What does provisional enforcement mean?

Question

José Manuel Alburquerque · Accepted Answer

It means enforcing a judgment that orders a party to pay or do something while it is not yet final because it has been appealed. The winning party can apply for it without providing any security and receive straight away what the judgment awards, while the appeal is being dealt with. If the appeal later goes against them, they will have to repay what they received and make good any harm they have caused. The law excludes some judgments, such as those on divorce or parentage other than their financial aspects, or those ordering a party to sign a contract or a deed. How to apply for it The application is made to the court that gave the judgment, from the time notice is given that the other party has appealed and always before the appeal is decided. There is no need to provide security or to deposit anything. The court grants it unless the judgment is one of those excluded or contains no order against the other party. There is no appeal against the order granting it. If the losing party complies within the twenty days following notification of the order granting it, they do not have to pay the costs of that enforcement. In addition to judgments on divorce, parentage and other matters of civil status, except for their financial aspects, the law excludes those ordering a party to make a declaration of intent, such as signing a deed, those annulling patents, trade marks or other industrial property rights and the compensation awarded for infringing a person's honour, privacy or image. How the losing party can defend themselves Once provisional enforcement has been ordered, the losing party can only object on these grounds: That the judgment could not be provisionally enforced, for example because it is one of those excluded. If the order is to do or hand over something, that it would be impossible or very difficult to restore the previous situation or to compensate for it if they later win the appeal. If the order is to pay money, that a specific attachment would cause them harm that could not be repaired. They cannot object to the enforcement itself. In addition, they must propose other measures and offer security for the delay. That they have already paid or complied, or that there is an agreement with the winning party, provided they prove it with documents. If the order is to pay, the losing party can also stop the attachments by placing at the court's disposal, to be handed over to the winning party, the amount of the award with interest and the costs incurred. There is no appeal against the judge's decision on the objection. The risks For the winning party, the risk is that the appeal court overturns the judgment. The winner will then have to repay what they received, reimburse the losing party for any costs of the provisional enforcement that party has paid and compensate the losing party for any harm caused. If the judgment is only partly overturned, the winner will repay the difference with interest at the statutory rate. That is why it is advisable to assess beforehand how solid the judgment is. For the losing party, appealing is not enough to delay payment.