The judge in preliminary relief proceedings of the District Court of Almelo recently allowed the enforcement (execution) of a judgment obtained on appeal in a judgment dated 7 May.
After years of legal dispute, the client of Schelstraete was completely vindicated on appeal. The Court of Appeal was of the opinion that the client had validly invoked the annulment of a purchase agreement because the horse purchased was afflicted with a serious defect (in coordination of the hind legs), as a result of which the horse could not be used for dressage. The court ordered the seller to repay the purchase price of €55,000 and to pay damages. This amounted to more than €100,000. After payment, the seller was to collect the horse from the client and take possession of it.
However, the seller refused to make payment. This was because the horse had died of colic before the court made its final decision. The client assigned her claim by virtue of the judgment to a third party (assignment), who then proceeded to enforce it by means of seizures. The seller subsequently instituted summary proceedings against the client (and not against the enforcing third party). In these proceedings he claimed the suspension of enforcement.
The judge in preliminary relief proceedings saw no reason to suspend enforcement. The final judgment of the court of appeal was the starting point for the assessment. This judgment expressly established the seller’s payment obligations. This did not apply to a restitution obligation of the client. The judge in preliminary relief proceedings did not anticipate a possible legal remedy against the final judgment or the discussion in new proceedings about the death of the horse. The judge in preliminary relief proceedings was also of the opinion that the seller had summoned the wrong party. He should have summoned the enforcing third party.
The conclusion was that the seller had to fulfil his payment obligations.
The judgment of the court in preliminary relief proceedings has been published on rechtspraak.nl:
http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBOVE:2021:1937
The client was assisted by L.M. Schelstraete.