Interim relief judge: enforcing judgment is abuse of power

The mere fact that someone has the (legal) power to take a certain action, does not always mean that he is allowed to use this power unimpaired. Under circumstances invoking a legal right can constitute an abuse of power, for example in the case where someone wants to enforce or execute a judgment only to harm the other party. Dutch litigator Marco Guit discusses recent case law on this matter.

Dutch Civil Code: abuse of power not allowed

Article 3:13 of the Dutch Civil Code states that a person to whom a right belongs may not exercise the powers vested in it as far as this would mean that he abuses these powers. A right may be abused, among others, when it is exercised with no other purpose than to damage another person or with another purpose than for which it is granted or when the use of it, given the disparity between the interests which are served by its effectuation and the interests which are damaged as a result thereof, in all reason has to be stopped or postponed.

Abuse of power to levy execution in The Netherlands

Aforementioned article also applies on the power to levy execution of a judgment. In Dutch law an interim relief judge can suspend the execution of a judgment if he has reasons to believe the executor abuses his power to levy execution. This can be the case if there are evident actual or legal errors made in the judgment, or if the executor has not other aim than to harm the other party.

Recent Dutch case law

The latter occurred in lititgation that led to a recent court case between Silverline, a high-end car rental company, and a former customer. Silverline’s lawyer had won a case against the customer in which the customer was ordered to pay Silverline for their services. The Dutch Court of Appeal, however, passed judgment against Silverline in default. Silverline was ordered to pay the customer € 2.400,- on damages and legal costs. While the lawyer of Silverline opposed the default judgment, the customer seized under a warrant of execution the bank account of Silverline and 4 of their luxury cars. In order to prevent the forced sale of the cars, Silverline’s lawyer summoned the customer to appear in preliminary relief proceedings. Silverline claimed suspension of the execution (for the during of the proceedings to have the default judgment set aside) and lifting of the attachments.

Dutch lawyers for litigation in The Netherlands

The interim relief judge emphasizes that there is no evident legal error. Yet the judge is convinced that the executor (i.e. the customer) has misused his right to execute. Telephone taps of conversations between parties, which were played during the hearing, show that the executor’s intention was to damage Silverline financially. Furthermore, the judge points out that the executor has not given any other valid interest to justify continuing the execution whereas Silverline has offered to provide security of the executor. The interim relief judge therefore grants the relief and suspends the enforcement, and lifts the attachments.