Provisionally enforceability

When the judge makes his final judgment, the party for whom the decision is not (entirely) in his favor can make an appeal.

The theoretical main rule: a verdict cannot be executed immediately.

The main rule is that a final judgment cannot be executed immediately. The legislature has established by law that an appeal (for instance a higher appeal, objection or cassation) suspends the execution of the judgment.

The exception: Provisionally enforceability

The main rule of an appeal suspending the execution of a judgment, knows an important exception. Pursuant to the law (article 233 Rv) the claimant can demand that the judgment, to be made by the judge, will be directly executable, without a possible appeal suspending the execution. In juristic Dutch the judge will be asked to declare his judgment provisionally enforceable.

Provisionally enforceability needs to be demanded/requested

The judge is in principle officially (out of his own, without being asked for it) not allowed to declare his judgment provisionally enforceable. The one that has made the claim, needs to claim actively for the judgment to be declared provisionally enforceable.

No defense = allocation

When the claiming party has demanded for the final judgment to be provisionally enforceable and the defending party makes no defense against this, the judge will sustain this demand in principle, unless this claim seems unlawful or unfounded.

When the defendant does state defense against the claimed provisionally enforceable-statement, the judge will way the interests of both parties against each other.

The interest of the claiming party with provisionally enforceable

In general procedures take a lot of time. A procedure in which is being appealed, can easily take six months or even longer. When a consecutive higher appeal is filed, the whole procedure can take more than a year (but sometimes even two or three years).

When an appeal would always suspend the execution of the judgment from the judge, this (could) result in taking a longer time (sometimes multiple years) before the claiming party could claim the claim to which he is entitled. To creditors whose claim has been appointed in first instance, this will be extremely frustrating. Not only do they not receive that which they apparently are entitled to, but above all they are at risk that the possibility of recovery of the creditor will decline (even further) in the following period.

In practice provisionally enforceability is the main rule

Because the judge thinks the claim apparently is justified (otherwise he wouldn’t have sustained it) and in view of the aforementioned debtors risk, the judge will in general declare his judgment provisionally enforceable, when he is asked to do so.

It is even difficult as such to successfully appeal against this claim, that most of the time this isn’t even tried. An appeal against the claim to declare the judgment provisionally enforceable will sometimes work, especially in legal complex situations or in situations in which serious problems could develop.

Whereas in the vast majority of the procedures the judge is being asked to declare the judgment provisionally enforceable, and the judges almost always award this claim, is it so that the exception to the rule (provisionally enforceability) is more common than the main rule it self (to know that an appeal suspends the execution).

Advance costs of experts can officially be declared provisionally enforceable

The law knows an important exception to the main rule that a judge cannot officially declare his judgment provisionally enforceable. This concerns

the situation in which the judge calls an expert and he determines that the claiming party must pay an advance to the costs of this expert. In this case the judge is allowed to declare this decision officially provisionally enforceable.

The background of this exception is probably that the claiming party will never ask for the provisionally enforceability of this decision, because he doesn’t have an interest in this (after all this leads to an amount he needs to pay). The interest tot his advance lies with the expert after all, who likes to be certain beforehand about the payment of (a part of) his work. Because this expert isn’t a party in the procedure isn’t he able to claim this personally. Therefore contains this exception a legal way to protect the expert against not being paid for his work.

2 claimers means 2 claims for provisionally enforceability in 1 procedure

To prevent misunderstandings; when both parties in a procedure have filed a claim against each other, both parties need to request the judge to declare the judgment, which should be in their favour, provisionally enforceable.

When one party has claimed for the judgment to be declared provisionally enforceable, and the other party hasn’t, there is a real opportunity that the first party can execute his granted claim immediately after the judgment is given, while the other party needs to wait till the exact same judgment is irrevocable to claim the claim in their favour.

Provisionally enforceability isn’t always possible

The law or the nature of the case can have as consequence that the judge can’t declare (part of) his judgment provisionally enforceable.

The law

The letter of the law is opposing explicitly against the possibility of the judge being able to declare his judgment provisionally enforceable on some places. This is, for example, the case in article 7:272 BW, in which the legislator has indicated that the termination of a rental agreement (concerning living space) by the lessor has first effect after the judgment thereon has become irrevocable.

The nature of the case

There is no limitative list of situations in which the nature of the case opposes a provisionally enforceable declaration. This depends on all circumstances of the case. An often-mentioned example concerns the situation in which the judge draws final conclusions in an interim order. These final conclusions can’t mostly be executed till the final judgment.

Security

The judge can connect to the provisionally enforceable declaration the condition that for some amount, determined by him, security needs to be made. Often will this mean that the creditor needs to deposit a certain amount to a specific account (usually of a lawyer, notary or a bailiff), or that he needs to provide a bank guarantee.

With this condition the debtor’s risk of the debtor is being reduced, in case he in higher appeal or objection is upheld (and therefore entitled to refunding of the amount to which he was condemned in first instance).

The defendant will for that matter always request the judge to put conditions to the provisionally enforceable declaration. When the defendant doesn’t request this, the judge will not determine this officially.

Even then provisionally enforceable: interimaction or preliminary relief proceeding

When the claimant hasn’t claimed a provisionally enforceable declaration in first instance, he can get an interest to this at the moment the defendant objects or appeals. In that case the claiming party can claim in the new (objection- of appeal-) procedure that the previous judgment of the (last) judge will be declared provisionally enforceable as well. That claim needs to be established with the judge of the objection of appeal.

As an alternative can the claiming party claim in a preliminary relief proceeding that the concerned judgment is declared provisionally enforceable. Given the present judgment, in which the judge declared that the claiming party is entitled to a performance, shall urgency in general being accepted. In particular will it then be a balance of both the interests of the claimant vs. the defendant.

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