ro fr
universul juridic magazin

Limits of the creditor’s possibility of obtaining, before the court, the forced execution in kind of the contractual obligations of provision of services

The purpose of this study shall consist in the description of the situations in which, even if the creditor faces a non-performance without justification, its access to the forced execution in kind of the contractual obligation of provision of services shall be limited by the judge. In order to determine which these limits of the forced execution in kind are, first we examined the history of the remedy on the European continent and in Romania and afterwards, we examined the manner in which the respective remedy is analysed in other judicial systems. The historical study first allows us to notice that the evolution of the forced execution in kind bears a resemblance to a pendulum, in relation to its routing. This demonstrates that the opposed forces which act over it (namely, arguments for and against the forced execution in kind) have a comparable power. Afterwards, it reveals, as well, that the pure systems, in which the forced execution in kind was either permitted, in all cases, or prohibited, in all cases, only existed in early times, during the stages of history, and the rules have become more refined over time, and thus, the condition of the remedy was somewhere between those two radical positions. These two remarks emphasized by history are part of the explanation of the fact that remedy of the forced execution in kind is regulated at present, worldwide, on the one hand, in a very varied manner, but, on the other hand, all the time within the portion between those above-mentioned radical positions. The analysis of foreign legislations reveals, in its turn, important conclusions: The first conclusion shall consist in the fact that all regulations comprise certain common concerns in the matter of the forced execution in kind. Thus, the impossibility of performing the obligation (namely, of carrying out its object) represents everywhere a limit of the creditor’s access to the forced execution in kind. It does not necessarily mean that the content of this limit is homogenous, in all laws; for instance, the German laws makes a distinction among the regimes of the impossibility of execution, first, as it is about an absolute or relative impossibility and then, such as the impossibility is unforeseeable or caused by the debtor itself. These distinctions are mot made – at least, not explicitly – in other systems. A common concern is also that of the obligations of provision of services intuitu personae. However, in this case as well, the solutions vary: (i) In France, in common law, in UNIDROIT Principles and in PECL, the creditor’s access to the specific forced execution is simply denied for such obligations; the situation is also similar in Québec. (ii) In Germany and in the DCFR case the solution is more nuanced, in that, broadly, it should be investigated whether the interest of the creditor in the forced execution in kind is enough significant so that it might defeat the reasonable resistance of the debtor of the obligation intuitu personae. (iii) Finally, in the new legislative context of Romania, the legislator’s concern for the situation of the debtor of the obligation intuitu personae shall not at all be exercised in the substantive regulation (in that the creditor may be rendered conviction judgments, as well, for these obligations), instead, it is exercised in the matter of procedural law (in that the debtor shall not be forced manu militari to enforce a writ of execution under which it was convicted to the forced execution in kind of an obligation intuitu personae, but it shall be forced to it in pecuniary terms). The second conclusion arising from the study of foreign regulations is that there are also areas of divergence between the solutions rendered by various laws. First, there are certain regulations which consider the excessive burden of the possible forced execution (in common law, in Germany, in UNIDROIT Principles, in PECL and in DCFR), while within other regulations, these considerations are totally irrelevant (France). Then, in order to grant the remedy of the forced execution in kind, certain regulations consider the contribution which the creditor had to increase the prejudice caused to it because of the non-execution (DCFR case), while other regulations do not consider it (the case of common law). Finally, certain jurisdictions shall consider all well, interests which are outside the parties under dispute, such as, for instance, the concern of the company not to hold the courts liable for disputes subsequent to that pending, the concern of the company not to dispel securities or the concern of the company to allow efficient nonexecution, while in other jurisdictions, such considerations are totally irrelevant for the decision to allow the creditor’s access to the forced execution in kind or not. Afterwards, we examined to which extent the limits of the forced execution in kind, identified upon examining the foreign legislations, may be included in the Romanian law. The following issues were considered: (i) the assumption of the impossibility of carrying out the object of the obligation, (ii) the situation of the obligations intuitu personae, (iii) the case of excessive burden of the forced execution in kind [both in a simple state and in the complicated variants of the additional items consisting in the (a) the profit obtained by the creditor as a result of the non-execution, (b) the lack of action of the creditor for reducing the negative consequences of the non-exercise and (c) the exceptional circumstances in which the debtor may be found, such as that in which its life is menaced by the execution] and, finally, (iv), the issue of the interests outside the parties under dispute (holding the courts responsible, loss of resources and the efficient non-executions).