Requirements for the lien, resolution rejecting
Posted by Manuel Casal | Section Juris. Litigation , Jurisprudence
"II. - The lien is not a measure of coercion by the defendant's attempt to get access to the payment of what he calls or wants to claim that the plaintiff, but that is a measure that aims precaution to ensure the actor, when the circumstances reveal it necessary to charge that, with an appearance sufficiently grounded claim or legal claim, hence the jurisprudence of this room, making the interpretation of Article 2 of Decree of 1 May 1992 he repeated that there are two essential requirements to be entitled to request lien: a good appearance of the right to claim (Prima facie case), and a danger that may thwart the effectiveness of the credit for the absence of the defendant's property when the judgment is issued must be executed (periculum in arrears).
III. - As for Prima facie case, Article 2 of Decree of 1 May 1922 requires the applicant to submit a title that the embargo is in the executive or otherwise, that the degree of appearance right. In this case, Mr.. JGV presented to substantiate its claim of lien, a private purchase contract signed between the parties with earnest on 23 October 2007. However, Mr. JGV not require the execution of the aforementioned contract, which give the same executive as a general principle of law: pacta sunt servanda, but requested the termination of the contract by failure to adverse, with the return of payment as compensation for said breach and satisfied.
Unless mutual agreement of the parties, the breach of contract sinal-lagmàtic for breach of a party, always has jurisdiction to decide. Resolved to request the declaration referred to the purchase agreement, Mr.. JGV claims: the ground surface has been promised to sell after the signature was always lower than that indicated by the seller, the proposed construction of a house is based on a topographical study of made unilaterally by land ownership, which has no validity in not having the consent of the landowners and col.lindants which is based on a presumed area of 1238 m² which is not real, that this would necessarily authorizations buildings granted by the Hon. Joint Scald and by the Government remained without effect, granting the deed was not carried out within the deadline set in the private purchase contract. To oppose the pretensions of Mr.. JGV, Mr. RCB and RGM acknowledge that on the question of the surface of the plot, is not due to a breach of contract, and secondly, in relation to the contract signed by the parties not from the exercise the action of sanitation for hidden defects in their mode of action redhibitòria, the only condition precedent on the revalidation of authorizations imposed by the contract was fulfilled by the seller, which permits to derive resolutions strong administrative and as such are fully valid and enforceable, that on 11 January 2008 Messrs. RCB RGM and they go to the Notary for the execution of the deed of sale and who refused to sign that deed was Mr.. JGV. As part of this injunction should not terminate the trial by opposing parties on the surface of the subject parcel of private purchase contract, and breach of contract the defendants Messrs. RCB and RGM. However, when dealing with complex litigation, in which each party claims convincing arguments, the right to credit Mr.. JGV not appear obvious, but on the contrary, there is serious doubt about which the Court alone can decide on the day will pass its judgment on the merits of the matter.
IV. - In consequence, the plaintiff did not establish the existence of a lien right looks significant enough to be considered the appeal of Mr. RCB and RGM and not give rise to the injunction requested by Mr.. JGV lack of Prima facie case. "
Aunt of the Civil Division of the Superior Court dated 27/5/10, JL speaker. Vuillemin, Aunt 38/10.
Tags: embargo
