I am launching a new information series relating to cultural concepts in regards to doing business in France. This is the first and in this blog, we will focus on the notion of asset freezing or as it is known in France “la saisie conservatoire”.
As a dual citizen, I am all to aware of the difficulties in understanding French concepts of English business and legal concepts… The language, like the culture, while romantic, remains so distant to many anglosaxons. It is no surprise that anglosaxons globally prefer doing business in – well – English-speaking countries…. Familiarity of the language (forget the plethora of accents extant) make it that much easier… Thoughtless, really.
So you are one of the braves who has purchased an item e.g car, boat, house, plane, service, or has sold an item or even a bank (or lending institution) who has lent money to a French individual, company, etc. And you are owed money. I will not speak of the consumer protection concepts here in France, but know they exist!
Contracts have legal status
There is a beautifully written piece of legislation written in the French Civil Code, and anyone working in contract enforcement will quote it because of it’s legal force… Remember it… for it gives enforceable legal force to contractual arrangements. “Les conventions légalement formées tiennent lieu de loi à ceux qui les ont faites… Elles doivent être exécutées en bonne foi.”
So using this legal maxim, written in by the French legislator, you can seek to freeze assets of an individual, company, association, etc. But be warned, once the process of a “saisie conservatoire” has commenced, the steps to be followed must be undertaken in the proper legal order AND delays MUST be kept to the T!
A party seeking a “saisie conservatoire” must be mindful that there is no ONE SIZE FITS ALL procedure in France! One of the first things to bear at the fore is the type of asset for which the “saisie conservatoire” is being sought. Once the asset has been identified, among the other equally important information are location of the asset AND JUDICIAL COMPETENCE!
Judicial competence is important because, of course, if the process is introduced before the wrong Judge or wrong court (some judges and tribunals have exclusive competence based on the type of matter) your initial request could be thrown out! Also, there is the advantage of saving on court fees when introducing the matter before the Judge who is exclusively competent!
Similarly, delays must be respected after initial introduction. Once a request for a “saisie conservatoire” has been initially introduced, there are other mandatory procedures and a time-frame within which these must be fulfilled. Some of the criteria the court will look at in ensuring that the introducing party has fulfilled those requirements are the type of intermediary proceeding (is it of a summary nature?), judicial incompetence, service of process, etc. Of course the non-respect of delays will affect obtaining the final order which is the “titre exécutoire” and indeed, the execution of same.
And finally, it is worth bearing in mind that a request for a “saisie conservatoire” can be introduced even during insolvency proceedings or Chapter 11 proceedings!
Marcia B Moulon-Atherley, Attorney at Law and Avocat à la Cour
Law Office of Marcia B. Moulon
Copyright Marcia B. Moulon-Atherley, Esq. 2012-2015. All Rights Reserved.