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Prejudgment Attachment of Movables in French, Dutch and English Law

Published online by Cambridge University Press:  21 May 2009

J.P. Verheul  and
J.A. Wade
J.P. Verheul
Affiliation:
Emeritus Professor of Private International Law at Leyden University; former Head, Department of Private International Law of the T.M.C. Asser Instituut.
J.A. Wade
Affiliation:
Head, Legal Translations Section of the T.M.C. Asser Instituut.
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Extract

Attachment of assets belonging to a debtor is liable to abuse, especially if the existence of the claim is contested and doubtful. That is why the rule has been developed mat attachment, in principle, is only permitted after a court has established the existence and validity of the claim. The court may do so in a final judgment which at the same time orders the debtor to pay. Thus, the attachment is nothing else than execution of the judgment However, in many countries a prejudgment attachment may be levied for fear that otherwise the debtor would spirit away bis assets pending proceedings. Sometimes this institution is coupled with special kinds of proceedings (e.g., replevin, unfair competition, landlord and tenant). This paper, however, is chiefly concerned with the general type of prejudgment attachment, and with the conditions under which it is permitted. It has been thought of interest to trace its vicissitudes through French, Dutch and English law. Dutch law has generally leaned heavily on the Napoleonic codification, but showed some independence precisely on this point English law is generally not indebted to French law, except perhaps precisely on this point.

Type
Research Article
Information
Netherlands International Law Review , Volume 39 , Special Issue S1: Law and Reality , October 1992 , pp. 377 - 390
Copyright
Copyright © T.M.C. Asser Press 1991

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References

1. Pothier, , Oeuvres complètes, vol. II (1835 ed.) p. 1344.Google Scholar

2. Nouvelle Coutume de Paris, s. 173.Google Scholar

3. Cf., Engelman, A. et al. , (translated R.W. Miller), A History of Continental Civil Procedure (1928) p. 501Google Scholar, on attachment against dubious debtors in canonical law, borrowed from Lombardian law.

4. Ss. 417 (urgent commercial cases), 557 (saisie-arrêt = garnishment), 819 (saisie-gagerie = distress for rent), 822 (saisie foraine). Commercial Code, ss. 172 and 187, now 158 and 185 (in matters of bills of exchange and promissory notes).

5. In the absence of written evidence, leave was required, apparently just to enable the judge to establish the prima facie existence of the claim, not from any fear of defrauding creditors. See Carré, G.L.J., Les lois de la procédure civile, vol. II (1833) p. 317Google Scholar. Perhaps attachment of debts was considered less burdensome or a debt as an asset more liable to ‘disappear’, to wit, simply by payment.

6. This Code is called ancien. Most parts of it have now been superseded by the Nouveau Code of Civil Procedure (Décret of 5 12 1975Google Scholar) but the said sections of the ancient Code are still in force. The used place in mat Code was vacant because former sections numbered 48 to 57 had been abolished earlier. See on this general form of saisie conservatoire, Herzog, P., Civil Procedure in France (1967) p. 235Google Scholar et seq.; Vincent, J. and Prévault, J., Voies d'exécution (1984)Google Scholar (Précis Dalloz) p. 92 et seq.; Jauffret, A., Manuel de procédure civile et voies d'exécution (1984) pp. 220–221Google Scholar; Crosio, A., Les mesures conservatoires, loose-leaf ed., p. 20 et seq.Google Scholar; Nouveau Répertoire Dalloz, sub voce saisies conservatoires.

7. Cour de cassation 17 04 1961, D. 1961 644; J.C.P., 1961.II.12187.Google Scholar

8. Cour de cassation 7 11 1988Google Scholar, La semaine juridique, 1989. IV. 14.Google Scholar

9. Cour de cassation 13 10 1977, D, 1978.I.R.92.Google Scholar

10. Court of Appeal Paris 30 May 1973, D, 1974.Somm. 16 (the debtor was a bank).

11. Cour de cassation 12 05 1976, D, 1976.I.R.230.Google Scholar

12. This also goes for Dutch law; see, Court of Appeal Amsterdam 10 My 1986, KG 1986 no. 453 (ICC arbitration); and District Court Dordrecht 25 February 1976, NJ 1977 no. 430.

13. Honett, J. v.d., Handboek voor de burgerlijke rechtsvordering [Manual on civil procedure] (1839) p. 691.Google Scholar

14. District Court Haarlem 22 October 1976, NJ 1977 no. 321. District Court Den Bosch 12 June 1981, NJ 1981 no. 634.

15. Court of Appeal The Hague 24 November 1988, NJ 1989 no. 912. District Court Middelburg 18 August 1978, NJ 1979 no. 591, with a note by W.H. Heemskerk, with references pro and contra.

16. Cf., District Court Middelburg 30 November 1983, NJ 1984 no. 595.

17. Thus, the Government's explanation in 1828, see supra, n. 13.

18. However, a court order to deliver an immovable may, as if it were a document signed by the parties, convey the ownership if and when registered: HR 3 April 1987, NJ 1988 no. 276, overruling HR 23 June 1899, W 1899 no. 7302, and anticipating Arts. 300 and 301 Book 3 New Civil Code (in force 1 January 1992). This rule already existed for ships registered in the Netherlands and was contained in Arts. 318 and 757 Commercial Code, now Arts. 199 and 790 Book 8 New Civil Code. Attachment of such ships with a view to delivery was made possible in 1952.

