Another significant amendment to the Code of Civil Procedure entered into force on 1 July 2023 and amended a number of civil procedure legislation. Act dated 9 March 2023 the amendment of the Act – the Code of Civil Procedure and some other acts have been amended, inter alia, once again, the rules concerning the lodging of a charge of deduction in the course of the proceedings, and therefore the legal standard resulting from the Article 2031 k.p.c.
For reminder, according to Article 2031(1) k.p.c. as before 1 July 2023, only the defendant's claim of deduction may be based on the defendant's claim from the same legal relationship as the claimant's claim, unless the defendant's claim is indisputable or a document not derived exclusively from the defendant.
section 2 and 3 The provision in question regulated the question of the time limit within which the defendant could raise the charge of deduction and the form of such notification (i.e. in the form of a procedural document as the only acceptable form).
Only amended by the Amending Act section 1 the provision in question and in accordance with its wording from the date of 1 July 2023, The charge of deduction may be based only on a claim:
- the defendant from the same legal relationship as the claimant's claim, unless the claim is unsettled, confirmed by a final judgment of the court, by a court of arbitration, by a settlement concluded before a court or a court of arbitration, approved by the court by a settlement concluded before a mediator, or by a document similar to that which the plaintiff has recognised;
- for reimbursement of the benefit granted one of joint debtors to other co-debtors.
An amendment shall mean a substantial modification in the order of the order of claims which may be the basis for the defendant to lodge a charge of deduction in the course of the proceedings.
This amendment implies a substantial modification in the order of the order of claims which may be the basis for the defendant to lodge a charge of deduction in the course of the proceedings.
According to the previous applicable date 1 July 2023, the state of law, the charge of deduction could be based only on the defendant's claim from the same legal relationship as the claimant's claim, unless the defendant's claim is indisputable or materially similar to a document not exclusively from the defendant.
According to the current wording, the claim should, in principle, continue to be based on the same legal relationship as the claimant's claim (the title of the example, on the grounds of the claimant's claim for payment of the remuneration due to the work contract, the defendant's claim to deduct the defendant's claim for contractual penalties calculated on the basis of that contract) but the catalogue of exceptions to that principle has changed.
Invariable claims remain. In such a situation, even if the claim originates from a different legal relationship than that of the claimant, then it is still possible for the defendant to declare it in the proceedings under the charge of deduction.
It should be noted that while the definition of a non-contested claim is certainly clear, in practice it seems to be a rare circumstance, in particular in view of the fact that the parties to the dispute hang. However, the change second Exceptions.
Namely, before the day 1 July 2023 It was possible to raise the ground of recovery also in respect of claims receivable similar to that of a document not exclusively from the defendant.
Marginally, it should be pointed out that such a formation of the wording of the provision may have left a relative Interpretative Freedom, without specifying on the occasion of what specific document the defendant should have given his credentials in order to be entitled to lodge a charge of deduction.
In accordance with the current legal condition, the admissibility of a plea of recovery in a situation other than the source of both claims in the form of the same legal relationship is dependent on the following circumstances: the determination of the claim by a final decision of the court, the decision of the arbitration court, the settlement concluded before the court or the arbitration court or the settlement approved by the court before the mediator.
Interestingly, while requiring references to the previous legal condition, in such a situation the claim may also be accompanied by a document confirming its recognition by the claimant.
The initial wording of this exception may remind the previous wording, as there is also a broad reference to the document and to the claim, but the catalogue of these documents will in practice be different, since it must be a document confirming the applicant's recognition of the claim.
Therefore, contrary to the previous wording of the provision, there must be clear recognition of the claim by the claimant in such a situation, which constitutes a significant restriction compared to a document which does not originate solely from the defendant (which could be called into question by the plaintiff).
A complete novelty is the addition of point 2 to the list of exceptions in the form of claims for reimbursement of the benefit granted one of joint debtors to other co-debtors. This possibility will certainly facilitate the recovery of claims between joint and several debtors.
As a result of the amendment, they did not change section 2 and 3 a commentary recipe. The defendant may, therefore, continue to raise the charge of deduction no later than in the event of a dispute over the substance of the case or within the time limit two weeks from the date his claim became due.
Therefore, the emphasis is still on the speed of the proceedings, since the need to raise the charge of levy promptly eliminates the risk of its application only at the end of the process in which the case could have been prolonged due to the need to command the existence of a charge of charge.
Similarly, the charge of deduction may continue to be raised only in a procedural document to which the application shall apply mutatis mutandis, with the exception of those relating to fees.