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Garnishee Orders

Garnishee orders can be differentiated between precautionary garnishee orders and executive garnishee orders.

With precautionary garnishee orders one is filing a warrant to seize monies or stop movables from being transferred onto third parties on the basis of a claim which is yet to be estabilshed whether it is founded in law and in fact, hence why it is precautionary. Therefore, one is taking the precaution to seize the amount claimed even though it has not yet been declared in a Court of Law to be due. This is a useful mechanism to stop the debtor from squandering any money before the Court would have declared that the amount claimed is actually owed to the creditor. Like any other procedure, to avoid abuse, the law provides that precautionary warrants, and a precautionary garnishee order is by no means an exception, need to be followed or accompanied by a lawsuit and this to curb abusive behaviour by people who want to inflict financial damage on other people without any unjustified claims.

On the other hand with executive garnishee orders, one would already be in possession of a judgment or an executive title stating that the creditor is due the money claimed which would enable a person to seize the sums due to him/her. The only difference is that if one files a garnishee order after one would have obtained a final judgement or an executive title, there might be a possibility that the debtor would have already squandered the money, which would then lead to further judicial proceedings to try and get what is due to oneself. And hence, that is why a precautionary garnishee order gets in handy, as the sum would have already been seized before final judgement. Having said this, it does not mean that whoever files a precautionary garnishee order would be able to seize the amount claimed as it very much depends on how much money there is in the debtor's bank accounts. If there isn't the whole amount claimed, the bank accounts will remain frozen and any money deposited by the debtor in the said accounts will be automatically seized.

Collecting what is due is a tricky business and one needs to act in a timely manner to avoid not being able to get what is owed to oneself. However, like with anything else, there is always the risk that the debtor would have nothing deposited in his/her bank accounts or would have no movables in his/her name which would make debt collection very difficult.

Article written by Dr Ann Marie Mangion.

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