The fulfillment of obligations to act or refrain from acting is a form of enforcement intended to ensure that the debtor meets an obligation that does not involve paying a sum of money, but rather involves performing an action or refraining from a specific conduct.
Regulated by the Civil Procedure Code (CPC) between Articles 814 to 823, this method of enforcement offers unique characteristics that can help lawyers work more effectively and strategically in this field.
This article explains how obligations to perform actions or refrain from actions are carried out, providing examples, discussing key challenges, and offering practical advice for lawyers.
What does fulfilling duties to act and refrain from acting entail?
The fulfillment of duties to act and refrain happens when there is a court or out-of-court order that specifies the completion of a particular obligation.
- The obligation to act involves the debtor engaging in active actions, such as providing a service or delivering a product.
- The obligation not to act involves refraining from a specific behavior, such as stopping an action that infringes on the rights of others (e.g. refraining from constructing in a restricted zone).
The aim of the execution is to guarantee that the creditor enforces the obligation successfully by utilizing legal methods that differ based on the complexity of the obligation.
Legal basis for carrying out actions and refraining from actions
The CPC outlines the fulfillment of obligations in Articles 814 to 823, with particular emphasis on certain key provisions.
When the execution involves an action to be performed, it must be carried out within the time specified by the judge if no other timeframe is specified in the enforcement order.
This device handles the execution of required tasks.
The judge must make sure that the party has sufficient time to fulfill the obligation when setting the deadline.
If the executive title does not establish a timeframe, the judge is responsible for determining it.
The lender can ask a third party to fulfill the obligation with the court’s approval, and the debtor will be responsible for the costs associated with it.
If the obligation is not fulfilled within the specified time frame, the party seeking enforcement can request that the obligation be met at the expense of the debtor, including any losses and damages incurred, which would then be considered as indemnification.
The losses and damages will be determined during the liquidation process, after the collection of the appropriate amount.
The article enables the creditor to request the judge to enforce the obligation or seek compensation for losses and damages if the defendant fails to fulfill the obligation promptly.
It is crucial to convert the currency to make sure that the lender is reimbursed in case of a delay or non-payment.
The value for damages and loss compensation chosen by the person seeking it will be determined during a settlement process and may be paid as a lump sum.
The Judge will listen to the parties within 10 days after the benefit is fulfilled and will consider the obligation as met.
If there is any disagreement, the judge will make the final decision.
After fulfilling a duty, the Judge confirms that the task has been completed by consulting with the parties involved.
If there are no objections, the duty is seen as completed. If objections are raised, the judge resolves the dispute.
Impagnation can include conversations about the standard or thoroughness of implementation, leading to additional decisions being made to guarantee complete adherence to the requirement.
If the subcontractor fails to complete the task on time or does so inadequately, they can ask the court for permission to finish or fix it at the contractor’s cost within 15 days.
The Judge must evaluate the required expenses and instruct the contractor to make the payment within 15 days after hearing from them.
This article discusses situations in which a third-party contractor fails to fulfill their obligations properly or on time.
The lender can ask for authorization to finalize or rectify the implementation, with the expenses shifted to the borrower.
The mechanism is designed to safeguard the creditor by ensuring that the obligation is fulfilled efficiently and without harm to them, while also holding the contractor accountable for any shortcomings of a third party.
These articles guarantee that responsibilities are fulfilled properly and allow for the imposition of penalties on the debtor in case of violation, safeguarding the creditor’s rights efficiently.
End Delegations in CPC: Definition and Process
How should the performance of a duty be carried out?
The enforcement of the duty to act is a process that ensures the debtor fulfills a specific action outlined in a legal document, whether judicial or extrajudicial.
This process is primarily governed by CPC Articles 815 to 818 and aims to safeguard the enforceability of creditor rights.
The process for carrying out a required task involves the following steps:
Subpoena for debt
The person who owes money is required to fulfill the obligation within the specified time frame stated in the court order or decided by the judge.
This step is crucial to make sure that the debtor fully understands their obligation.
The count starts with the debtor’s knowledge, following the principle of contradiction.
Third-party compliance
If the debtor fails to meet the obligation within the given timeframe and if someone else can do it, the creditor can ask for the obligation to be fulfilled by a third party at the debtor’s cost.
Article 817 of the CPC permits this other option to guarantee that the creditor is not negatively affected by the debtor’s lack of action.
If a service provider fails to build a wall as agreed, the client can ask a judge to have another professional complete the work, with the original provider responsible for covering the expenses.
Imposition of penalties (astreintes)
The judge can impose a daily fine to motivate the debtor to fulfill the obligation if compliance with the third party obligation is not achievable.
The fine should be fair and enough to encourage the debtor to fulfill their obligation, without unjustly benefiting the creditor.
Offenders can request a review of the fine amount if it surpasses reasonable limits, as per STJ’s interpretation.
Conversion into losses and damage -> Transformation into losses and harm
If the debt is not paid on time, the creditor can request that the debt be converted into damages as outlined in Article 816 of the CPC.
It is important at this point to assess the harm suffered by the creditor, which will be compensated by the debtor.
A company agrees to provide personalized software but fails to meet the deadline and abandons the project. The customer can request compensation for the breach of contract by seeking damages.
Compliance achieved by using forceful methods
Other than lifting measures, other forms of coercion can be implemented, such as blocking merchandise, limiting credit, and halting business operations, while maintaining the principle of proportionality.
These actions are intended to encourage the debtor to meet the obligation without needing to immediately incur losses and damages.
Adjudication process: Operation and basic regulations
How is the obligation of not doing executed?
