Occasionally, although rarely, it may occur that the execution of a judicial sentence becomes impossible. I.E. the prevailing party cannot obtain what was requested and achieved by sentence. Does it mean that the prevailing party is defenseless and the losing party is exempted because of the impossibility to comply? The truth is that no, it is not.
The Constitutional Court (TC) settled that the impossibility of complying with a ruling does not entail the impossibility of an alternative enforcement. (Ruling 153/1992). This case law applies to condemnatory sentences. This implies that, in such a case, an alternative execution must apply in favor of the winner party.
Our legal system does not include a case list impossible execution or the exact measures of substitution . Regardless of that, there are precepts that can be applied by analogy and approved by the judge.Contacto No te quedes con la duda, contacta con nosotros. Estaremos encantados de atenderte y ofrecerte soluciones.
Alternatives to execution when execution becomes impossible
There are a number of provisions in our LEC that cover non-monetary enforcement, specifically Articles 699 to 720. (LEC, Civil Procedure Act). Those provisions apply not only in civil proceedings but also, subsidiarity, in other jurisdictions.
(i) Personal injury and imposition of periodic penalty payments
Article 699 of the LEC:
“When the enforcement order contains a sentence or an obligation to do or not to do or to deliver something other than an amount of money, the order for enforcement shall require the executed person to comply with the provisions of the enforcement order on his own terms within the period of time that the court deems appropriate”.
The same article states that the court may warn the executed person by means of a summons or monetary fines.
(ii) Measures when the ruling includes delivering of generic or indeterminate items
In these cases, it is necessary to assume that the materials do not perish and are easily obtained on the market. Only when the assets no longer satisfy the creditor’s interest that the pecuniary equivalent and damages must be determined. This is found in Article 702.2 LEC: “the pecuniary equivalent shall be determined, with the damages that may have been caused to the executor, which shall be liquidated in accordance with Article 712 and following”.
(iii) Alternatives when the sentence is to deliver something movable
The impossibility may arise because the assets location is unknown or because they are not held by the executed party. Article 701(3) provides for cases where the thing cannot be found:
“When, having proceeded in accordance with the preceding paragraphs, the thing cannot be found, the court shall, at the request of the executor, order that the failure to find the thing or things due be replaced by fair financial compensation, to be determined in accordance with Article 712 et seq.”
(iv) Alternatives when the ruling is to surrender real estate property
This is the case when real estate property has been destroyed. Or, when it has been sold by someone, who had no power to sell or deliver the property.
The Provincial Audiences have declared that that, in these cases, the provisions for delivery of movable property cases are applicable. An example of this is in Ruling 15/2011 Feb 4th of the Provincial Court of Las Palmas. In this appeal, the executor seeks to have the enforceable claim admitted as: “a request to adopt the measure consisting of requiring the executed party to either lift said obstacle and then proceed to execute the ruling on its own terms, or, in the event of failure to comply with the said request, to request that the impossibility of execution be declared and to request, where appropriate, that the said sentence being replaced by a pecuniary compensation”.
A) The enforcement of the ruling may identify the decision whose enforcement is claimed.
In the first instance the execution was dismissed considering that the execution was not included in the enforced ruling. The Court considered that the application for “measures to ensure the effectiveness of the ruling” should be rejected. This is because it considered that different claims from the main procedure were included, which is forbidden after the ruling.
However, the Provincial Audience held that refusing measures of guarantee does not imply refusing the enforcement of the ruling. It recalls the content of article 549. LEC:
“Where the enforcement order is a decision of the Registrar or a judgment or order issued by the Court having jurisdiction to hear the application for enforcement, the application for enforcement may be confined to a request that the enforcement be dispatched, identifying the judgment or order for which enforcement is sought”.
Therefore, the execution should have been agreed upon according to article 551 of the LEC.
B) If the executed party does not fulfil its obligation, she will need to compensate.
It is considered that the executed party has the possibility to comply the ruling. Therefore, if she does not comply within a reasonable term, she may be subject to personal punishment and financial penalties.
Therefore, the ruling should have been executed in these terms and not denied as the Court of First Instance did.
(v) Alternatives in cases of ruling to act (or to do not act)
The implementing party may choose:
- to have a third party in charge of the performing or the ruling at the executed’s expense (if possible)
- To be compensated for not doing so if there is not a third party able to do the ruling. (Art 706 LEC).
In the second case, Article 709 LEC provides that it will be the pecuniary equivalent of the performance. Or, the adoption of any measure that is suitable for the satisfaction of the executer.
Finally, when the sentence is of not acting/doing, only the substitution consisting on compensation of damages is possible. (Article 710 LEC)
- The impossibility of complying with the ruling do not imply the impossibility of alternative executive measures.
- Spanish Law does not contemplate a list of cases in which execution may become impossible.
- Articles 699 to 720 LEC include non-monetary execution that can be applied by the court as substitute measures.
- These substitute measures operate for ruling of delivery of generic and indeterminate things. Also, for ruling of delivery of certain movable and immovable property. And finally, for orders to do or not to do something.
- The executive application can be filed simply by identifying the decision to be executed.
- And even if the judgment cannot be executed on its own terms, the judge cannot refuse its execution. It must be served, using the alternative measures contained in Articles 699 to 720 of the LEC.
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