The Third-Party Debtor in Attachment of Debts under OHADA Law
(Organization for the Harmonization of Business Law in Africa)
By Me Romy MEVOUNGOU ZAMBO
INTRODUCTION
Attachment of debts (commonly called third-party attachment) is one of the most effective enforcement measures available to a creditor holding an enforceable title for the recovery of a due and certain debt. It enables the creditor to seize the sums owed by a third party to their debtor in order to obtain payment.
The third party, referred to as the third-party debtor or garnishee, may be any natural or legal person holding or owing money to the debtor. In OHADA practice, this is most often a financial institution in whose books an account has been opened in the debtor’s name.
It may also be an employer owing wages. In this regard, OHADA law differs from French law, which excludes wage attachment from the scope of third-party attachment.
More generally, the third-party debtor may be any person indebted to the principal debtor against whom the creditor proceeds, such as a landlord owing sums to a tenant who is himself indebted to the attaching creditor.
The broad scope and procedural speed of attachment make it a widely used and appreciated mechanism among creditors—though it is often feared by debtors and third-party debtors alike.
The success of the procedure largely depends on the cooperation of the third-party debtor. Once served with an attachment order, this party is required to provide information and supporting documents about the sums or debts held, through what is known as the third-party declaration.
This declaration is crucial, as it confirms the existence and content of the debt subject to attachment.
Any failure to comply is severely sanctioned under Article 156 of the Uniform Act Organizing Simplified Recovery Procedures and Enforcement Measures (AUPSRVE), which provides that:
“Any inaccurate, incomplete or late declaration exposes the third party to being ordered to pay the costs of the seizure, without prejudice to an order to pay damages.”
Timeliness is essential. Under the previous version of Article 156, in force until 2023, the third-party debtor had to act immediately:
“These statements and communications must be made immediately to the bailiff or enforcement officer and mentioned in the seizure document or, at the latest, within five days if the document is not served on the person concerned.”
This requirement of immediacy was particularly onerous since the third party is, in principle, a stranger to the debtor–creditor relationship and derives no benefit from it.
The 2023 reform of the AUPSRVE slightly relaxed this regime.
The new Article 156 now provides:
“These declarations must be made within two days to the bailiff or the authority responsible for enforcement and mentioned in the seizure order or, at the latest, within five days if the order is not served on the person concerned.”
Previously, the immediacy requirement aimed to prevent fraud and collusion between debtor and third-party debtor. The reform raises questions about its impact on transaction security within the 17 OHADA member states, from Central and West Africa to the Comoros.
Nonetheless, the new time limits—two days or five days at the latest—remain short and maintain the spirit of procedural efficiency.
The reform therefore corrects the rigidity of the former immediacy rule (I) without undermining the effectiveness of the attachment procedure or the core obligations of the third-party debtor (II).
I – A Justified Relaxation of the Rules Governing Third-Party Attachment
The issue of attachment of debts owed by third parties is not new.
Historically, the earlier garnishment procedure often paralysed enforcement because third parties either remained silent or responded very late—sometimes colluding with debtors to conceal funds.
To prevent these abuses, the AUPSRVE abolished the old garnishment procedure and imposed immediacy in third-party declarations. The threat of sanction was intended to guarantee efficiency.
However, this strict requirement soon revealed its limitations, prompting the legislator to readjust the time frames.
- Organizational Constraints
The primary obstacle was practical. Financial institutions—the most frequent third-party debtors—must conduct internal checks and consult several departments before confirming account balances or debts. In complex or partially computerized systems, an immediate response was unrealistic.
In many OHADA countries, technical resources remain limited. The absence of real-time data systems delayed the transmission of information about debtors’ assets.
- Legal and Procedural Uncertainty
The concept of “immediacy” was never clearly defined, leaving room for varied interpretation. The Uniform Act also lacked precise rules on how the declaration should be transmitted (electronically, by mail, or through the bailiff), creating uncertainty over when it is deemed received.
Additionally, identifying all accounts of a debtor across different branches or institutions is still challenging in the absence of interconnected banking networks.
- Economic and Human Factors
Rapid compliance can be costly for smaller institutions, requiring investment in digital systems and trained staff. Many third-party debtors are also unfamiliar with the AUPSRVE’s requirements or unaware of the penalties incurred for non-compliance.
