Execution of an Act
Execution of an Act
Not every enforcement aims at the collection of money. In many cases, it is about enforcing a specific act, refraining from something, or tolerating an obligation. The execution of acts falls under these forms of compulsory enforcement. They are always applied when someone does not voluntarily comply with a judicial obligation. In practice, this type of enforcement is used for evictions or the fulfillment of specific acts.
The execution of an act is therefore an essential instrument to effectively enforce judicial titles even when it is not about money, but about actual performance. In the execution of an action, the debtor is obliged to perform a specific action.
Parties in Execution Proceedings
In enforcement proceedings, two main parties face each other: the enforcing creditor and the obligor. The enforcing creditor is the person who applies for the enforcement of an action to enforce a specific obligation. The obligor is the party who is obliged to perform an action and has not yet voluntarily fulfilled it.
The judicial proceedings serve to compulsorily enforce the obligation and effectively secure the rights of the enforcing creditor.
Distinction between Substitutable and Non-Substitutable Acts
In the enforcement of actions, a distinction must be made between substitutable and non-substitutable actions. If it is not clear what type of action is involved, the execution court will decide. If in doubt, an action is initially considered substitutable.
Substitutable acts are those that can just as well be performed by a third party without it making a difference to the creditor who actually performs them. In these cases, the court can permit the act to be performed by someone else at the obligor’s expense. These include, for example, the construction of a fence, the removal of a wall, the restoration of a path, or the carrying out of repairs.
Non-substitutable acts, on the other hand, can only be performed by the obligor themselves because they directly depend on their personal will or cooperation. These include, for example, the signing of a notarial deed, the issuance of a certificate, or the rendering of accounts.
Peter HarlanderHarlander & Partner Rechtsanwälte „The execution of an action ensures that court decisions do not only exist on paper, but are also actually implemented.“
Execution of Substitutable Acts
In cases of a substitutable act, the court can authorize the enforcing creditor to have the act performed at the obligor’s expense. This is often the case in practice for repairs, construction work, or similar services.
Once the court has granted authorization, the enforcing party or an expert commissioned by them may perform the action instead of the obligor. With this, the actual enforcement proceedings are generally concluded. Only if the obligor hinders the execution or offers resistance will the court act again.
Costs
The enforcing creditor can already request in the enforcement application that the obligor pays the estimated costs of the planned action in advance. For this, the amount of the costs must be substantiated, for example, by a cost estimate. If the court grants this request, the decision can be enforced like an ordinary payment title.
In the execution of a payment order, for example, a claim execution is used.
Removal of Resistance
If the obligor offers resistance during the performance of the act, the court can, upon application, commission a bailiff to secure the work and provide support. This ensures that the act can be performed properly and without obstruction.
Execution of Non-Substitutable Acts
In the execution of non-substitutable acts, these cannot be performed by another person because they are inseparably linked to the will or personal performance of the obligor. Typical examples include the issuance of a service certificate, the rendering of accounts, or the signing of a notarial deed.
Threat and Imposition of Penalties
So that the obligor actually performs the owed act, the law provides that the court can use coercive measures. The obligor is initially urged to fulfill their obligation by a threat of fines or imprisonment. Only when the set deadline expires without a response can the threatened penalty be imposed and executed upon application by the enforcing party.
Multi-Stage Process
The procedure is structured in multiple stages. First, the obligor is given a deadline within which they must perform the owed action. In the event that they fail to act, a fine is threatened. After this deadline expires, the enforcing party can file a request for a penalty. The court then imposes the threatened fine and sets a new deadline. When setting the new deadline, a stricter coercive measure, usually a higher fine, is threatened at the same time. Imprisonment may also be considered as a coercive measure if the debtor does not meet his obligations in the execution proceedings.
This system repeats until the obligation is fulfilled. The penalties thus serve to enforce the judicial claim. It is important that these individual steps do not constitute new enforcement applications. The original enforcement authorization remains valid throughout the entire proceedings.
Sebastian RiedlmairHarlander & Partner Attorneys „An execution is not an end in itself, but the means to consistently enforce legitimate claims.“
Your Benefits with Legal Assistance
The enforcement of an act requires precise knowledge of legal procedures. A lawyer ensures that applications are correctly filed, coercive measures are requested in a timely manner, and all procedural steps are correctly observed. This prevents the procedure from being delayed or failing due to formal hurdles.
A specialized law firm can assess which enforcement measure is most effective in a specific case. This ensures that the procedure is conducted efficiently and the enforcement of the claim is legally secured.
- Support throughout the entire enforcement procedure
- Legally sound design and implementation of all necessary steps
- Support in enforcing your claims
