Provisional Enforcement of Monetary Judgments

In cases where a favorable monetary judgment has been obtained but the other party has filed an appeal, what can be done? Is it necessary to wait for the appeal to be resolved before collecting the money?

The Law allows for a request to the Court to enforce the judgment while the appeal or cassation proceeding against it is being resolved. The scenario is as follows:

We have obtained a favorable judgment ordering the other party to pay us a specific amount. The losing party has 20 days to pay voluntarily. They also have those 20 days to appeal the judgment.

What happens in that case? Do we have to wait for the appeal to be resolved before requesting compliance with the judgment?

The answer is no. Thus, the Law It stipulates that:

Anyone who has obtained a ruling in their favor in a sentence of conviction issued in the first instance may, without simultaneous provision of security, request and obtain its provisional execution in accordance with the provisions of the following articles.

It is important to note that since the reform of the Civil Procedure Law in 2000, it is no longer necessary to provide security to request the provisional enforcement of judgments, but rather their enforcement is requested directly.

The request for provisional enforcement must be addressed to the Court or Tribunal that issued the Judgment whose enforcement is sought and can be requested at any time from the notification of the resolution in which the appeal is deemed to have been filed, and always before a judgment has been issued resolving the appeal.

Once provisional enforcement has been requested, the Court will grant it except in specific cases which we will refer to later.

Once the Court has issued the requested enforcement order, the debtor may only oppose the enforcement actions ordered by the Court itself and must indicate alternative measures and offer sufficient security to cover any delay in enforcement. The Court will decide whether or not to accept these alternative measures. The debtor may also oppose the enforcement by alleging payment, which must be documented. The Court will decide by Court order whether or not to uphold the opposition to enforcement, and no appeal may be filed against this order.

On the other hand, the Law excludes some cases in which the Judgment cannot be provisionally enforced, such as:

• Judgments issued in proceedings concerning paternity, maternity, filiation, annulment of marriage, separation and divorce, capacity and civil status, opposition to administrative resolutions on the protection of minors, as well as on measures relating to the restitution or return of minors in cases of international abduction and honorary rights.
• Sentences that condemn to issue a declaration of intent.
• Judgments declaring the nullity or expiration of industrial property titles.
• Foreign judgments that are not final, unless expressly provided otherwise in international treaties in force in Spain.
• The compensatory pronouncements of the judgments that declare the violation of the rights to honor, personal and family privacy and one’s own image.

Now, what happens if, when the appeal is resolved, the judgment decides to revoke the sentence whose provisional execution was requested?

If the provisionally executed ruling is a sentence to pay money and is totally revoked, the provisional execution will be suspended and the executor must return the amount that, if any, he or she has received, reimbursing the executor for the costs of the provisional execution and compensating him or her for the damages and losses that said execution may have caused him or her.

In other words, the amounts received, plus interest and costs, as well as any damages incurred, must be returned, provided the latter are proven by the defendant. However, requesting provisional enforcement of the judgment will always be an option to ensure compliance with and payment of the monetary award.

This is a very common and effective strategy in cases where judgments order banks to pay certain amounts and the bank appeals the ruling. One way to enforce the judgment is to request provisional execution while the bank’s appeal is being resolved, without needing to provide security.