By Mr. Marwan El Hawary
Attachment is one of the most important means of compulsory enforcement under Egyptian law, as it places property under a legal restriction that prevents the debtor from disposing of it in a manner prejudicial to the creditor’s right, pending satisfaction of that right in accordance with the procedures prescribed by law.
Nevertheless, the expressions «action to lift an attachment» and «action for invalidity of attachment» are commonly used in legal practice as though they were two entirely distinct actions: the first assumes that the attachment was valid and seeks its termination because of a subsequent event, while the second seeks to nullify the attachment because of a defect affecting it from its inception. Although this distinction may be useful in describing certain situations, it does not accurately reflect the position under the Civil and Commercial Procedures Law and the jurisprudence of the Court of Cassation.
More precisely, invalidity of attachment describes the legal defect affecting the procedure and the sanction resulting from it, while an action to lift the attachment – in garnishment proceedings – constitutes a substantive remedy through which the judgment debtor may seek release from the attachment and its effects, even where the ground for lifting it is the invalidity of the attachment itself.
First: The Enforcement Judge Has General Jurisdiction over Enforcement Disputes
Article 275 of the Civil and Commercial Procedures Law provides that the Enforcement Judge shall have exclusive jurisdiction to determine all substantive and interim enforcement disputes, regardless of their value, and shall determine interim disputes in the capacity of a judge of urgent matters.
The Court of Cassation has consistently held that a dispute constitutes an enforcement dispute where it concerns an enforcement measure or where the judgment rendered in it would affect the progress or procedures of enforcement.
Accordingly, where an action is brought seeking invalidity of an existing attachment, non-recognition thereof, or its lifting, and the determination of the action directly affects the enforcement proceedings, it constitutes – depending on its claims and legal basis – an enforcement dispute falling within the subject-matter jurisdiction of the Enforcement Judge, unless a special provision provides otherwise.
Second: What Is Meant by Invalidity of Attachment?
Invalidity of attachment is the sanction resulting from violation of the rules that the law requires to be observed in an attachment procedure, whether the law expressly provides for invalidity or the defect prevents achievement of the purpose of the procedure under the general rules.
Article 20 of the Civil and Commercial Procedures Law provides that a procedural act is invalid if the law expressly provides for its invalidity, or if it is affected by a defect that prevents the purpose of the procedure from being achieved. Invalidity shall not be ordered despite an express provision where it is established that the purpose of the procedure has been achieved, within the limits in which this general rule applies and where no special provision prescribes a different sanction.
Accordingly, the basis of a dispute concerning attachment may be a defect in the attachment instrument, service, the instrument upon which enforcement is based, the attachability of the property, or compliance with the conditions required by law for imposing the attachment.
Third: Not Every Violation Is Sanctioned by «Invalidity»
A distinction must be drawn between invalidity and another sanction frequently appearing in attachment provisions, namely treating the attachment as «null and void as if it had never existed».
The law may prescribe a time limit within which a particular measure must be taken and provide that failure to comply results in the attachment being treated as if it had never existed. In such case, the sanction derives directly from the special provision and is not merely an application of the general theory of procedural invalidity.
An example is Article 332 of the Civil and Commercial Procedures Law, which requires garnishment to be notified to the judgment debtor within the eight days following service of the attachment on the garnishee, failing which the attachment shall be deemed as if it had never existed.
Likewise, Article 333 provides, in cases where the attachment is ordered by the Enforcement Judge, that an action to establish the right and validate the attachment must be brought within the time limit prescribed by law, failing which the attachment shall be deemed as if it had never existed.
In precautionary attachment of movables, Article 320 provides similar rules concerning service of the attachment report and bringing an action to establish the right and validate the attachment in cases where the law requires such action.
Fourth: The Court of Cassation’s Position on Missing the Time Limit for an Action to Validate the Attachment
The Court of Cassation has confirmed that a precautionary attachment ordered by a judge shall be deemed as if it had never existed where an action to establish the right and validate the attachment is not brought within the time limit prescribed by law.
In Appeal No. 493 of Judicial Year 49 – session of 28 February 1984 – the Court held that failure to bring an action to establish the right and validate the attachment within the eight-day period results in the attachment being deemed as if it had never existed, without this in itself extinguishing the substantive action concerning the underlying right where that action was validly and independently brought apart from the attachment.
This is an important distinction between the fate of the attachment as a precautionary measure and the existence of the substantive right asserted by the creditor.
Fifth: Invalidity of the Statement of Claim in the Action to Validate the Attachment and Its Effect
The Court of Cassation reached a more precise conclusion in Appeal No. 2485 of Judicial Year 56 – session of 11 July 1991.
