A Comprehensive Guide to Executive Trials in Civil Procedure
Pledge of Pretoria
The Pledge of Pretoria involves delivering goods to a creditor to secure payment of a debt. The administrator (creditor) manages these goods and uses the generated income to settle the debt. A formal inventory is taken, and the creditor must maintain detailed records of their administration, providing an account every year for property or every six months for furniture.
The debtor retains the right to request a new auction of the assets, but with halved notice periods. They can also reclaim the assets by settling the debt and associated costs. The creditor can choose to replace the pledged goods through a new auction or opt for an embargo replacement.
Grant Deed
A Grant Deed is necessary for the transfer of property, as the auction minutes alone are insufficient. This deed, signed by the contractor and the Judge representing the debtor, should be finalized within three days of the auction. The deed must include:
- All trial records demonstrating their full force and effect.
- All records related to the auction.
- Background information on the purging of any mortgages.
Invalidity of the Auction
An auction can be challenged on procedural or substantial grounds:
Nullity Procedure
Procedural invalidity arises from procedural errors and must be raised during the trial.
Substantial Nullity
Substantial nullity pertains to defects in the auction sale itself and must be claimed in a subsequent ordinary trial.
Third Parties in the Executive Trial
A third party in an executive trial is not originally involved but seeks to protect their interests potentially affected by the trial’s outcome. There are three types of third parties: interveners, independent third parties, and exclusive third parties. In executive trials, only third parties with exclusive interests are typically admissible, including:
- Third Party Domain
- Third Party Holding
- Third Party Priority
- Third Party Payment
The procedural opportunity for third parties claiming domain or possession arises from the embargo, even before the successful bidder receives the goods. For third parties with priority or payment claims, the opportunity begins with the embargo and extends until payment is made to the executor.
Third Party Domain
This arises when the embargo is placed on assets possessed but not owned by the debtor. The rightful owner can claim their right through this route. The process is handled in a separate notebook, with the executor and the executed party as defendants. It follows regular trial formalities, excluding the reply and doubles (Article 521 of the Code of Civil Procedure).
The third party’s claim must meet the requirements of Article 254 of the Code of Civil Procedure. Supporting documents proving ownership are crucial. If a public instrument predates the executive demand, the third party can request a suspension of the urgency procedure.
Suspension
A written request to the court, accompanied by supporting documents, can halt the urgency proceedings. If the suspension is not granted, the auction proceeds with all assets under the debtor’s claimed right (Article 523, paragraph 2 of the Code of Civil Procedure). Decisions related to the third party are appealable only in effect.
Third Party of Possession
This is frequently used due to the simpler proof of possession compared to ownership.
- There is a presumption of ownership in favor of the possessor (Article 700 of the Civil Code).
- Unlike the third-party domain, this is considered an incident and can potentially suspend the urgency notebook with sufficient evidence of possession (Article 522 of the Code of Civil Procedure).
- Despite being an incident, the first resolution is typically notified by ballot by the president. Article 521 of the Code of Civil Procedure allows for a request to delay the withdrawal of the assets for 10 days from the arrest’s lock date (Article 457 of the Code of Civil Procedure).
Third Party of Priority
This involves a third party claiming a right, privilege, pledge, or mortgage that grants them priority payment. They seek to ensure their preferential status in the debt repayment order.
- Documentation or circumstances justifying the priority right must be presented.
- This does not halt the proceedings but affects the payment distribution. It acts as a pre-appeal incident, suspending payment until a final decision is reached (Article 525 of the Code of Civil Procedure).
Third Party Payment
This applies when the debtor has no other assets besides those seized in the main proceedings. The third party aims for a proportional distribution of funds among valid creditors.
- The third party must have a valid enforcement claim, and their application is treated as an incident.
- The payment procedure is not suspended. However, the creditor can initiate a third-party claim or request the court to instruct the seizing office to retain the proportionate share for the second creditor from the auction proceeds (Articles 528 and 529 of the Code of Civil Procedure).
Executive Trial: Obligation to Do
Article 1553 of the Civil Code provides the creditor with three options when dealing with obligations:
- Compel the debtor to perform the service.
- Request permission to have a third party perform the service at the debtor’s expense.
- Demand compensation for damages.
The first two options can be pursued through this procedure, while damage compensation requires a regular trial. The procedural requirements are similar to the Executive Trial by Obligation to Give, with the key difference being a determined obligation (clear object of the obligation) rather than a liquid one.
Two variations exist based on the obligation’s object:
Signing of a Contract or Constitution of Liability
: In this case, the procedure is identical to trial by obligation to Executive, with the following particularities: i) The requirement is perceived by the debtor to sign the document within the time specified by the court. ii) If it agrees, warning operates whereby the judge can sign it on their behalf. b) Implementation of a Work Material: It is essentially the same procedure, but the requirement is to summon the debtor to fulfill his obligation, fijándole within the purpose (Article 533 of the Code of Civil Procedure). If the debtor does not raise exceptions or they are rejected, and failed in its obligation to the creditor born two rights: i) request the court to authorize him to conduct it works through a third party under the executed (Article 536 of the Code of Civil Procedure). In this case you must submit a budget, if contested by the debtor, will be replaced by set by an expert (Article 537 of the Code of Civil Procedure). determining value, the debtor must enter it within the third day, and if not, shall be seized and auctioned off property in accordance with the provisions of the executive view of obligation to give. II) request the court urged the debtor to execute the work, either because it satisfies most or because it is a very personal obligation. The constraint is a detention for 15 days or a fine proportional(Articles 542 and 543 of the Code of Civil Procedure) 2. Executive Trial obligation not to do: In principle, apply the same rules of enforcement procedure under compulsion to do with the following modifications: a) It is essential provenance it can be destroyed the thing done and its destruction is necessary for the purpose it was taken in view of concluding the contract (Article 544 of the Code of Civil Procedure). If you can not destroy, the debtor must compensate the losses, which will be pursued through an ordinary trial. b) We require enforceable obligation prescribed not currently required and identified. c) The execution can be defended by promoting an incident whereby alleged that the obligation can be met by means other than importing the destruction of the thing(Article 1555 Civil Code) d) that the debtor seeks to destroy the thing or to authorize the creditor to do so at the expense of the debtor.