The Supreme Court has held that in exceptional cases, the creditor’s conduct in enforcement proceedings will constitute an abuse of law justifying denial of the creditor’s right to execute an order. Therefore, the creditor’s inappropriate attitude may make it impossible to enforce a claim awarded by a final court decision.
Supreme Court of Poland judgment of 12 September 2018, Case II CSK 664/17
Debtor’s special situation
The Supreme Court adopted this view in a case challenging the enforceability of an order for payment which, as it later turned out, was issued on the basis of a forged promissory note.
The order for payment had not previously been successfully challenged in the proceedings for payment due to the inaction of the defendant, a woman who allegedly issued a promissory note guaranteeing a debt of her husband’s. Her signature on the promissory note was forged. The order became legally binding, but no enforcement proceedings had been instituted for almost ten years.
This lulled the woman’s vigilance. Without proper knowledge of the law, she did not take any further action in the case, and in particular did not inform the law enforcement authorities of the crime committed to her detriment. In the meantime, the deadlines for reopening the legally final proceedings for payment expired, which would have given her a chance to challenge the order for payment.
Shortly before the statute of limitations on the main debt expired, the creditor assigned the case to debt enforcement proceedings. This prompted the debtor named in the promissory note to initiate criminal proceedings. During the proceedings, it was found that the signature on the promissory note had been forged, but the time limit for convicting the perpetrator of the offence and thus seeking damages against him had expired.
Then the woman brought an action to revoke the enforceability of the payment order. The case went to the Supreme Court and was the subject of a debate on the principles of social coexistence in enforcement proceedings.
The sense of justice and procedural formalism
The Supreme Court held that the lack of an obligation resulting from the forgery of a promissory note cannot be the basis for rendering a payment order unenforceable. An opposition action (to defeat the enforceability of an enforcement title) may not violate the res judicata effect of final and binding court decisions and may not be based on allegations aimed at changing the content of the final and binding decision.
This action is justified only by events that occurred after the creation of the enforcement title (after the conclusion of the hearing). However, the promissory note had been forged earlier, before the claim for payment was filed.
Despite this assessment, the Supreme Court issued a favourable decision for the debtor. It appealed to the principles of social coexistence and abuse of subjective rights (Art. 5 of the Civil Code), which are fully applicable at the enforcement stage. A negative view of the creditor’s attitude, constituting an abuse of the law, may result in refusal to execute on a court judgment or an order for payment obtained by the creditor.
Therefore, it is permissible to evaluate the conduct of a creditor seeking to enforce payment. But in such cases, the objection is based on Art. 840 §1(2) of the Civil Procedure Code, and not Art. 5 of the Civil Code. The violation of principles of social coexistence by the creditor’s conduct will be an event as a result of which the court decision cannot be enforced.
The Supreme Court considered that in the circumstances of the case the execution of the order for payment would constitute an abuse of rights, which should not enjoy judicial protection. The creditor’s professionalism and conscious use of an order of payment issued on the basis of a forged promissory note contributed to this assessment, as did the long delay in initiating enforcement, which led to a situation where the debtor relinquished exercise of her rights in court and lost the possibility to reopen the proceedings for payment. The fact that the debtor herself did not use any part of the benefit secured by the promissory note was also considered significant.
The Supreme Court reasoned that a creditor should not benefit from someone else’s crime. It found such an attitude to be contrary to the principles of social coexistence, which refer to universally recognised values: the obligation for civil entities to be guided by good practice and good faith, as well as the conviction that in pursuing their own interests they must not harm others.
The Supreme Court also took into account the difficult life and material situation of the debtor, who was abandoned by her spouse, the principal debtor. In this context, the court found it impossible to reconcile with an elementary sense of justice that the debtor would lose her property and livelihood without committing any fault.
This ruling recognised the primacy of the principles of social coexistence over procedural formalism. Its wording and the accepted justification may help other debtors whose particular situation should exclude the possibility of enforcing judicial decisions. Recourse to the principles of social coexistence should be made when the protection provided by legal provisions is not sufficient.
Agata Jóźwiak, attorney-at-law, Dispute Resolution & Arbitration practice, Wardyński & Partners