If an action to validate the attachment is brought within the prescribed time limit, but the statement of claim initiating it is declared invalid in a manner that results in the extinction of the proceedings and the procedural acts arising from them, the filing of the action no longer remains capable of producing its effect in preserving the attachment, and the attachment consequently lapses, is deemed as if it had never existed, and the effects arising from it are extinguished.
Accordingly, taking the measure within the prescribed time limit is not sufficient merely from a temporal perspective; the legal measure preserving the attachment must have been validly completed and capable of producing its effects.
Sixth: What Is the Action to Lift an Attachment under Article 335?
Article 335 of the Civil and Commercial Procedures Law, within the provisions governing garnishment, provides that the judgment debtor may bring an action seeking the lifting of the attachment before the Enforcement Judge having jurisdiction over them.
The bringing of such action may not be invoked against the garnishee unless it is notified to the garnishee, and such notification prevents the garnishee from making payment to the attaching creditor until the action is determined.
It is therefore a substantive enforcement dispute aimed at obtaining a judgment conclusively determining the fate of the attachment, rather than merely an interim request to stay enforcement.
Seventh: Is an Action to Lift an Attachment Limited to Grounds Arising After the Attachment?
No. This is the most important point in distinguishing between the two concepts.
The Court of Cassation has defined an action to lift an attachment as an action brought by the judgment debtor against the attaching creditor, objecting to the attachment and seeking its cancellation for any ground rendering it invalid, whether substantive or procedural, with the aim of being released from the attachment and its effects.
The Court so held in Appeal No. 250 of Judicial Year 43 – session of 5 April 1977, in a dispute concerning garnishment imposed through administrative attachment.
Accordingly, an action to lift an attachment cannot properly be confined to the single situation in which «the attachment was valid and a subsequent event later removed its justification». The action may be based on an original defect invalidating the attachment, non-existence of the debt, or a subsequent event extinguishing the right to maintain the attachment.
Eighth: What, Then, Is the Difference Between Invalidity of Attachment and Lifting of Attachment?
The more precise distinction is not between two entirely separate actions, but between the ground of the dispute and the judicial relief or result sought.
- Invalidity of attachment: Concerns a defect in the procedure or one of the conditions for its validity, and the relief sought is a declaration that it is invalid and that its effects cease.
- Attachment deemed as if it had never existed: A special sanction prescribed by law in specified cases, generally where a required measure is not taken within a prescribed time limit.
- Lifting of attachment: The relief sought to be released from an existing attachment, which may be based on its invalidity, the non-existence of the right secured by the attachment, extinguishment of the debt, or any other ground rendering continuation of the attachment impermissible.
Accordingly, proof of invalidity may result in lifting the attachment, and the action to lift the attachment itself may be founded on its invalidity.
Ninth: Grounds That May Support a Request to Lift an Attachment
The applicable ground depends on the type of attachment and the circumstances, with principal examples including:
- Invalidity of an attachment procedure: Where a provision prescribing invalidity has been violated or the purpose of the procedure has not been achieved under the applicable rules.
- Attachment deemed as if it had never existed: Due to failure to comply with a time limit for which the law prescribes this sanction.
- Non-existence of the debt or discharge of the judgment debtor: Where it is established that the right secured by the attachment does not exist.
- Extinguishment of the debt after attachment: Through payment, release, set-off, or other grounds of extinguishment where their conditions are satisfied.
- Loss of the instrument or its enforceability: Where enforcement is based on an instrument whose legal effect has ceased in a manner affecting continuation of the attachment.
- Property not subject to attachment: Where the property is among those exempted by law from compulsory enforcement.
- The debtor does not own the property subject to enforcement: Subject to the appropriate legal remedy and the standing of the person asserting the right over the property.
Tenth: Requirements of the Debt in Garnishment
Article 325 of the Civil and Commercial Procedures Law permits a creditor to garnish debts owed to their debtor by a third party where the attaching creditor’s claim is certain in existence and due for payment.
However, it is not correct to state that the debt owed by the garnishee must itself be due and unconditional; the provision permits attachment of debts owed to the debtor by third parties even if they are deferred or subject to a condition.
Accordingly, a distinction must be drawn between the attaching creditor’s claim against the judgment debtor, which justifies imposing the attachment, and the judgment debtor’s claim against the garnishee, which constitutes the property subject to attachment.
Eleventh: Executory Attachment and the Enforcement Instrument
Direct compulsory enforcement requires an enforcement instrument satisfying the conditions for enforcement, but the rules governing precautionary attachment are different; in certain cases, the legislator permits precautionary attachment to be ordered by the Enforcement Judge before the creditor obtains an enforcement instrument, provided that the statutory conditions are satisfied.
