Debt "in the making"

Garnishment is a protective procedure useful to any creditor seeking to ensure the payment of sums due to them.

This procedure has two major advantages:

• It is a non-contradictory procedure: the creditor can therefore create a real surprise effect against their debtor who will find themself deprived of their goods without being notified beforehand;
• It can concern different types of property: bank accounts, vehicles, furniture, etc. It is up to the creditor to judge which type of property will best enable them to recover their debt.

It is possible for a creditor to use this procedure when they have an enforceable title. However, in some situations a creditor may not have a title. If the latter can be obtained through a contentious procedure, the time limits for doing so may allow the unscrupulous debtor to organise their insolvency.

The Monegasque legislator therefore offers the creditor who does not have an enforceable title the possibility of protecting their rights by carrying out a seizure by requesting prior authorisation from the judge.

Under the terms of constant case law, a certain principle of claim presenting a sufficiently obvious character is required to validly allow obtaining and carrying out a protective attachment.

On the other hand, neither the demonstration of a liquid and payable claim nor the existence of an imminent danger is required.

Thus, the court of first instance has held on several occasions that "the absence of a writ of execution may be replaced by the authorisation of the judge, provided that the applicant justifies in support of his application a certain principle of claim that is sufficiently obvious, even if the demonstration of a liquid and payable claim is not required. If the applicant does not have to prove a claim that is certain at this stage of the procedure, it must nevertheless exist in germ.”

While the debtor may of course request the seizure to be lifted by the interim relief judge if they consider it unfounded, the constraint exerted by the seizure may encourage the debtor to settle the sums due or, at the very least, to initiate discussions between the parties, thereby breaking the deadlock.