Judicial Consignments in the Non-contentious Proceedings Reform

Written on 21 Jun 2016

The passing of the Non-contentious Proceedings Act 15/2015, of 2 July, has created, for the first time in our procedural tradition, a specific procedure for judicial consignments, setting a new regulatory framework for whoever aims to extinguish their payment obligations, whether by judicial or notarial means.

In chapter II of Title V, the Non-contentious Proceedings Act 15/2015, of 2 July, (hereinafter the “LJV“) regulates the matter of “judicial consignments”; a fact that confirms the nature of the consignment as an action of non-contentious proceedings. To this effect, in this chapter the LJV covers the procedure by which the debtor, declaring his right to be free from the payment obligation, places the obligation owed at the disposal of the corresponding authority.

In relation to this debtor’s right, article 1176 section three of the Civil Code observes a special unprecedented case in our law: consignment from excessive onerosity. The wording of this article, inspired by the fundamental principle of equity, states that consignment shall be performed in all such cases “where the fulfilment of the obligation is more cumbersome to the debtor through causes not attributable to him”. This means, provided that situations arise unknown to the debtor that worsen his situation, he may perform consignment, so that when this consignment is concluded, he will be freed from this obligation.

According to article 98.2 of the LJV, the principal jurisdiction, when referring to territorial competence, corresponds to the Court of First Instance where the payment should be made. Alternatively -and in this order-, two jurisdictions are contemplated: any jurisdiction in the different places where the obligation can be fulfilled and, failing this, the jurisdiction of the legal address of the debtor.

The LJV resolves another doctrinal controversy, which is, who performs the active legitimization of judicial consignments. In this respect, article 1178 of the Civil Code provides that the judicial consignment may be performed by a third party, other than the debtor, provided that we are not faced with an obligation that has to be performed personally.

On the other hand, article 99.1 of the LJV stipulates the requirements that the request made by the promoter of the consignment has to meet necessarily. To this effect, the requirement that is probably worthy of most attention can be found in the second paragraph, where there is a requirement for the promoter of the matter to prove that he has offered payment -if applicable- and in any case, the announcement of the consignment to the creditor and other parties interested in the obligation.

Precisely, in article 1176 of the Civil Code, the new regulation covers the cases where the offer of payment is not necessary, and these are when the debtor does not appear at the place where the payment should be made; when we come up against a case of debtor’s disability; when various people have an interest in receiving payment; and when the obligation certificate has been misplaced. In addition to the legal provisions, the doctrine has added other cases, such as: the debtor’s unawareness of the entity of the debt; term obligations with automatic default; advance refusal of the payment; and the creditor’s refusal to give a receipt or proof of payment.

Finally, another aspect worth highlighting is the new regulation on the notarial consignment. In this respect, before the reform enacted by the LJV, simply depositing amounts due before the notary were not considered per se fully and finally settled. However, the Final Ruling 11 of the LJV has introduced Title VII in the Notaries’ Law, under which article 69 states that the consignment may be performed before a notary and will have the effect of full and final settlement if the creditor accepts the payment or performs consignment within a period of ten calendar days from the notarial notification.