Enforceable by stock

At the end of the proceedings, the judge issues a judgment or order. In those ruling may include that the judgment or order be provisionally enforceable. This can have far-reaching consequences. ‘Provisional enforceability’ is a complex term, but it occurs regularly in court proceedings. Therefore, it is important to be aware of its meaning and possible consequences.

What does executory mean?

A judgment or order can normally be enforced immediately. This means that the convicted person must immediately comply with the judgment. However, this enforcement is suspended by the institution of appeal. But, if a judgment or order is provisionally enforceable, direct enforcement remains possible regardless of whether an appeal has been filed. Thus, the contents of the judgment must already be executed without the defendant's acquiescence or exhaustion of all remedies.

Executable by stock exception but is almost always the case

Provisional enforceability is thus an exception to the main rule. However, because it is almost always claimed and usually not defended, almost all judgments are declared provisionally enforceable. In practice, therefore, it is not an exception, but customary. There is a rationale behind this: a party that has to go to court to prove that it is right must be able to do something with that right once a judgment has been rendered. It is not appropriate to have to wait until all legal remedies have been exhausted.

When is it enforceable?

In a subpoena proceedings the court may, at the request of a party, declare the judgment provisionally enforceable. The judge determines on a case-by-case basis whether this is an appropriate measure. He thus has a discretionary power. In a application procedure the court may, in addition to at the request of a party, itself (ex officio) declare the order provisionally enforceable. This also applies to the interim relief judge in summary proceedings. Further, if in a summons proceeding the judgment was not declared provisionally enforceable and the judgment was appealed, an incidental claim for provisional enforceability of that judgment may still be filed.

What can you do about provisional enforceability?

The reason you appeal is that you disagree with the court's ruling. Having to enforce the judgment or order can be very unpleasant. Is there nothing you can do against a judgment or order that has been declared provisionally enforceable? The law still offers a way out. A party can, by means of an incidental claim, ask the higher court to order the suspend implementation. This is called an incidental claim for stay of execution.

Attorney's opinion on provisionally enforceable

If a judgment or order is declared provisionally enforceable, it has far-reaching consequences for both litigants. The sentenced party must execute the contents of the judgment even if it appeals. For the ‘winning’ party, there are also risks to executing a judgment on a provisional basis. If the judgment is reversed on appeal, the enforcement actions will also have to be reversed. Moreover, executing a judgment that is overturned on appeal is a wrongful act. Want to know more? Then contact the trial lawyer at Lexys Lawyers.