Protecting the Claim, Precautionary Attachment and Security

Joint and Several Liability, Suretyship, Guarantee and Recourse

• The liability of several debtors for the same claim
• Joint and several liability arising from statute or contract
• The creditor’s recourse to one or several of those liable
• The effect on the others of payment of the debt by one debtor
• The internal relationship among debtors and the recourse claim
• Simple suretyship and joint and several suretyship
• The form, amount and term of the suretyship and the spouse’s consent
• The distinction between a guarantee agreement and suretyship
• Aval, bank letter of guarantee, pledge and mortgage
• Recourse claims of the insurer, the employer or other liable parties

Precautionary Attachment and Protecting the Claim

Interim legal protection may be needed so that the claim remains collectible at the end of the lawsuit. However, precautionary attachment, interim injunction and preservation of evidence have different conditions and consequences; one cannot automatically be used in place of another.

• Examining the conditions of precautionary attachment for a monetary claim
• Assessing whether the claim is secured by a pledge
• Different conditions for claims that have and have not yet fallen due
• Making concrete the allegations concerning the debtor’s residence, concealment of assets or flight
• Prima facie proof and assessment of security
• Executing the precautionary attachment order within the time limit
• The follow-up proceedings and the main lawsuit or enforcement proceedings
• Objections to precautionary attachment and requests for its lifting
• Interim injunction concerning the right or asset in dispute
• Preservation of evidence where there is a risk that the evidence will be lost
• Liability that may arise from unjustified interim legal protection

Steps such as investigating the debtor’s assets, attachment, sale, the ranking schedule and the annulment of dispositions are also addressed in the practice area of Enforcement and Insolvency.

Winning the Case and Collecting Are Not the Same Stage

That a claim is found legally justified does not mean that the debtor can pay or that collection is certain. In addition to the state of the evidence, the assets, security, other creditors and, where applicable, a composition with creditors (konkordato) or bankruptcy process are assessed. An investigation of assets is carried out only with lawful authority and procedures.

Precautionary attachment, injunction and preservation of evidence

Placing a monetary claim under interim security, protecting the right in dispute and establishing evidence that may be lost are different purposes. In precautionary attachment, the due date of the claim, whether it is secured by a pledge, prima facie proof and security are examined. Special conditions are required for claims that have not yet fallen due. Executing the order and completing it with a lawsuit or enforcement proceedings are also subject to time limits.

Preserve the security in a payment plan

The principal, interest, order of offsetting, due dates, the consequences of breach, the scope of the security and the time of the release must be clear. A broad release or waiver drawn up before payment is made may create a risk as to the remaining rights.