The obligation of not doing something is put in place to stop or end a particular action by the person who owes it.
These responsibilities are established to safeguard the rights of creditors which could be compromised by illegal actions or oversights of the borrower.
The process of execution involves a variety of steps and options, as outlined in the following.
Notice to stop behavior immediately
The initial action involves serving the debtor with a subpoena to stop the behavior that is the subject of the obligation.
The deadline for compliance can be determined by the executive position or established by the judge, as the situation requires.
- Art. 536, caput, and §1 of the CPC provide the legal foundation for judges to implement necessary measures, such as immediate termination orders, to enforce decisions effectively.
Coercive actions
If the debtor does not cooperate willingly, the judge can use coercive actions to ensure compliance with the obligation.
These actions consist of:
- Penalties imposed for each day of delay are often applied to encourage debtors to comply.
- A manufacturer who is not allowed to use a specific brand but continues to do so may face daily fines until the violation is stopped.
- The judge can order the seizure of the debtor’s assets as a security measure if needed.
- Depending on the circumstances, actions such as confiscating products, halting advertising campaigns, or deleting content may be taken during searches and seizures or the investigation of illegal activities.
- A manufacturer who is not allowed to use a specific brand but continues to do so may face daily fines until the violation stops.
Transformation of responsibility into negative financial outcomes
If the breach of the duty not to act can’t be undone, the enforcement might be changed to payment to the person owed.
- If the behavior has already caused permanent harm, like revealing confidential information, the debtor might have to provide financial compensation for the damage.
- Art. 823, single paragraph, and Art. 497 of the Civil Procedure Code provide the legal foundation for addressing losses and damage and converting them into monetary compensation.
Repairing damage is the responsibility.
The debtor might also be accountable for any harm that has been done if they violated the creditor’s rights while engaging in the wrongful conduct.
The duty can be transformed into losses and harm if the author insists or if it is not possible to get specific protection or achieve a similar outcome through alternative methods.
The resolution of these damages occurs during the settlement process, and the debtor must pay the appropriate amount for the losses.
- Art. 499 of the CPC serves as the legal foundation for converting obligations into losses and damages as outlined in specific situations.
This step guarantees that the creditor is not negatively impacted by the debtor’s actions, even if the obligation to refrain has already been met.
The creditor executes the subsidiary.
The judge may allow the creditor to fulfill the obligation on behalf of the debtor in situations where specific actions are required to end the misconduct, such as removing an unauthorized building or deleting published content.
- Legal foundation: Article 536, paragraph 1 and 2 of the Civil Procedure Code address the required actions for ensuring the enforceability of court rulings concerning obligations of refraining from certain actions.
Judicial oversight and conclusion of the responsibility
After ending the behavior, the Judge can set deadlines for the parties to respond and confirm that the obligation has been met.
The Judge will determine the validity of the claims and may impose additional sanctions if needed if the opposing party demands compliance.
Examples in practice
A service provider who fails to meet the installation deadline may be legally replaced by another provider at the default debtor’s expense.
A neighbor is legally forbidden from building on the creditor’s property. The creditor can ask for the existing structure to be removed and prevent any new constructions, with a fine for non-compliance.
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Clear description of the responsibility stated in the executive document
The requirement should be clearly and objectively outlined in the executive document, without any ambiguous language that could impede its implementation.
Vague contracts regarding deadlines or technical specifications can lead to arguments and delays in meeting requirements.
fulfillment of individual responsibilities
For obligations that require specialized skills or unique performance from the debtor, like creating a piece of art or performing specialized surgery, enforcing the obligation may not be possible.
In these situations, the responsibility may be transformed into losses and harm according to Article 499 of the New CPC.
Fixing coercive mules (astrenders)
The individuals wearing them are useful tools for ensuring that the obligation is followed, but their attachment must adhere to criteria of proportionality.
Excessive quantities can be seen as abusive, whereas insignificant amounts might not produce the intended outcome. The judge has the authority to modify the penalty if it is disproportionate or if the debtor continues to be in default.
Termination of illegal behavior
Immediate actions are frequently required to prevent irreversible harm when fulfilling obligations to refrain from certain actions.
For instance, in situations involving trespassing or pollution, a court order might be necessary to stop the illegal behavior immediately or face fines or penalties.
Execution difficulties
- The debtor’s resistance may necessitate the use of force or third-party involvement to fulfill obligations, which would be at the debtor’s cost.
- Proving that the debtor is failing to fulfill their obligation not to act may be challenging, as it may necessitate specialized knowledge or continuous observation.
- In certain situations, the creditor might opt for replacing the obligation with compensation, leading to potential disputes over the appropriate value of the indemnity.
Utilize technological resources
Utilizing technology can assist in maximizing efficiency when developing procedural components. Specific platforms like Legal AI and procedural management software provide solutions to enhance productivity.
These tools aid in monitoring deadlines, initial requests, objections, opinions, contracts, as well as researching case law, organizing documents, and offering predictive analysis on case progress, enhancing efficiency and precision in legal work.
These factors are crucial for a successful and fair execution, honoring the rights of both parties and abiding by legal constraints.
Ensuring that actions and inactions are effective
Adherence to responsibilities to act and refrain from acting is crucial in civil proceedings to uphold rights and meet obligations.
This system, according to CPC regulations, offers methods to ensure the debtor fulfills their responsibilities, which can involve using forceful actions, involving a third party, or converting the debt into losses and damages.
Lawyers specializing in this field need to understand the specific details of these processes and find effective solutions tailored to each situation.
Therefore, it is feasible to guarantee that the creditor’s rights are protected efficiently and securely, in alignment with the goals of the civil procedure.
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