falls away, the funds become available again, and the whole benefit of the operation is lost. These time limits are the Achilles heel of creditors who are poorly advised.

Notification to the debtor within eight days

Since the attachment was carried out without the debtor's knowledge, the debtor must be informed of it. The attachment document must be notified to the debtor within eight days of the attachment, on pain of lapse. This notification gives the debtor the possibility of challenging the measure before the JEX.

Starting proceedings on the merits within one month

This is the most decisive time limit for the purposes of this guide. Article R. 511-7 of the CPCE requires the creditor, where it does not yet have an enforceable title, to start proceedings or complete the formalities necessary to obtain an enforceable title within one month of the execution of the measure.

In other words, freezing the accounts is not enough. Within the month, the creditor must bring the matter before the competent court on the merits (summons for payment, application for an order for payment (injonction de payer)) to have its claim recognised and obtain the title that will allow it, later, to collect. Failing that, Article L. 511-4 of the CPCE penalises this inaction by lapse of the precautionary measure. The debtor then regains free disposal of its assets.

A precautionary attachment is therefore not an end in itself: it is the first stage of a two-stage strategy, the second being the proceedings on the merits and then the conversion.

From precautionary attachment to garnishment: the conversion

Once the enforceable title has been obtained, the creditor moves from the defensive phase (freezing) to the offensive phase (collecting). This is the conversion of the precautionary attachment into a garnishment, governed by Articles R. 523-7 et seq. of the CPCE.

The mechanism

When the creditor holds an enforceable title establishing its claim (the judgment given at the end of the proceedings on the merits), it serves on the third-party garnishee, generally the bank, a conversion document. This document turns the freeze into an allocation: the sums that were unavailable are now transferred to the creditor, up to the amount of its claim and the sums available. On the preconditions, the course of the procedure and the obligations of the third-party garnishee, see our complete guide to the garnishment procedure.

The conversion document contains in particular the reference to the order or the title, the statement of the sums claimed as principal, costs and interest, and an order to the third-party garnishee to pay. A copy is also notified to the debtor, which has a period in which to challenge the statement.

The decisive advantage: ranking and priority in time

The major advantage of this two-stage mechanism is that the funds were frozen from the time of the precautionary attachment, even before judgment. The creditor that acted early reserved for itself the sums available on the date of the initial attachment, before other creditors came forward or the debtor arranged its disappearance. The conversion simply gives concrete effect to a right that is already secured.

Let us return to the example of the IT service provider. Its precautionary attachment froze the balance of the client company's account. Within the month, it summoned the client for payment before the commercial court. After several months of proceedings, it obtains a judgment ordering the client to pay. Armed with this enforceable title, it has a conversion document served on the bank, which pays it the sums that had been frozen. Without the initial precautionary attachment, this money would have disappeared before judgment, and the enforceable title would have been worth no more than a piece of paper against a debtor that had become insolvent.

When the debtor fraudulently engineers its insolvency

The focus of this guide is the debtor that does not merely manage badly, but manoeuvres to make itself insolvent. A precautionary attachment is the civil weapon against this behaviour. There is also a criminal dimension that should be known.

Article 314-7 of the French Criminal Code punishes fraudulent organisation of insolvency. It targets the debtor who, with a view to evading the enforcement of a financial judgment, increases its liabilities or reduces its assets, or conceals some of its property. This offence is punishable by three years' imprisonment and a fine of €45,000.

In practice, the civil route (precautionary attachment then conversion) and the criminal route are not mutually exclusive. A creditor that finds transfers of assets manifestly intended to impoverish the debtor may, in parallel with the attachment, consider making a report. But urgency calls first for freezing the remaining assets: the civil route protects the claim, the criminal route penalises the conduct.

What the debtor can raise against the attachment

The procedure is not one-way. The debtor, informed of the attachment by the notification, has means of defence, governed in particular by Article R. 512-1 of the CPCE. It may apply to the JEX to challenge the measure, arguing for example that the claim does not appear well founded in principle, that no circumstance really threatened recovery, or that the formal requirements were not complied with.

The judge may then order release of the attachment (mainlevée) if it considers that the conditions are not met. The debtor may also obtain release by offering sufficient security, for example a bank guarantee covering the amount claimed. Finally, if the attachment was carried out abusively, the debtor may claim damages.

