Originally from Attachment of Assets

1. What is the general nature and effect of judicial measures available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgments to be obtained (“attachments”)? Freezing property in place? Placing of a third party, such as a court official, sheriff or marshall?

According to Belgian civil procedural law, a distinction has to be made between conservatory attachments (bewarend beslag, saisie conservatoire/seizure for security) and attachments in execution (uitvoerend beslag, saisie exécutoire/enforcement of judgments). Both are regulated by the Belgian Judicial Code (Gerechtelijk Wetboek, Code Judiciaire, art. 1413-1493 (conservatory attachments) and 1494-1675 (attachments in execution)).

By means of a conservatory attachment the plaintiff can limit the authority of the debtor to dispose of his assets. The attached assets are put “in the hands of justice” (onder de hand van het gerecht, sous les mains de la justice), thus guaranteeing further execution. However, the debtor is not deprived of his property rights. Furthermore, he remains in possession of the attached assets: these are not frozen in place, nor – as a principle – placed in the custody of a third party. The rights of enjoyment of the debtor also remain unlimited. The attachment only deprives him of his authority of disposal with regard to the attached property. This deprival however, has a relative character: the debtor still has the – factual – possibility of alienating or encumbering the attached assets, but these legal acts cannot be opposed to the plaintiff(s).

An attachment in execution on the other hand, is aimed at the sale of the attached assets. The proceeds of this sale – that can either be held in public or privately – are used as a means of paying off the plaintiff(s). An attachment in execution is not a protective measure. In addition, it presupposes the existence of a judgment or another entitlement to enforcement (such as a notarial act). As a result, this type of attachment does not correspond to the definition of an attachment given above (“a judicial measure available for plaintiffs to obtain provisional relief affecting property of debtors to obtain security for judgment to be obtained"). For this reason, it will not - or only marginally - be discussed in this text.