May 2022

Decision of the Nafplio Court of First Instance on the Cancellation of Forced Seizure of Property

The decision of the Nafplio Court of First Instance No. 306/2022 was issued, on the basis of which the seizure report in the context of enforcement proceedings was annulled. The reason was that it was based on a defective title, a payment order which was deemed invalid. As we have stated elsewhere (see here), an attachment report can be annulled not only on grounds relating to the enforcement procedure but also on grounds relating to the invalidity of the title and in this case the payment order on the basis of which enforcement proceeded. In the case at issue, the order for payment was held to be invalid because it was directed against a natural person, a representative of a company, without it being possible to establish the legal grounds for his liability. It is important to stress this point: in the case of legal persons, the legal representative is liable, unless otherwise provided by law, only for a tort committed by himself in the performance of his duties (CC 71) and not merely for the breach of a contractual obligation on the part of the company. Even if a company (a legal person) owes a debt to e.g. a supplier, the representative of the company is not personally liable (principle of separation or autonomy of the legal person). This becomes even more evident in the procedure for issuing a payment order, where neither witnesses nor circumstantial evidence (documentary evidence) can be used to prove any tortious liability of the legal representative. The decisive passage in that judgment is as follows: 'Moreover, the latter's invocation by the latter of his status as manager and representative of their counterparty company, a status in respect of which, in any event, no relevant documentary evidence was produced at the time the payment order was issued (indicatively, the company's articles of association so that the type of company could be further established), does not establish his liability under Article 71 CC for which tortious liability is presumed, a situation which does not exist in the present case ...'.