Provisional Attachment and Garnishment
Explanation
These rules aim to regulate the procedures of precautionary attachment (la saisie conservatoire) and the attachment of the debtor's property in the hands of a third party (la saisie-arrêt). These are simplified study explanations to explain the provisions. They are not a substitute for the explicit legal texts. The creditor (le créancier) submits his request by a petition to the head of the execution department (le chef du bureau d'exécution). He requests to levy an attachment on the property of his debtor or in the hands of a third party to secure his right. He attaches to his request the debt documents and necessary papers.
It is required that the debt for which the attachment is requested be due for performance. It must not be contingent on a condition that has not yet been fulfilled. The exception is the cases specified by the Code of Obligations and Contracts (le Code des obligations et des contrats) (Article 111). If the debt is not proven by a deed, the head of the execution department has the authority to order the attachment. This is done if there is evidence making its existence probable. If its amount is not determined, the head of the department estimates it temporarily. The accrued interests and the interest of one unaccrued year are added to the principal. The expected fees and expenses are also added.
The execution agent (l'agent d'exécution) undertakes the execution of the attachment measures. He notifies the decision to the debtor after it is levied. He notifies it to the real estate registry secretariat through the auxiliary office if it falls on a real estate property. He notifies it to the official departments competent in keeping records and documenting transactions. These procedures are subject to the rules of executory attachment (la saisie exécutoire) on movable or immovable property. What contradicts the purpose and nature of the precautionary attachment is excepted. The precautionary attachment turns into an executory one upon the issuance of an executable judgment proving the creditor's right. It also turns into an executory one by the expiration of the warning period without objection if the deed is directly executable.
A creditor whose liability is encumbered by a debt to his debtor may attach this debt in his own hands (la saisie entre mains propres). It is required that the debt is not extinguished by set-off (la compensation). This is notified to the attached debtor (le débiteur saisi). The attached debtor or any interested party has the right to submit a request to the head of execution. He requests to compel the attaching party to deposit the money in the department's fund or in an acceptable bank. The time limit for the deposit is set according to the rules of urgent matters. If the attaching party fails to deposit, the attachment falls by law. The head of the department declares its fall by an official decision.
The attachment of the debtor's property in the hands of a third party (le tiers saisi) covers every debt that arose in his liability. This includes debts up to the time of his declaration. The attachment allocated to a specific or periodic debt is excepted. If the branches of the attached party are multiple and the attaching party does not specify a branch, the attachment applies by law to the main center in Lebanon and its branches. The notification in this case is made to the main center. The attaching party and the attached debtor may litigate against the attached party regarding the validity of his declaration. This is done before the competent court according to general rules. A fine of LBP 1,000,000 to LBP 10,000,000 is imposed on the bad faith party along with compensation. (fifty times the amount stated in the text of the article, pursuant to Decree No. 13909 dated 12/9/2024). Whoever conceals movables in bad faith is subject to the penalty for embezzlement and destruction of attached property.
Official legal articles
amend · 1992-05-14: Open the official text
amend · 2000-09-14: Open the official text
amend · 2024-09-19: Open the official text
Think deeper
How is the authority of the head of the execution department to temporarily estimate the undetermined debt related to the condition of making its existence probable in the absence of a deed, and what is the procedural purpose of adding unaccrued interests and expenses to the principal debt?
Flashcards
What is the principle and the exception regarding the requirement that the debt be due to levy a precautionary attachment?
The principle is that it is not permissible to attach for a debt that is not due for performance. It is not permissible to attach for a debt contingent on an unfulfilled condition. The exception is the cases specified by the Code of Obligations and Contracts (Article 111).
What is the authority of the head of the execution department if the debt for which the attachment is requested is not proven by a deed?
He may order the levying of the precautionary attachment whenever he has evidence making the existence of this debt probable.
What are the amounts that the head of execution adds to the principal debt if its amount is not determined?
He adds the accrued interests, the interest of one unaccrued year, and the expected fees and expenses.
When is the precautionary attachment decision notified to the debtor?
The execution agent notifies the attachment decision to the debtor after levying the attachment.
When does the precautionary attachment turn into an executory one if it is based on a directly executable deed?
It turns into an executory one after the expiration of the warning period without submitting an objection to the execution.
What is the effect of the failure of the attaching party in his own hands to deposit the money within the time limit set for him?
The attachment falls by law and its fall is declared by a decision from the head of the execution department upon the request of the deposit requester against the attaching party.
What is the effect of the attaching party not specifying a particular branch if the attached party has multiple branches?
The attachment applies by law to the main center located in Lebanon and to its branches located therein, and the notification is made to the main center.
What is the fine imposed on the attached party if his bad faith in his declaration is proven?
He is sentenced to a fine of LBP 1,000,000 to LBP 10,000,000, reserving the right of the attaching party to compensation for the damage he suffered due to delay and expenses. (fifty times the amount stated in the text of the article, pursuant to Decree No. 13909 dated 12/9/2024).
Practice questions
To which judicial authority is the request for authorization to levy a precautionary attachment on the debtor's property submitted?
The law states that the precautionary attachment request is submitted by a petition to the head of the execution department (Articles 866 and 867).
If the debt is of an undetermined amount when submitting the attachment petition, how does the head of the execution department act?
The law requires estimating the debt temporarily if its amount is undetermined. The head of the execution department adds accrued interests, one year's interest, and expected fees to the principal (Article 867).
What is the legally imposed procedure for notifying a precautionary attachment decision related to a real estate property?
The law requires notifying the attachment decision to the real estate registry secretariat through the auxiliary office if related to real estate. The decision is also notified to the debtor after levying the attachment (Article 869).
When does the precautionary attachment turn into an executory attachment if the creditor's right is not based on a directly executable paper?