19. These amendments (in force 1 January 1992) introduced conservatory attachment with a view to recovery or delivery of movables: Arts. 730–737. Fear of dissipation of assets is not required. After obtaining a judgment the creditor may have it executed by the bailiff in the manner of a forced specific performance: Art. 492.

20. HR 22 June 1928, NJ 1928 no. 1322 (a bank had failed as of a certain date to render an account of its administration held on behalf of the plaintiff: prima facie case).

21. HR 22 April 1927, NJ 1927 no. 641. District Court Roermond 3 February 1955, NJ 1956 no. 424.

22. Court of Appeal The Hague 25 January 1940, NJ 1940 no. 468.

23. District Court The Hague 22 November 1918, W 1919 no. 10428.

24. Court of Appeal The Hague 10 April 1941, NJ 1941 no. 617.

25. District Court Dordrecht 13 July 1964, NJ 1965 no. 363.

26. District Court Den Bosch 12 June 1981, NJ 1981 no. 634.

27. HR 22 April 1927, NJ 1927 no. 641; District Court Groningen 8 June 1951, NJ 1952 no. 501.

28. HR 2 April 1936, NJ 1936 no. 758 (real estate); District Court Breda 10 September 1940, NJ 1941 no. 547; District Court Dordrecht 25 February 1976, NJ 1977 no. 430 (a tug).

29. Nippon Yusen Kaisha v. Karageorgis and another, [1975] 1 WLR 1093, C.A.

30. Nippon Yusen Kaisha v. Karageorgis and another, [1975] 1 WLR 1093.

31. [1975] 2 Lloyd's Rep. 509, C.A.

32. (1881) 16 Ch. D. 660 at 661, per James LJ.

33. [1975] 2 Lloyd's Rep. 509 at 510.

34. Supreme Court Act 1981, s. 37; Criminal Justice Act 1988, ss. 76–78.

35. Barclay-Johnson v. Yuill, [1980] 1 WLR 1259.

36. SCF Finance Ltd. v. Masri and Another, [1983] 1 WLR 876.

37. Derby & Co. Ltd. v. Weldon and Others, [1989] 2 WLR 276.

38. Siporex Trade SA v. Comdel Commodities Ltd., [1986] 2 Lloyd's Rep. 428.

39. Derby & Co. Ltd. v. Weldon and others, [1989] 2 WLR 276.

40. In re Oriental Credit Ltd., [1988] 2 WLR 172.

41. Z Ltd. v. A-Z and AA-LL, [1982] 1 Q.B. 558, per Lord Denning MR at 573, C.A.

42. Steamship Mutual Underwriting Association (Bermuda) Ltd. v. Thakeur Shipping Co. Ltd., [1986] 2 Lloyd's Rep. 439.

43. A v. B, [1989] 2 Lloyd's Rep.: cause of action would arise when a ship, suspected of not being in good condition and therefore constituting a non-performance of the contract, was delivered.

44. TSB Private Bank International SA v. Chafara, [1992] 1 WLR 231.

45. [1979] A.C. 210, HL.

46. Implementation of the Brussels Judgments Convention 1968 by the Civil Jurisdiction and Judgments Act 1982 would now produce a different result on the facts of the case. The principles laid down regarding injunctions remain valid. The court also confirmed that an injunction cannot stand alone under Order 11 RSC: it must be linked to substantive relief within the order, irrespective of the merits of the plaintiff's case. This is consistent with the principle that no injunction can be granted unless it is in support of a legal or equitable interest.

47. Third Chandras Shipping Corp. v. Unimarine SA, [1979] 1 Q.B. 645.

48. X v. Y and Y Establishment, [1989] 3 WLR 910.

49. Republic of Haiti v. Duvalier, [1989] 2 WLR261, C.A.

50. Babanaft International Co. S.A. v. Bassatne, [1989] 2 WLR 232, C.A.

51. Cf., Rosseel N.V. v. Oriental Commercial Shipping (U.K.) Ltd., [1990] 1 WLR 1387, C.A.: plaintiff's application for a worldwide Mareva injunction pending proceedings to enforce an arbitration award made in New York refused because of lack of sufficiently exceptional features to justify making an extraterritorial order.

52. Derby & Co. v. Weldon, [1989] 2 WLR 412, C.A.

53. Ali and Fand Shobokshi Group v. Moneim, [1989] 2 All ER 404.

54. Behbehani v. Salem, [1989] 2 All ER 143, C.A.

55. Brink's-Mat v. Elcombe, [1988] 3 AU ER 188, C.A

56. Galaxia Maritime SA v. Mineralimportexport, [1982] 1 WLR 539, C.A.

57. See T.S.B. Bank International v. Chabra, [1992] 1 WLR 231, at 241 per Mummery, J., ‘…the practice of the court on the grant of Mareva injunctions is an evolving one which has to remain flexible and adaptable to meet new situations as and when they arise’.