The obligation to the proportionality of the distraint

The Supreme Court has recently issued a judgement (No 21 Cdo 855/2014), in which it expressed its opinion to the principle of the proportionality of the distraint. Abuse of this principle means the abuse of the law.

According to this principle, the distrainer is obliged to prefer such way of the distraint, which is not obviously inappropriate, particularly in regard to the disproportion between the amount of the debt of the debtor and the price of the item, which will be auctioned to fulfil the debt.

The Supreme Court has decided that following situation can be considered as unlawful due to its inconsistency with the principle of proportionality:

-       the distraint, where a certain sum of money has to be paid, was not primarily executed by so called priority methods of the distraint (for example by the deduction from wages and other income);

-       the distrainer has auctioned an immovable property, which price was much higher than the amount of the outstanding debt and

-       the distrainer did not cancel the auction although the debtor the day before the auction reimbursed the debt and informed the distrainer about the payment.