Foreclosure

Voluntary enforcement of obligations / Enforcement of obligations / Enforceable title / Debt that is certain, of a fixed amount and due / Limitation of the right to enforce / Attachment of movable or immovable property, distraint / Contesting enforcement / How we can help you

 

Voluntary performance of obligations

According to the law and the rules of good faith, every debtor is bound to fulfil his obligations voluntarily, regardless of their nature and purpose (e.g. the obligation to conclude a certain contract, the obligation to deliver an ordered good, the obligation to return a borrowed sum of money, etc.).

If a debtor fails to fulfil his obligations voluntarily, the creditor is entitled to obtain the assistance of the state authorities in order to force the debtor to fulfil his obligations.

For more details on the relationship between creditors and debtors please visit the section Creditor vs debtor relationships.

 

Enforcement of obligations

The way in which the creditor can force the debtor to fulfil his obligations is called enforcement.

Enforcement is a procedure that is carried out with the permission of the courts and through a bailiff.

 

Enforceable title

An enforceable title must be the basis of any enforcement.

An enforceable title is a document that states the obligation to be performed by the debtor and that can be presented to a bailiff for enforcement.

The law regulates a number of documents that constitute enforceable titles (e.g. a court judgment, an arbitration award, a cheque, a promissory note, a credit agreement, a mortgage agreement, a document authenticated by a notary public, etc.).

It should be noted that it is only the law that determines which documents are enforceable titles.

The parties may not produce documents which are enforceable instruments other than those expressly and exhaustively provided for by law.

For more information on concluding contracts, please go to the section Drafting and negotiating contracts.

 

A claim that is certain, of a fixed amount and due

The existence of an enforceable title is not sufficient to initiate an enforcement procedure, but the existence of a certain, liquid and enforceable claim is also necessary.

In other words, at the time enforcement begins, the debtor’s obligation must be due and clear both as to its nature and extent.

 

Limitation of the right to use enforcement

The right to initiate the enforcement procedure is limited in time, the creditor being obliged to use this procedure within the time limits set by law and/or the parties.

As a general rule, the right to use the enforcement procedure must be exercised within 3 years from the time when all the conditions for the initiation of the procedure are fulfilled. In other words, within 3 years from the moment when the debtor’s obligation falls due the creditor has the possibility to start the enforcement procedure.

If the limitation period for the right to use the enforcement procedure has expired, the debtor may successfully oppose any proceedings initiated by the creditor against him.

In other words, once the limitation period has expired, the creditor can no longer force the debtor to fulfil his obligations.

 

Seizure of movable or immovable property, attachment

In general, the enforcement procedure can take three forms: (i) execution on movable property (a procedure for the recovery of movable property), (ii) execution on immovable property (a procedure for the recovery of immovable property) and (iii) attachment (a procedure mainly for the recovery of money).

As a general rule, it is the creditor who decides on the procedure by which the debtor is to be forced to fulfil his obligations.

The forms of enforcement may be used, at the creditor’s discretion, either successively or cumulatively.

 

Contesting enforcement

Any irregularity concerning the enforcement procedure, regardless of the person who generates it (creditor, debtor, bailiff, third party, etc.) can be corrected through the courts by means of a request called an enforcement appeal.

The effects of admitting a challenge to enforcement are diverse and may consist in: cancelling an enforcement act (e.g. an attachment order), cancelling an entire enforcement, modifying a document drawn up by the bailiff, ordering the bailiff to proceed in a certain way, sharing the property sought, etc.

An appeal against enforcement is a procedure that is conducted by the court, which is carried out with increased urgency.

 

How we can help you

Our team of lawyers can provide you with legal advice, legal assistance and representation in relation to any foreclosure proceedings, both before bailiffs and the courts, so that your legitimate rights and interests are protected, as they should be:

 

• verification of the documents and conditions necessary for the commencement of enforcement;
• obtaining an enforceable title;
• referral to the bailiff to start proceedings;
• advice on the most appropriate and rapid form of enforcement;
• legal assistance and representation in a lawsuit concerning a challenge to enforcement;
• annulment of an unlawfully issued enforcement order;
• annulment of the entire enforcement on the grounds that the limitation period has expired;
• annulment of enforcement on the grounds of unfair terms in the contract;
• sharing of property owned by the debtor and the spouse.

Additional information on enforcement