Accordingly, «absence of an enforcement instrument» cannot be treated as a general ground for invalidity of every attachment. The attachment may be precautionary and validly authorized by the judge pursuant to Articles 319 or 327, depending on the type of attachment.
Twelfth: Depositing and Allocating an Amount in Substitution for the Attached Property
The legislator has provided a means of releasing attached property without prejudicing the creditor’s security. Pursuant to Article 302, before the sale takes place, an amount of money equal to the debts for which the attachment was imposed, together with interest and expenses, may be deposited and allocated for their payment.
The deposit results in release of the property previously subject to attachment and transfer of the attachment to the deposited amount.
Article 303 also permits the judgment debtor to apply urgently to the Enforcement Judge to determine an amount to be deposited with the court treasury for payment to the attaching creditor, and such deposit produces the same effect.
Here, the issue is not invalidity of the attachment; the attachment is valid, but its subject matter is transferred from the original property to the allocated amount.
Thirteenth: Limiting the Attachment Where It Is Disproportionate
The debt may be valid and the attachment itself valid, while the value of the attached property is nevertheless disproportionate to the amount of the debt.
In such case, Article 304 permits the debtor to apply urgently to the Enforcement Judge to limit the attachment to part of the attached property.
This remedy differs from invalidity and total lifting; it addresses the extent of the attachment rather than its underlying legality.
Fourteenth: Invalidity of Precautionary Attachment and Its Cancellation for Lack of Basis
The Civil and Commercial Procedures Law itself confirms that invalidity and absence of legal basis are not always the same concept. Article 324 provides, in relation to precautionary attachment, for the case where a judgment is rendered declaring the attachment invalid or cancelling it for lack of legal basis, and permits the attaching creditor to be ordered to pay the fine prescribed by the provision in addition to compensation to the judgment debtor.
This wording demonstrates that an attachment may cease because of a procedural defect, or because the substantive basis upon which it was imposed does not exist.
Fifteenth: Action to Lift an Attachment and Administrative Attachment
Article 75 of Administrative Attachment Law No. 308 of 1955 provides that the provisions of the Civil and Commercial Procedures Law shall apply to matters not regulated by the Administrative Attachment Law, insofar as they do not conflict with its provisions.
The Court of Cassation applied this rule in Appeal No. 250 of Judicial Year 43 – session of 5 April 1977 – and held that, since the Administrative Attachment Law did not regulate the action to lift the attachment in the form at issue, reference should be made to Article 335 of the Civil and Commercial Procedures Law.
The Court also confirmed that an action seeking to lift an administrative attachment on the ground that the debt for which it was imposed is not due constitutes a substantive enforcement dispute falling within the jurisdiction of the Enforcement Judge.
Nevertheless, when applying the Administrative Attachment Law, regard must be had to constitutional judgments invalidating certain situations in which the law had granted particular entities authority to impose administrative attachment. It is therefore insufficient to refer only to the original text of the law without reviewing subsequent constitutional judgments affecting it.
Sixteenth: Action to Lift an Attachment and Interim Enforcement Objections
A distinction must be drawn between a substantive enforcement dispute and an interim enforcement objection.
An action to lift an attachment aimed at conclusively resolving the dispute over whether the attachment should remain in force constitutes a substantive enforcement dispute, in which the Enforcement Judge exercises the powers of a court of merits.
An interim enforcement objection, however, seeks a temporary measure, such as staying or continuing enforcement, without determining the underlying right. When deciding such an objection, the Enforcement Judge is limited to the apparent position disclosed by the documents to the extent necessary to determine the urgent request.
The Court of Cassation has held that a substantive dispute is one in which a judgment is sought conclusively resolving the dispute concerning the underlying right forming the subject matter of enforcement, whereas an interim dispute seeks a temporary measure that does not affect the underlying right.
Seventeenth: Does the First Enforcement Objection Stay Enforcement?
Article 312 of the Civil and Commercial Procedures Law regulates the effect of interim enforcement objections.
Where an objection is raised during enforcement and an interim measure is sought, enforcement may not be completed before the Enforcement Judge renders a decision in the situation regulated by the provision, while certain measures may nevertheless proceed on a precautionary basis.
The legislator also provides that subsequent objections do not, merely by being filed, stay enforcement unless the Enforcement Judge orders a stay, subject to the specific exception relating to the first objection brought by the party obligated under the enforcement instrument where that party was not joined in the previous objection, in accordance with the conditions of the Article.
