E-note 2 – Enforcement process

Enforceable titles

Under Italian law, the claimant must possess an enforceable title in order to initiate the enforcement process. Prior to initiating the process, however, the creditor must serve a document to the debtor, known as the ‘precetto‘, or writ of execution. The purpose of this formality is to give the debtor a deadline for voluntary compliance and at the same time to assign the creditor a term (of ninety days) within which enforcement must begin.

The enforceable title is the document proving the existence of the creditor’s claim against a debtor and consequently requires the officer to enforce the claim within the limits and in the manner laid down by the law.

Article 474 identifies two types of enforceable titles:

  • Judicial enforceable titles:

–  judgments;

– remedies ‘and other documents’ to which the law explicitly attributes enforceability;

  • Extrajudicial enforceable titles:

–  certified private agreements;

–  other negotiated instruments, and documents to which the law attributes the same force;

–  documents which have been brought to the attention of a notary or other public officials.

The writ of execution

The ‘precetto‘, an ex parte document, is a formal notice to comply with the obligation in question within ten days, with the warning that in the event of failure to do so the enforcement process will begin.

This formal warning, therefore, is a prerequisite for enforcement; the law, however, makes certain exceptions to this requirement (for example in interlocutory proceedings).

The writ also has a twofold function: firstly placing the debtor in default and moreover, suspending the term of prescription of the right.

The writ ceases to be effective if, within a term of ninety days from its service, enforcement has not been initiated.

If the debtor disputes the writ, the term is suspended as provided by article 627 of the Code of Civil Procedure.

Urgent relief

The ‘provvedimento di urgenza‘, or urgent relief measure, keeps a right uncompromised and gives its owner the opportunity to seek it in the future.

The provision regulating urgent relief measures is article 669-duodecies of the Code of Civil Procedure. Regarding the implementation of protective measures, it specifies various courses of action, depending on their purpose:

  • measures on the obligations of consignment, release, performance or non-performance, where their practical execution is still in the hands of the judge who has issued the protective measure, who also determines the procedures for their implementation by issuing the necessary and/or appropriate rulings to render the jurisdictional protection granted effective;
  • seizure, for which the reference to the provisions of article 677 et seq. of the Code of Civil Procedure remains valid.

The methods of execution of urgent relief procedure are similar – apart from a few incompatibilities – to the ones for enforcement.

This measure remains exceptional and is only authorised by the Court if the procedure through ordinary channers has been unsuccessful.

Precautionary seizure

The precautionary seizure order serves to preserve the assets for which enforcement action is sought until the creditor can exercise that action.

Article 671 of the Code of Civil Procedure states that ‘the judge, at a premilitary hearing, may authorize the precautionary seizure of the debtor’s movable or immovable property owed to the creditor, within the limits of the law.

The ruling authorising the seizure becomes ineffective if it is not executed within a time limit of thirty days from its issue.

The seizure order is an enforceable title within the meaning of article 474 of the Code of Civil Procedure but is not subject to the Clerk’s certification authorising enforcement.

The precautionary seizure is automatically converted into an attachment when the enforcing party obtains a judgment ordering enforcement.

Judicial sequestration

The ‘sequestro giudiziario‘ is an interim measure regulated by article 670 of the Code of Civil Procedure, which does not protect the claim or its security – as does the precautionary seizure – but is directed towards the preservation and custody of assets whose ownership or possession is disputed. Such measure is especially useful when the pending judgment entails a practical risk that the property in question might deteriorate, be removed or altered in such a way as to prejudice the implementation of the right at issue.