Drawing up notarial deeds containing acknowledgement of debt performing a role of an enforcement order is in practice quite well established alternative to time-consuming and financially demanding litigation procedures. Especially banks and other financial institutions require for the provided credits and loans acknowledgement of their clients’ debts or obligations in a form of a deed executed by a notary public. However, not all notarial deeds of this kind can in fact be distrained.
In this respect, a decision of the Regional court in Banská Bystrica has become a breakthrough when elaborating the issue of validity of a legal act of the acknowledgment of debt in case it was performed on the same day as execution of the credit agreement/loan agreement itself.
In its argumentation, the court distinguishes between the acknowledgement of a debt in a loan agreement on the one side and the acknowledgement of an obligation in a credit agreement on the other side. A difference between them consists in the fact, that while a loan agreement is being a real agreement, arising upon the moment of its actual performance (e.g. provision of a loan, transferring a thing), a credit agreement is being considered executed already upon an effective conclusion thereof. Thus if no funds have yet been advanced under the loan agreement, there is no debt, which could possibly be acknowledged or ensured; Therefore such acknowledgement cannot be validly executed and such notarial deed would not represent a qualified enforcement order.
As regards credit agreements, the situation is quite different; It is possible and in compliance with the law to acknowledge an obligation in the form of deed having the effect of an enforcement order even when the performance under the agreement has not yet been realized. The validity of such acknowledgement of an obligation is however conditioned by a precise determination of the ensured obligation leaving no doubts as to what legal obligation has been assumed by the person undertaking the declaration in the notarial deed.
Source: Resolution of the Regional court in Banská Bystrica of 30 January 2013, file No.: 17CoE/214/2012