Article 261: Applying to withdraw or vary a measure

Décisions de la Cour suprême interprétant cette section

1. Arrêt de la Cour suprême n° 14206/2558 (2015)

   A third party served with an order of provisional attachment, who is not a party to the action, may apply to the court to have the order revoked under section 261, and section 261 paragraph one applies section 312 mutatis mutandis, so that the third party may dispute or deny the debt claimed against it. But section 312 sits in the chapter on execution, and the right is therefore subject to section 311 paragraph three, which allows the court to attach a claim whether or not the debtor claim against the third party is disputed, limited or conditional. A third party who says it has been directed to pay the money to a bank under an assignment cannot on that ground have the provisional attachment revoked or the money returned.

   On the plaintiff application for provisional measures before judgment, the first court attached the second defendant deposit account and the contract money the first defendant was to receive from the applicant, a government department that was not a party. The applicant asked for the attachment to be revoked and the money returned, saying the first defendant had assigned the debt to a bank and that it was obliged to pay the bank instead. The Supreme Court read that as an application by a third party served with an attachment under section 261, and accepted that section 261 paragraph one applies section 312, so such a third party may dispute or deny the debt claimed against it. But because section 312 belongs to the execution chapter, the right is subject to section 311 paragraph three, under which the court may attach a claim whether or not it is disputed, limited or conditional. The assignment argument therefore could not be received, and the applicant could not have the provisional attachment revoked or the money returned.

2. Arrêt de la Cour suprême n° 4426/2543 (2000)

   The court will vary or withdraw a provisional measure only where the defendant applies and shows that the measure under Section 254 lacks sufficient grounds or that there is other proper cause. A complaint that the plaintiff's suit is meritless or brought in bad faith is merely a challenge to the sufficiency of the evidence, not a ground under Section 261, paragraph three.

   The defendant sought to change the interim measure by arguing the plaintiff's claim was baseless and dishonest. The Supreme Court held that under Section 261, paragraph three, the court changes a provisional measure only if the defendant shows the Section 254 measure lacks sufficient grounds or there is other proper cause, and that the defendant's arguments were merely a challenge to the sufficiency of the plaintiff's evidence.

3. Arrêt de la Cour suprême n° 2624/2543 (2000)

   A third party who claims to be harmed by a temporary prohibition order must apply in the original case under Section 261, paragraph one, to have the order withdrawn. He cannot bring a separate new action seeking a declaration that the order has no effect.

   A third party who said it would be harmed by a temporary prohibition order in an earlier case filed a fresh lawsuit to declare the order ineffective. The Supreme Court held that the proper course was to apply in the original case under Section 261, paragraph one, and that a separate new action for that purpose was not permissible.

Curated decisions with case numbers verified against the Supreme Court database. English renderings are the firm's editorial translation for study.