BAILIFFS’ GLOSSARY


LEGAL DOCUMENT : Written legal document
 
PRIVATE CONTRACT  : Legal documents which are not registered in front of a notary are said to be private contracts. For example a lease (rental agreement, professional lease, agricultural lease, commercial lease, management lease, lease of goodwill etc.) or sales agreements of goodwill, company contracts etc. may be executed without formality. The bailiff may thus assist private clients or companies to draft such contracts.
 
LEASE : see above under private contracts
 
CHEQUE : a cheque without funds to cover it may be dealt with thanks to a simple, rapid and inexpensive procedure. The cheque requests a certificate of non-payment from their bank which is transferred to a bailiff. This certificate is equivalent to an order to pay. If payment of the sum due is not made to the bailiff within 15 days, the bailiff will draft an enforcement document which will allow him or her to make a seizure.

CREDITOR : a person or organisation which is owed money

DEBTOR : a person or organisation owing a debt to be paid.

STATE OF THE PREMISES REPORT  : this is a report in which the bailiff describes exactly the state of the rented premises. A state of the premises report is compulsory. The costs are shared between the owner of the premises and the tenant.

ENFORCEMENT PROCEEDINGS : see below Seizures. 

WRIT : the name of the bailiff’s legal document in ancient times.

EVICTION :the law authorises a property owner to request the eviction of tenants who do not pay their rent. The eviction procedure may commence 2 months after an order to pay remains unpaid. The bailiff duty must firstly try to reach a compromise agreement with the tenant who may request the court for an extension of time for payment. If the compromise agreement is unsuccessful, the court will deliver a judgment. The bailiff then serves an order to quit the premises and after another 2 month period proceeds to evict the tenant if s/he has not already left of his or her own accord.

MORTGAGE : in order to guarantee the payment of the debt, a creditor may request that a bailiff registers the mortgage, ie. a right over the real estate of the debtor. Should there be a sale of the mortgaged property, the creditor will be indemnified in priority.

ORDER TO PAY : in order to obtain repayment of a debt which cannot be defended, the bailiff may use a simple procedure known as the order to pay. The bailiff presents the creditor’s claim to the court having jurisdiction. The court delivers a decision without hearing the debtor. The debt may be thus paid without a formal hearing taking place. However this procedure will not deprive debtors of their right of appeal. The debtor may, at any time, request that a full hearing take place.

ENFORCEMENT JUDGE : judges nominated under the law of 9th July 1991 for resolving disputes involving seizures.

PROVISIONAL MEASURES  : while awaiting a judgment, the bailiff may reassure the creditor by offering him or her a provisional guarantee that the debt will be paid. This guarantee may take one of several different forms : please see in this glossary ‘mortgage’ and ‘conservation seizure’.

ORDER ON ENQUIRY  : in order to reassure a creditor that s/he will be paid or in order to guarantee to a person who has suffered damage or losses that the cause will recorded, the bailiff may use an emergency procedure known as an order on enquiry. With the authorization of a judge, the bailiff may seize goods or other property of value in order that the debtor may not dispose of them. The bailiff may enter the premises of a person suspected of committing an offence without informing such person in advance in order to draft a report to prove its existence. This procedure which is subject to very strict conditions (referred to a judge, intervention of a lawyer), allows the bailiff to effectively pursue complaints which s/he has received.

FAMILY SUPPORT PAYMENTS : when family support payments remain outstanding, the bailiff will take action to ensure direct payment. S/he may also obtain the payment of up to six months’ arrears of payments. PLEASE NOTE: the costs of this procedure are payable exclusively by the debtor. The person owed the family support payments does not have to pay to enforce his or her rights.

PROTET :a legal document where a bailiff certifies the non-payment of a bill of exchange. Once drafted, the protet takes into account accrued legal interest.

LEGAL REPRESENTATION IN COURT  : The bailiff may represent his or her clients in certain courts. Especially in the commercial court (Tribunal de commerce), the lower court of first instance (tribunal d'instance),the agricultural rents tribunal (tribunal paritaire des baux ruraux) and on emergency applications in certain circumstances (le juge des référés).

ATTACHEMENT OF EARNINGS  : this method is under the control of a judge and is immediately enforceable if the an attempt at settlement with the debtor is rejected. The bailiff contacts the debtor’s employer in order to notify the employer of the amount due. The employer must then, each month, deduct the maximum amount prescribed by the law and transfer it to the bailiff until the full amount of the debt has been paid. PLEASE NOTE: the law prescribes that an amount equivalent to income support (RMI) should be left for the debtor whatever the amount of the debt.

FREEZING A BANK ACCOUNT  : allows the bailiff to transfer the amount seized directly from the debtor’s bank account to the creditor’ account who then becomes the owner while the sum remains frozen for a month to allow the debtor the possibility to challenge the seizure in court. After the one month time limit during which the sum remains frozen has run out, the creditor may access the sum due if s/he successfully defends any challenge by the debtor.

PREVENTATIVE MEASURES  :the bailiff may apply to the enforcement judge for authorisation to take preventative measures by means of an action known as a saisie-conservatoire. This serves as a security to creditors by temporarily blocking the goods of the debtor while awaiting judgment.

SEIZURE AND SALE  : at the debtor’s residence or wherever the debtor has property, the bailiff makes an inventory of the goods and chattels belonging to the debtor. Once the goods have been indexed they remain where the bailiff found them and may not be moved until the debt is paid. If the debtor does not pay the full amount of the debt or does not agree to pay by installments, the goods seized may be sold within a time limit of one month either directly by the debtor (voluntary sale) under the control of the bailiff, or in an auction room (compulsory sale). Seizure and sale may be applied to all types of personal assets (not only goods and chattels but also the shares in a company, the contents of a safe, vehicles etc.) even if they are held by a third party. PLEASE NOTE : only one seizure in 100 results in the sale of goods belonging to the debtor.

SEIZURES : an action by which the bailiff obtains the reimbursement of debts. As opposed to recovery companies, only a bailiff is able to enforce a judicial decision on the issue. Only the bailiff may allow a creditor to claim not only the debt but also any legal interest due on it.

SERVICE : is a legal term used where the contents of a judgment or a legal document are made known to a person.

ORDER TO PAY : a legal document whereby the bailiff informs a person that s/he is obliged to pay a debt. This legal document is not executory ie. the debtor may not be compelled to pay. However from the date of the order interest will accumulate on the amount due. Therefore, if the debtor does not intend to challenge the debt, it is in his or her interests to pay the debt at this stage in the procedure.

FIXED FEES : the bailiff’s fees which are not freely agreed between the parties. Save for particular cases, fees are fixed by a Decree. In this way the bailiff receives a fixed amount for each action that s/he completes. According to the amounts s/he has recovered, he also receives a proportional amount on a decreasing scale. S/he may obtain the reimbursement for certain expenses incurred in the performance of his or her duties. For certain activities the bailiff may claim open fees.

EXECUTORY DECISIONS : decisions delivered by a court or a legal document generally drafted by a notary which legally allows a bailiff to compel a debtor to pay a debt (please see cheque and seizures).