The law establishes that the precautionary attachment turns into an executory attachment upon the issuance of an executable judgment. This judgment must prove the creditor's right (Article 871).
In the attachment of a debt in the hands of the creditor, what is the penalty resulting from the failure to deposit the money in the fund or bank within the specified time limit?
The law states that failing to deposit the money within the specified time limit drops the attachment by law. Its fall is declared by a decision from the head of the department upon request (Article 883).
What is the temporal scope of the debts covered by the attachment in the liability of the attached party as a general rule?
The law specifies that the attachment covers every debt arising for the debtor in the attached party's liability until his declaration. This excludes attachments allocated to a specific or periodic debt (Article 886).
What is the penalty to which the attached party is subjected if he conceals or attempts to conceal the disputed movable properties in bad faith?
The law imposes the penalty for embezzlement and destruction of attached property on the attached party. This applies if he conceals the movable properties or attempts to conceal them in bad faith (Article 891).
Case problems
A creditor submitted a petition to the head of the execution department requesting authorization to levy a precautionary attachment on a real estate property owned by his debtor. The creditor attached to the petition a set of documents and correspondence indicating the emergence of a debt due for performance in the debtor's liability, but he did not attach an official deed for the debt. The head of the execution department decided to levy the attachment due to the availability of evidence making the existence of the debt probable. After the issuance of the decision, the execution agent immediately proceeded to notify the debtor of the decision before registering it with the real estate registry secretariat. The debtor objected to the procedures, requesting the invalidation of the attachment for two reasons: the first is the absence of an official deed for the debt, and the second is the invalidity of the notification procedures for violating the rules.
Model answer
Regarding the first reason related to the debt not being proven by a deed: If the debt is not proven by a deed, the head of the execution department may order the levying of the precautionary attachment whenever he has evidence making the existence of this debt probable (Article 866). Since the creditor attached documents and correspondence that made the existence of the due debt probable, the decision of the head of execution is legally sound, and the debtor's objection in this regard is rejected.
Regarding the second reason related to the notification procedures: The execution agent performs the necessary acts and procedures to levy the attachment on the properties decided to be attached. He notifies the attachment decision to the real estate registry secretariat through the auxiliary office if it is related to a real estate property, as well as to the debtor after levying the attachment (Article 869).
It follows from this that the notification to the debtor must occur after levying and executing the attachment. The execution agent's haste to notify the debtor in advance before notifying the real estate registry secretariat violates the explicit procedural order imposed by law (Article 869).
Self-grading rubric
A debt was established in the liability of a person in favor of his debtor, and this debt had not been fulfilled by way of set-off. This person submitted a request to the head of the execution department to attach the debt in his own hands to secure a right he claims, and the attachment was notified to the attached debtor. Following that, the attached debtor submitted a request to the head of the execution department seeking to compel the attaching party to deposit the money in the department's fund, so the head responded to the request and set a time limit of twenty days for the attaching party to deposit. The entire time limit expired without the attaching party proceeding to deposit the money, so the attached debtor submitted a request to declare the fall of the attachment. The attaching party adhered to the claim that the fall requires filing an ordinary lawsuit before the judiciary of merits and is not decided by the head of execution.
Model answer
The creditor whose liability is encumbered by a debt in favor of his debtor has the right to request the attachment of this debt in his own hands unless it has been fulfilled by way of set-off, and the attachment is completed by notifying it to the attached debtor (Article 883).
The head of the execution department, upon a request submitted by the attached debtor or any interested party against the attaching party, may order the latter to deposit the money in the department's fund or an acceptable bank within a time limit he sets. The head of the department considers this request according to the rules followed in urgent matters.
In the event of failure to deposit the money within this specified time limit, the attachment falls by law. Its fall is declared by a decision issued by the head of the execution department upon the request of the deposit requester against the attaching party according to the rules of urgent matters (Article 883).
Accordingly, the attaching party's defense regarding the necessity of filing a lawsuit before the court of merits is not based on a legal foundation, as the jurisdiction is vested in the head of the execution department to declare the inevitable fall of the attachment by an urgent ex parte decision.
Self-grading rubric
A creditor levied a precautionary attachment on his debtor's funds at a bank that owns multiple branches, without specifying a particular branch in his request. The decision was notified to the main center, so the bank declared the absence of any amounts for the debtor. The creditor later proved the existence of an account for the debtor in one of the bank's branches that was open before the time of the declaration, and that the bank's refraining from mentioning it in the declaration was done in bad faith to thwart the attachment. It was also proven that the bank deliberately concealed movable properties of the debtor deposited with it. The creditor inquired about the procedures and penalties available to him against the bank under the Code of Civil Procedure.
Model answer
Regarding the scope and application of the attachment: If the attached party has multiple branches and the attaching party does not specify a particular branch, the attachment applies by law to the main center located in Lebanon and to its branches located therein, and the notification is made to the main center (Article 886). Consequently, the attachment covers every debt that arose for the debtor in the liability of the bank and its branch up to the date of the declaration.
Regarding the dispute over the declaration and bad faith: The attaching party may litigate the validity of the attached party's declaration by summoning him before the competent court according to the general rules (Article 891). If it appears that the attached party was in bad faith, he is sentenced to a fine of LBP 1,000,000 to LBP 10,000,000, reserving the right for the attaching party to compensation for the damage he suffered due to delay and expenses. (fifty times the amount stated in the text of the article, pursuant to Decree No. 13909 dated 12/9/2024).
Regarding the concealed movable properties: The execution agent, based on the permission of the head of execution, may enter the place where those properties are located and levy the attachment on them. If it is proven that the bank, as an attached party, has concealed them or attempted to conceal them in bad faith, it is subjected to the penalty for embezzlement and destruction of attached property (Article 891).