The expiration of the executive action does not prevent the exercise of the objective right by declarative means as long as it is not prescribed.

The expiration of the executive action does not prevent the exercise of the objective right by declarative means as long as it is not prescribed.

16/03/2021 |

EXECUTIVE ACTION and DECLARATIVE ACTION.

Article 518 of the LEC establishes that "the executive action based on a Sentence, in a resolution of the Court or of the Judicial Secretary that approves a judicial transaction or an agreement reached in the process, in an arbitration resolution or in a mediation agreement will expire if it is not interposed the corresponding executive demand within the five years following the firmness of the sentence or resolution.This period like any other of expiration implies that there is no possible interruption and cannot be confused with the prescription.

The executive route has some assessed causes of opposition according to article 556 and following of the LEC, so that the plaintiff when choosing the action limits the reasons for opposition, which in the case of the declarative route are open, since the recognized right in the title it is not extinguished.

Until Law 42/2015 that reforms the term for the exercise of personal obligations of article 1964 of the C.C. It was 15 years, so the declaratory action inherent to the objective right had a greater prescription. Hence, once the executive action has expired, we could go to the declarative way for the period provided for in said article. This is the case of bills of exchange or promissory notes that after a period of 3 years, could be claimed by the declarative route that had a longer term indicated.

However, with Law 42/2015 they have been made to coincide so that since 2020, the limitation period is also 5 years, which directly affects the limitation period of the declarative action, which is no longer 15 years, with what the terms of the executive and declarative action have been made coincide.