Perspectives of Law and Public Administration (Mar 2023)
Moratory Damages and Compensatory Damages in the Context of the Return of Foreclosure
Abstract
The disposition of the return of the forced execution by the court, following the abolition of the enforcement title or the forced execution itself, leads to the creation of a new paradigm, in which the creditor of the forced execution, whose patrimony has increased, becomes the debtor of the obligation of restitution, to the debtor of the forced execution, and which in turn becomes the creditor of the restitution obligation. The natural consequence of the solution of admitting the return of enforced execution requires the restoration of the previous situation, which will be done in the register of the general provisions provided for in art. 1635-1649 of the Civil Code. The effective method of restoring the previous situation converges on the analysis of different civil law principles, with similar valences but different effects, especially the principle of restitutio in integrum and the principle of full repair of the damage, in the perimeter of good faith and bad faith of the debtor of the restitution obligation. In the context of the civil circuit, situations may arise, in which the main method of restitution of benefits, in kind, is no longer possible, so new practical difficulties arise in restoring the previous situation, in this framework, the incidence will be analyzed for interest - moratory damages and compensatory damages.