The absence of effective coordination between courts, bailiffs, and banks further slowed processing times.
- Rationale for the Reform
In light of these realities, the extension of the declaration deadline seeks to enhance both procedural fairness and practical effectiveness.
By granting a short but reasonable period—two days or, in certain cases, five days—the reform reconciles procedural speed with legal certainty. It protects the rights of the third-party debtor while maintaining the overall efficiency of enforcement.
The amendment also clarifies communication procedures, introducing more flexibility in how information is transmitted and how third-party obligations are fulfilled.
Ultimately, this adjustment reflects a balanced approach between rapid execution and the protection of procedural guarantees.
II – Preserving the Legal and Economic Effectiveness of Attachment
Despite this relaxation, the reform maintains firm control over third-party debtors, who are drawn into the enforcement process—often involuntarily—once an attachment order is served.
Several mechanisms continue to safeguard the legal and economic effectiveness of attachment:
- the legal subrogation of the attaching creditor to the debtor’s rights against the third-party debtor;
- the immediate attribution of the attached sums to the creditor by virtue of the attachment order itself; and
- the personal liability of the third-party debtor in case of false or late declaration.
- Legal Subrogation of the Creditor
Article 154 AUPSRVE provides:
“The writ of attachment entails, up to the amount for which it is executed and all its accessories, immediate assignment to the attaching party of the attached claim, available in the hands of the third party. The sums seized are rendered unavailable by the seizure order. This order makes the third party personally liable for the causes of the seizure within the limits of its obligation.”
Thus, from the moment the attachment order is served, the creditor is legally subrogated to the debtor’s rights against the third-party debtor. The third party must then pay directly to the attaching creditor, up to the amount owed to the principal debtor.
This subrogation arises automatically from the order; it is a legal attribution effect, not a contractual one, and is unaffected by the length of the declaration period.
- Immediate Attribution of the Sums Attached
Under OHADA enforcement law, the sums attached are deemed attributed to the attaching creditor as soon as the seizure order is executed. The effectiveness of this attribution does not depend on the declaration made by the third-party debtor.
The declaration serves merely to confirm the existence and amount of the attached claim; it is a procedural formality rather than a condition of validity.
This mechanism ensures that the creditor’s rights arise immediately upon attachment, independent of administrative delays. It thereby preserves the speed and certainty of enforcement.
- Liability of the Third-Party Debtor
Article 162 AUPSRVE provides that any third-party debtor who fails to make the required declaration within the prescribed time limit, or who knowingly makes a false declaration, is personally liable to the attaching creditor as if they were a debtor, within the limits of the sums attached.
In addition, Article 156 sanctions any inaccurate, incomplete, or late declaration by ordering the third party to bear the costs of the attachment and, where applicable, damages for negligent or wrongful conduct.
The degree of liability depends on the circumstances and the causal link between the third party’s fault and the creditor’s loss.
These provisions preserve the deterrent function of the law and ensure that third-party debtors act diligently and in good faith.
CONCLUSION
The revision of the declaration deadlines under Article 156 AUPSRVE reflects a pragmatic adaptation of enforcement law to the realities faced by financial institutions and other third-party debtors.
By easing excessive time constraints while maintaining strict duties of diligence and good faith, the OHADA legislator has reinforced both legal certainty and practical cooperation among actors in the enforcement process.
This evolution reduces the risk of disputes arising from unrealistic procedural requirements, while promoting more accurate and reliable declarations.
However, its effectiveness will ultimately depend on the ability of stakeholders—banks, bailiffs, and magistrates—to implement sound internal procedures, provide staff training, and foster a stronger operational understanding of OHADA enforcement law.
Beyond extending deadlines, sustained efforts in legal education, digital interconnection, and procedural awareness are essential to ensure that third-party declarations are timely, accurate, and effective across the OHADA area.
Me Romy MEVOUNGOU ZAMBO
Doctor of Law (Paris I Panthéon-Sorbonne)
Attorney at the Paris Bar – CABINET PÉRONO CONSEILS
Practice areas: Business Law • Immigration Law • Labour Law
Commentaire (1)
Nicely done.