Friday, May 4, 2012

Preliminary Attachment

In the Civil & Commercial Procedures Law issued by Royal Decree 29/2002, creditors are granted a legal remedy known as “provisional attachment” which serves to protect the creditor’s rights against his debtor.

As per the prescribed methodology, a creditor may request the Primary Court to issue an order of provisional attachment over the properties of his debtor.

The Civil & Commercial Procedures Law has specified the cases in which a creditor may exercise such a right against his debtor. These cases are (a) if the creditor is a bearer of a bill of exchange or promissory note and the debtor is a merchant and the said instrument obligates him to adhere to it in accordance with the Commercial Law, and (b) in any case in which the creditor fears he may lose his rights, provided that the creditor must prove to the Primary Court that such fear is justified.

The Civil & Commercial Procedures Law specifies certain additional conditions which must be met before a provisional attachment order can be granted. First, the creditor’s right must be definite, meaning the debt upon which the creditor is relying on (x) is in existence and (y) is not based on a probability or subject to a condition. (However, the debt can be subject of a dispute.) Second, the creditor’s right must be matured, meaning that the debt is due and payable at the time of filing of the request for the provisional attachment.

In addition, if the creditor does not possess an “executive deed” (such as a final non-appealable Court judgment), or if the debt sum is not specific (meaning the specific numerical amount of the indebtedness sum is not known), then the Judge issuing the provisional attachment order should provide a temporary estimation of the debt.

Once the provisional attachment order has been signed by the Judge, the Court must notify the debtor within the following ten days; otherwise, the provisional attachment order shall be considered null and void.
Furthermore, the creditor is required, within the above ten days, to file a court case, requesting the “validation” of the provisional attachment order.