Attachment of Assets - Looseleaf
Attachment of Assets - Electronic
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 it in the custody of a third party, such as a court official, sheriff or marshall?
Tunisian system regarding the right for plaintiff to secure his debt, considers two aspects : a general privilege over the debtor's assets; an attachment of assets.
(a) The general privilege over the debtor's assets result from a contract either a mortgage or a pledge. These contracts are very formal in the way than some legal principles such as description of the asset, location, value and terms of the credit a loan must be included in such contracts. The privilege grants a permanent security to the creditor until full reimbursement of the debt and the fact, by the debtor to sell or distract any of the assets is considered as a fraud and criminal offence.
(b) The attachment of the debtor assets result always from a court order. If the plaintiff is holding a "title" such as a debt recognition, a bill of exchange or a checks, he shall present to the president of the court which has jurisdiction over the case, a request for attachment of his debtor assets. The judge, if he considers that the debt exist authorizes the attachment of the debtor assets.
It is not necessary to send an injunction to the debtor the attachment, for being efficient, shall be a surprise.
The general effect of attachments is to prevent the debtor to sell the assets, he is appointed as the receiver, on behalf of the plaintiff, of the assets which are the guarantee for the debt. The debtor keeps the possession and use of the attached assets but he has to take care of it on his situation as guard. The assets can be placed under a third party custody if the creditor considers that there is a danger that the assets may be damaged or if the debtor refuses to be declared guard of the assets.
2. What is the form of the attachment? Injunction? Other kind of judicial order? Specify.
As specified in Question 1, the form of attachment is a court order. However, article 287 of the Tunisian Civil an Commercial Procedural Code States that the attachment can occur after a judgment is notified to the debtor and before the appeal period (20 days) expires. The Code authorizes the attachment of the debtor assets by virtue of any judgment even if an appeal has been formed, the appeal, generally, suspend the enforcement of the judgement.
In this situation the sale of the assets is suspended until the appeal court issues a final decision.