Precautionary Attachment

Precautionary attachment is the temporary seizure of the debtor’s assets to secure the future collection of a monetary claim (Enforcement and Bankruptcy Law Arts. 257-268). In commercial disputes, it is the most effective tool to prevent a debtor from disposing of assets during litigation or enforcement.

Conditions

• Due claim: Precautionary attachment may be requested for a due monetary claim not secured by a pledge.
• Claim not yet due: It may also be requested for claims not yet due if the debtor has no fixed domicile or is preparing to hide or remove assets or abscond.
• Prima facie proof: The creditor must establish the existence of the claim and the ground for attachment to the court’s satisfaction. Bills of exchange, invoices and correspondence are used for this.

Security

The creditor provides security against the losses the debtor and third parties may suffer if the attachment proves unjustified. The court may waive security if the claim is based on an official document or judgment.

Enforcement and Deadlines

• Enforcement of the order must be requested from the enforcement office within ten days of the order.
• For an attachment obtained before a case, the creditor must start enforcement proceedings or file a case within seven days of enforcement of the attachment.
• The debtor may object to the order within seven days of enforcement.

Importance in Practice

Precautionary attachment gives the creditor bargaining power; attachment of the debtor’s bank accounts or receivables often speeds up settlement. An unjustified attachment, however, exposes the creditor to damages.

For non-monetary subject matter, an interim injunction is requested. Enforcement after attachment is usually carried out through enforcement without judgment. A request for precautionary attachment in commercial cases is not subject to mandatory mediation.