The interpretation of article 813 of the LEC.
It is well known that in judicial practice related to the summary proceedings, one of the issues that raises the most problems is determining which court is competent to hear the claim.
To clarify the issue, it is worth recalling that Article 813 of the LEC, which regulates jurisdiction in summary proceedings, literally states the following:
“The Court of First Instance of the debtor’s domicile or residence shall be exclusively competent for the summary proceedings, or, if these are not known, the Court of the place where the debtor may be found for the purposes of the payment demand by the Court, unless it is a claim for debt referred to in point 2 of section 2 of article 812, in which case the Court of the place where the property is located shall also be competent, at the choice of the applicant.”
From its reading it seems to follow that it establishes as exclusively competent to hear the summary proceedings the courts of the debtor's domicile since, only in the case of not knowing it, would it be authorized to go subsidiarily to the place where the debtor could be found for the purposes of the payment request.
Now, focusing on those cases where the debtor is a legal entity, the question arises of how the wording of article 813 of the Lec relates to article 51.1 of the same law, which regulates the general jurisdiction of legal entities.
The article reads as follows:
“Article 51 General jurisdiction of legal persons and entities without legal personality
1. Unless otherwise provided by law, legal entities will be sued in the place of their domicile.
They may also be sued in the place where the legal situation or relationship to which the litigation refers arose or is to take effect, provided that they have an establishment open to the public or an authorized representative to act on behalf of the entity in that place.”
As can be seen, in said article, despite considering that the domicile will be in the first instance the element that determines the territorial competence to hear any claim that is processed against a legal person, it is no less true that the second point of connection that the rule establishes “ place where the situation or legal relationship to which the litigation refers has arisen or must have effects (…) ” seems to be related to the first on a plane of alternativeness (the expression “ may also be sued ” is used ) and not of subsidiarity as in article 813.
And precisely regarding this issue, that is, territorial jurisdiction in summary proceedings brought against a legal entity and the interaction between the provisions contained in Articles 51.1 and 813 of the Spanish Civil Procedure Law, the Plenary of the Civil Chamber of the Supreme Court recently issued a ruling – on February 11, 2016 – in Order 745/2016 (Appeal 182/2015), resolving a negative question of territorial jurisdiction relating to summary proceedings brought against a commercial company, in which it literally established the following:
“This peculiar legal nature with which our legal system configures the summary proceedings, which avoids discussion in said procedure of issues that affect the substance of the controversy or the legal relationship that serves as the basis for the initial request - since if the debtor submits a written objection, the matter will be definitively resolved in the corresponding trial (art. 818.1 LEC) - determines the existence of a special regulation that governs the different aspects related to this procedure, which takes precedence over the general rules contained in the LEC.
(ii) Regarding territorial jurisdiction in summary proceedings, this is imperatively established by Article 813 of the Spanish Civil Procedure Law (LEC). The first and second paragraphs of this provision state that "the Court of First Instance of the debtor's domicile or residence shall have exclusive jurisdiction for summary proceedings, or, if these are unknown, the Court of the place where the debtor may be found for the purpose of the payment demand by the Court, unless it concerns the debt claim referred to in point 2 of section 2 of Article 812, in which case the Court of the place where the property is located shall also have jurisdiction, at the applicant's choice.".
In any case, the rules on express or tacit submission contained in section 2 of chapter II of Title II of Book I shall not apply ».
As a complement to the provisions of Article 813 of the Spanish Civil Procedure Law (LEC), when the debtor is a legal entity, Article 51.1 LEC provides in general that "(u)nless otherwise provided by law, legal entities shall be sued in the place of their registered office. They may also be sued in the place where the legal situation or relationship to which the litigation refers arose or is to take effect, provided that in that place they have an establishment open to the public or an authorized representative to act on behalf of the entity."» .
This rule does not undermine the purpose of Article 813.1 of the LEC, which is that jurisdiction to hear the summary proceedings corresponds to the place where the payment demand can be made.
Ordinarily it will be the debtor's domicile, but, in the case of a legal entity, it may be the establishment where it carries out its activity, provided that this activity has generated the credit that is the subject of the claim.
(…) However, in view of the procedure that is intended to be promoted, jurisdiction should be attributed to the court of the debtor's domicile or residence, without prejudice to the fact that, since the defendant is a legal entity, it may also be sued in the place where the relationship or legal situation to which the litigation refers arose or should have effects, provided that in this case it has an establishment open to the public or an authorized representative to act on behalf of the entity.”
Consequently, from the interpretation that the Supreme Court makes regarding the scope of article 813 of the LEC, it is concluded that the two connecting factors attributing territorial jurisdiction in summary proceedings –the debtor's domicile and the place where the debtor can be found for the purposes of payment demand–, when it is a legal entity, are not related on a subsidiary level, but on an alternative level, due to the integrative effect that entails the provisions of article 51.1 of the LEC.
Finally, and as the Supreme Court maintains, in accordance with Article 813 of the LEC, the jurisdiction to hear the summary proceedings will be that of the place where the payment request can be verified, which will ordinarily be the debtor's domicile, but in the case of legal persons it may also be the place where the litigious legal relationship was born, provided that, in turn, in that place the debtor had an establishment open to the public or an authorized representative to act on his behalf.
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A graduate in Law from the University of Barcelona and with a Master's degree in Business Law from the same university, he worked at the law firm Alonso-Cuevillas Advocats and later joined the Civil and Commercial Litigation department of the law firm Bufete Bueno Bartrina. He then joined the team at the firm Casamitjana-Cuyas-Morales, and subsequently continued his career at Bufete Herrera Advocats, in the Commercial and Litigation department. In November 2015, he joined aÀmbitJurídic i Econòmic, SLP, as a professional partner, to head the Commercial and Insolvency practice.
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