How does enforceability work?

The office of the Affordable Lawyer was contacted by Mr Jakub, who won CZK 200,000 in a court case with his friend. However, he knew that his friend had no money at the moment and did not intend to pay the debt, so he asked when and how it would be possible to start recovering it.

There are two key concepts in Mr Jakub’s case. The first is the legal force of a judgment, which generally means that the effects of a decision can take effect and that the decision cannot be reversed. This occurs if the time limit for appeal expires in vain or if the parties waive the possibility of appealing against the judgment. It may also be the case that certain decisions cannot be appealed and are therefore immediately final.

It is necessary to distinguish the so-called enforceability of a judicial (or administrative) decision from its legal force, which means that it is possible to enforce its execution even against the will of the person on whom it was imposed. This means that if the debtor has to pay the debt and is given 3 days from the legal force of the decision to pay it, then after the expiry of these days, the enforceability of the decision occurs and it is possible to enforce it by legal means. Enforceability was therefore the concept that was crucial for Mr Jakub to be able to start enforcing his claim, for example through a bailiff.

The time limit for enforceability is typically three days, but can be as short as 15 days, for example in the case of property clearance. However, some judgments do not have a time limit for execution and are therefore also enforceable immediately after their legal force (e.g. a judgment of divorce ). However, knowledge of whether the judgment is in force is essential for the calculation of the time limit for enforcement, and it is therefore necessary to know when it was served on the other party and how it reacted to it. This can typically be ascertained by enquiring with the court that issued the judgment. If the last day for appeal fell on a Saturday, Sunday or public holiday, it is always possible to appeal on the next working day. This postpones the legal validity and consequently the enforceability of the court decision.

In some cases, we are talking about so-called direct enforceability, which can be highly recommended, for example, for loans and similar types of contracts. If the contract is concluded in the form of a notarial deed, this direct enforceability may be enshrined in the deed. Under the agreement, the debtor then undertakes to fulfil its debt by a certain date and at the same time allows the creditor to recover the debt directly (typically through a bailiff) without the need to go through additional court proceedings. However, if the parties had only entered into a contract between themselves without a notary being present and one of them was not to pay, then a pre-action notice and lengthy litigation would normally follow.

It is further necessary to distinguish from direct enforceability provisional enforceability, which is a specific legal concept that allows a certain judgment to be enforced before it becomes final. This is, of course, a significant breakthrough in legal certainty and is far from being possible at any time. The court may resort to such a step when there is a threat of irreversible damage that would otherwise defeat the purpose of the court’s decision.

Example:

A typical example of the use of provisional enforceability is in child support cases, because waiting for a final judgment while the other party continually appeals can cause irreversible financial hardship to the custodial parent. The interest of the child is then primarily concerned, who must have sufficient means to support himself and cannot wait for many months or years for the appeal proceedings to be concluded. Therefore, provisional enforceability makes it possible to order one parent to start paying maintenance in a certain amount immediately, although proceedings will still be pending in which, for example, the income of the obliged parent and the legitimate needs of the child will be examined and proved in detail.

Another situation where preliminary enforcement would be appropriate would be in the case of illegal exploitation of patent rights. Imagine if a pharmaceutical company discovered a new and groundbreaking drug for a particular disease, the formulation of which it patented, but another company acquired the formula and used it to create its own drugs. Both companies would surely hire good and capable lawyers and embark on what could be a multi-year legal battle. But the absence of a final (and enforceable) judgment could cause millions in damages. However, with provisional enforceability, similar damage can be avoided.

The law says that provisional enforceability can be granted in respect of

• judgments ordering the payment of maintenance or wages for the last 3 months before the judgment was handed down,
• judgments ordering the return of a child in cases of so-called “international child abduction”,
• judgments where the court has so determined, provided that the party is at risk of irreparable or substantial harm.

Legal force, enforceability and provisional enforceability are therefore not mere abstract concepts of legal theory. Their understanding is essential and plays a crucial role in the outcome of litigation. In the cases cited above, however, we have referred only to the enforceability of a judgment. It should be borne in mind that different rules may apply to a decree and an order for payment in this respect.