Accordingly, the rule cannot properly be reduced to the statement that «any first objection automatically stays enforcement» without regard to the details of Article 312, the capacity of the objecting party, and prior objections in the same enforcement proceedings.
Eighteenth: Does an Action to Lift an Attachment Suspend the Attachment Merely by Being Filed?
An action to lift an attachment is not, in itself, an interim enforcement objection that stays enforcement proceedings under Article 312.
However, Article 335 establishes a special effect in garnishment proceedings: the action may not be invoked against the garnishee unless it is notified to the garnishee, and such notification prevents the garnishee from making payment to the attaching creditor until the action is determined.
This effect does not mean that the attachment ceases to exist or that the judgment debtor’s claim is deemed valid in advance; rather, it preserves the funds in the hands of the garnishee until the court determines the dispute.
Nineteenth: Key Court of Cassation Applications
Appeal No. 250 of Judicial Year 43 – session of 5 April 1977
The Court of Cassation held that an action to lift an attachment is the action brought by the judgment debtor seeking cancellation of the attachment for any ground rendering it invalid, whether substantive or procedural, and that it constitutes a substantive enforcement dispute falling within the jurisdiction of the Enforcement Judge. The Court also applied Article 335 to administrative attachment through the referral contained in Article 75 of the Administrative Attachment Law.
Appeal No. 493 of Judicial Year 49 – session of 28 February 1984
The Court confirmed that failure to bring an action to establish the right and validate the precautionary attachment within the legally prescribed time limit results in the attachment being deemed as if it had never existed, while the substantive action concerning the underlying right remains pending where it was validly and independently brought apart from the attachment.
Appeal No. 2485 of Judicial Year 56 – session of 11 July 1991
The Court of Cassation held that invalidity of the statement of claim in the action to validate the attachment extinguishes the procedures arising from it and, where no valid action was brought within the prescribed time limit, results in the attachment lapsing, being deemed as if it had never existed, and its effects being extinguished.
Appeal No. 1368 of Judicial Year 60 – session of 5 January 1995
The Court confirmed that a dispute does not constitute an enforcement dispute merely because it is connected to a judgment or debt; rather, it must concern an enforcement measure or affect the progress and procedures of enforcement. It also distinguished between the Enforcement Judge’s authority in interim disputes and substantive disputes.
Appeal No. 10949 of Judicial Year 78 – session of 20 April 2016
The Court of Cassation reaffirmed that the Enforcement Judge has general jurisdiction over enforcement disputes, whether substantive or interim, and whether or not the law expressly provides for such jurisdiction or designates another authority, unless a special exception applies.
Twentieth: Practical Distinction Between the Principal Forms of Dispute
- The attachment was imposed by an instrument omitting information that the law requires and for which omission invalidity is prescribed: The basis is invalidity of the attachment.
- Garnishment was not notified to the judgment debtor within the time limit prescribed by Article 332: The sanction is that the attachment is deemed as if it had never existed.
- The action to validate the attachment was not brought within the required time limit: The special sanction that the attachment be deemed as if it had never existed should be sought.
- It is established that the debt never existed: The judgment debtor may seek lifting of the attachment on the basis that the foundation of enforcement does not exist.
- The debt was paid after the attachment was imposed: Lifting of the attachment may be sought because the right justifying its continuation has been extinguished.
- The attachment is valid but the attached property clearly exceeds the debt in value: The appropriate remedy may be limitation of the attachment under Article 304 rather than seeking invalidity of the attachment in its entirety.
- The debtor wishes to release the property immediately while preserving security for the creditor: Deposit and allocation under Articles 302 and 303 may be considered.
- Only a temporary stay of enforcement is sought: The dispute is interim and subject to the rules governing enforcement objections, rather than the substantive action to lift the attachment.
Conclusion
The distinction between «lifting an attachment» and «invalidity of attachment» is more nuanced than the traditional classification that treats each as having a completely separate scope.
Invalidity concerns a defect affecting the attachment or one of its procedures, whereas lifting the attachment is the judicial result sought by the judgment debtor in order to be released from the attachment, and that request may be based on invalidity itself, substantive grounds, or grounds arising after the attachment was imposed.
A further distinction must also be drawn from the sanction of an attachment being «deemed as if it had never existed», which is a special sanction prescribed by law in specified cases, as well as from limitation of attachment, deposit and allocation, and interim enforcement objections, each of which has a different function, procedure, and legal effect.
Proper legal characterization does not begin with the title given to the action by a party in the statement of claim, but with the true nature of the relief sought, the ground of the dispute, the type of attachment, and the effect sought to be produced on the enforcement proceedings. This is the approach consistent with the provisions of the Civil and Commercial Procedures Law and the principles established by the Court of Cassation.