Aansprakelijkheid na ten onrechte gelegd conservatoir beslag

Abstract

Someone who brings a law suit, alleging to have a claim against someone else, may ask permission the judge in preliminary relief to levy prejudgment attachment on assets of the other party. Such a preliminary relief increases chances of effective payment or surrender after winning the case. Should the attachor lose his case, the attachment will have been wrongly levied. The attachee may have suffered damages because of the attachment. The nature of the ‘strict liability’ for the damages raises questions and difficulties. Proceedings may take a long time. It is difficult to prove the attachment caused the damage. Question is whether and if so, how producing evidence might be made easier. When the attachor cannot pay damages, they attachee may try to hold others, e.g. attachee’s lawyer or directors of a company, liable. This arises additional complications. Any obligation to compensate damages via the attachor is questionable in case of contributory negligence, but also in case of absence of a substantive denial of the attechor’s claim. These and many other questions are being discussed, partly by analysing Belgian and German law. It is considered whether attechor’s and attechee’s positions are balanced.