A judgment that is never enforced is a worthless piece of paper. Attachment is the tool that converts an adjudicated right into money actually received — or preserves the right before judgment is even given.
Contents
1) Types of Attachment
The Civil and Commercial Procedure Law governs attachment and execution. Its principal forms are:
- Precautionary attachment: an interim measure preventing the debtor from dealing with assets pending determination of the right.
- Executory attachment: effected under an enforceable instrument to sell the asset and satisfy the debt from its proceeds.
- Garnishment: over assets of the debtor held by a third party — a bank account or salary.
- Attachment of assets in the debtor's own hands, within the prescribed limits.
2) Precautionary Attachment
Obtained by order on petition, generally requiring:
- A debt of established existence, even if not yet confirmed by judgment.
- A fear of losing the security — such as dissipation of assets or the debtor's departure.
- Provision of security in the cases the judge determines.
3) Executory Attachment
Available only under an enforceable instrument: a final enforceable judgment, an order for payment, or an official deed carrying executory force.
- Service of the instrument and formal demand for payment.
- Levying the attachment over movables or immovables.
- Inventory of attached assets and appointment of a custodian.
- Sale by auction and distribution of proceeds among creditors.
4) Garnishment
Mechanism
The garnishee is served and must retain what it holds for the debtor, then declare its holdings before the competent authority.
Subject matter
Bank accounts, wages and salaries within the prescribed limits, and sums owed to the debtor by clients or tenants.
5) Assets Exempt from Seizure
The legislator ensured a debtor is not stripped of the means of living, exempting from attachment:
- What the debtor and their family need as necessities of life.
- Tools of trade required to practise their occupation.
- A portion of wages within the statutory proportions.
- Whatever is declared unattachable by specific provision, such as certain pensions and allowances.
6) Execution Objections
- Interim objection seeking a stay pending determination.
- Substantive objection going to the right or the instrument itself.
- Disputing the validity of procedure — service, demand, inventory.
- Challenging the valuation of attached assets or the auction process.
7) Recovery Claims
A person whose property is attached although they are not the debtor may bring a recovery claim establishing ownership of the attached asset.
- Filed before the competent execution authority.
- The burden of proving ownership rests on the claimant.
- Documents bearing a fixed date preceding the attachment are the strongest.
8) Practical Guidance
For creditors
- Trace the debtor's assets before filing, not after.
- Seek precautionary attachment where dissipation is feared.
- Never miss the deadline for validating proceedings.
- Follow execution personally rather than leaving it to paperwork.
For debtors
- Check the validity of service and the demand for payment.
- Verify the attached asset is not exempt.
- File any objection within its period.
- Seek settlement or instalments before the sale stage.