This possibility of challenge reinforces the need for rigour in preparing the initial file. A creditor that attaches on the basis of solid documents and a documented threat secures its measure; a creditor that acts lightly exposes itself to release and a possible costs or damages order.

Conclusion: act quickly, but act properly

A precautionary attachment is one of the few tools that allows a creditor to regain the initiative against a debtor acting in bad faith. Its value lies entirely in its two-stage logic: first freeze the assets, often a bank account, before the debtor engineers its insolvency, then convert the measure into a garnishment once the enforceable title has been obtained, so as actually to collect. Those who wait for judgment before acting too often find empty accounts and vanished assets.

But the power of the tool has a counterpart: its procedural rigour. The eight-day period for notification, the one-month period for starting proceedings on the merits, the quality of the documents supporting the claim and the threat: everything must be mastered on pain of lapse. A badly prepared attachment protects nothing and may rebound on the party that carried it out.

The position is therefore clear: at the first signs that a debtor is seeking to evade its obligations (suspicious cash movements, sale of assets, announced disappearance), do not wait. Have a documented record of the threat and of the claim drawn up, and have the strength of your file checked by a litigation professional before presenting the application to the enforcement judge. The effectiveness of a precautionary attachment is decided in the days that precede it, not in the months that follow.

Frequently asked questions

Can a bank account be attached before there is a judgment?

Yes, that is precisely the purpose of the precautionary attachment of a bank account. With the authorisation of the enforcement judge (or in the cases of exemption under Article L. 511-2 of the CPCE), the creditor can have the sums in the debtor's account frozen before any judgment, provided that its claim appears well founded in principle and that circumstances threaten recovery. The funds are frozen, but not allocated: an enforceable title must be obtained and the attachment then converted in order to collect them.

How long does the account remain frozen after a precautionary attachment?

The freeze remains in place as long as the measure remains valid, that is, as long as the creditor complies with the time limits of the Code of Civil Enforcement Procedures. It must notify the attachment to the debtor within eight days and start proceedings on the merits within one month of execution (Article R. 511-7 of the CPCE). The freeze then lasts until the enforceable title is obtained and converted into a garnishment, or until any release ordered by the judge.

What happens if I do not bring the matter before the court within one month?

The precautionary attachment lapses. Article L. 511-4 of the CPCE penalises the failure to start proceedings on the merits within one month by lapse of the measure. In practical terms, the freeze falls away, the debtor regains free disposal of its assets, and the benefit of the operation is lost. It is one of the most frequent and most serious errors.

What is the difference between a precautionary attachment and a garnishment?

A precautionary attachment is a protective measure: it freezes the sums without transferring them to the creditor, and can be carried out before any judgment. A garnishment (saisie-attribution) is an enforcement measure: it immediately allocates the sums to the creditor, but requires an enforceable title already in hand. Conversion (Articles R. 523-7 et seq. of the CPCE) allows the creditor to move from one to the other once the title has been obtained.

Can the debtor challenge the precautionary attachment of its accounts?

Yes. Informed by the notification, the debtor can apply to the enforcement judge for release (Article R. 512-1 of the CPCE), challenging the basis of the claim, the reality of the threat or compliance with the formal rules. It can also obtain release by offering sufficient security, such as a bank guarantee. If the attachment proves abusive, it can claim damages.

How much does a precautionary attachment cost?

The cost combines the fees of the commissaire de justice, who carries out the measure and serves the documents, and, where applicable, the lawyer's fees for preparing the application and the proceedings on the merits. Part of these costs may be charged to the debtor as part of the judgment. There is no single scale: the amount depends on the nature of the assets attached and the complexity of the file.

What should be done if the debtor transfers its assets in order to become insolvent?

A precautionary attachment makes it possible to freeze the remaining assets urgently before they disappear. In parallel, if the debtor deliberately manoeuvres to evade a financial judgment, Article 314-7 of the French Criminal Code punishes fraudulent organisation of insolvency, with three years' imprisonment and a fine of €45,000. The operational priority nevertheless remains to secure the claim in civil proceedings before bringing any criminal action.