Introduction: In this section authors from various European countries report the recent case law in their country on the field of private patrimonial law, that is decisions on the law of property, juridical acts, the law of obligations, contract law and prescription. The European Review of Private Law (ERPL) started this section in 2003. The section aims to give our readers an overview of what is happening in the most recent European case law. We have asked the national reporters to report the juridical essence of the decisions given by the highest courts in their country. These national reports are integrated in one general report that arranges the decisions by subject, so that our readers can easily find out whether decisions on their special interest were given in any European country or whether decisions on one subject have been taken in various European countries. In principle, this section does not relate the facts of the decision, nor the personal opinion of the reporter. One can find discussions on the most important decisions of European courts in ERPL’s case note section. The recent case law section gives overviews of decisions published in periods of four months. The period of January-April is published in the fourth issue, the period from May to August is published in the sixth issue, and the period from September to December is published in the second issue of the next year. In this issue, we publish decisions of high courts taken from September to December 2003. As yet, some decisions can only be found on the internet. Therefore, at the end of this section we have listed web sites where one can find European high court decisions. The Board of Editors of the ERPL wants to thank the national contributors to this report, who worked very hard to have their reports ready in time. Further, the Board considers itself very fortunate that Mr. Ross MacDonald (University of Dundee, Scotland) has been willing to edit the contributions and, by doing so, contribute substantially to the quality of this section.
Reporters Austria: Martin Stefula Belgium: Vincent Sagaert Denmark: Kim Østergaard, Christina Tvarnø, Andreas Tamasauskas England: Walter Cairns France: Bénédicte Fauvarque-Cosson, Valérie Pironon Germany: Matthias Hünert Greece: Eugenia Dacoronia Ireland: Máire Ní Shuilleabháin Italy: Raffaele Caterina Netherlands: Bert van Schaick Portugal: Paulo Mota Pinto Scotland: Hector MacQueen Spain: Miquel Martín-Casals, Jordi Ribot Igualada, Albert Ruda González Switzerland: Anne-Catherine Hahn
The present Chronique examines the law on enforcement of judgments in ten European jurisdictions. (The term 'enforcement' rather than 'execution' is used because of the relatively narrow meaning of execution of a judgment within English law.) In the last seven years a number of the jurisdictions under consideration have made more or less extensive revisions of their laws on enforcement of judgments. Most notable is the complete overhaul of the law in France contained in L. 91-650 and D. 92-755. Less complete, but still substantial, revisions have been made in Portugal (Decree law 329-A/95 of 12 December 1995 as modified by Decree law 180/96 of 25 December 1996) and Austria (Exekutionsordnungs Novellen 1991 and 1995). Changes have also been introduced in all of the other laws under consideration. Areas which have attracted reform in several jurisdictions include in particular the specification of the property of the debtor which remains immune from execution, and the obtaining of information from the debtor as to his assets. Clearly the Chronique cannot hope to provide an exhaustive comparison, but it attempts to highlight key similarities and differences in approach that are adopted within Europe. Before looking at the methods of execution themselves, the Chronique deals with a number of preliminary issues. An introductory section sets out the various kinds of obligation that may be recognised in a judgment and provides a brief overview of the different methods of execution that may be employed for each type of obligation. The Chronique then goes on to consider the formal requirements that may need to be satisfied before enforcement of a judgment can take place. It is noted at this point that a judgment is just one form of enforceable title. Other titles are also enforceable under the laws of all states considered, although considerable variations exist as to the types of title that are recognised. The varying approaches of the legal systems under consideration as to provisional enforcement are also considered in this section. If an enforceable title exists, further formal requirements that may have to be satisfied before execution of the judgment can take place include proof of enforceability and service of the judgment. A further preliminary issue is the variety of personnel that may be involved in the enforcement process. Considerable differences between systems exist both as to the allocation of tasks between courts, lawyers and bailiffs, and as to the regulation and training of bailiffs. An important section is devoted to the question of effectiveness of the creditor's title. This involves consideration of the mechanisms available to assist the creditor to find out information about the debtor's assets; the extent to which evasive action on the part of the debtor, by effecting dispositions of property, may be counteracted; the immunities and exemptions recognised by the law of each jurisdiction; and the extent to which measures exist to deal with debtors who have acquired an unmanageable burden of debt. On each issue considerable diversity of approach can be identified, although in relation to assets immune from seizure there is a strong core of shared values. The Chronique then moves on to look at the methods of execution themselves. This part of the Chronique is divided into three sections. It looks first at enforcement of money obligations, through the seizure of movable property, garnishment and seizure of immovable property. It then deals with obligations to perform a certain act or abstain from certain conduct, which are dealt with by mechanisms such as substitute performance, fines, sequestration and imprisonment. The final section concerns obligations to deliver property, which are mainly enforced via seizure of the property and fines. Particular attention is drawn to the differences between legal systems as to the circumstances under which enforcement agents may gain access to the premises of the debtor, the degree of intrusion that may be imposed on third parties, the legal effects of
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