I have the honor to inclose herewith a copy of the correspondence that
has passed between this legation and the foreign office on the subject,
consisting of may note of the 13th of October, 1905, to the minister of
foreign affairs, his excellency’s reply of the 30th of November, 1905,
with translation, and also a statement in French text of the code of
procedure, with translation; a copy of an article from the bankruptcy
law, with translation; a copy of the royal order of December 13, 1874,
with translation; and further, in Dutch text, three royal orders and the
law of December, 1897, relating to the subject.
It will be observed from inclosure No. 1 that the Netherlands code does
contain provisions for imprisonment for debt, and, moreover, that clause
10 of article 585 states that all foreigners with no fixed domicile in
the country are liable to arrest for debt contracted against a
native.
[Inclosure
1.—Translation.]
Code of Civil Procedure in Arrest for
Debt.
Article 585.
Arrest for debt only occurs in cases determined by this or the
following article:
- 1.
- For stellion defined in article 711.
- 2.
- In cases of restoration, for the restitution of fruit
which has been gathered during illegal possession and for
the payment of damages granted to the owner.
- 3.
- For necessary lodgments.
- 4.
- For the recovery of money intrusted to public officers
appointed for that purpose.
- 5.
- For the production of matters intrusted to deposits,
commissaries, and other trustees.
- 6.
- In the case of public officers, for the production of
their minutes, when legally enjoined.
- 7.
- In the case of notaries, sheriffs, and other public
officers for the restitution of titles intrusted to them,
and moneys received by them for their clients in consequence
of their avocations.
- 8.
- In cases of delinquencyb or
illegal action, for damages adjudged in favor of the injured
party and exceeding the sum of 150 florins.
- 9.
- For balance of accounts due by guardians, trustees, legal
trust companies, and responsible administrators of townships
and other public establishments; and for all restitution due
owing to said accounts.
- 10.
- In the case of all foreigners with no fixed domicile in
the Kingdom for any debt contracted against a native.
- 11.
- In all other cases specifically determined by law.
Arrest for debt * * * can only be executed in the case of married or
unmarried women in the cases foreseen in the above-mentioned Nos. 1,
2, 3, 5, 8, and 10.
Arrest for debt in civil cases can not be executed against people who
have completed their seventieth year in the cases foreseen in the
above Nos. 1, 4, 5, 6, 7, 8, 9, and 10.
Article 586.
Arrest for debt takes place—
1. In the case of all merchants for debts of commerce contracted even
against nonmerchants.
Bills payable to order, assignments, and other bills subscribed to by
a merchant will be considered as executed in pursuance of this
article when no other cause has been stated.
2. In the case of all persons who sign bills of exchange as drawers,
recipients, or indorsers, or who give a guaranty for the same.
3. In the case of all persons not merchants who have indorsed bills
payable to order, assignments, or bills of exchange regarded as
simple acknowledgments according to article 102 of the commercial
code, but only when persons not merchants have bound themselves by
acts of commerce.
4. In the case of persons without distinction for the execution of
maritime contracts or contracts which the law assimilates to
same.
The provisions of Nos. 2, 3, and 4 of this article are not applicable
to married or unmarried women who are not public merchants.
Article 587.
In no case is arrest for debt admissible against the children and the
descendants from their parents or relations in direct line.
Article 588.
With the exception of the cases prescribed by the two preceding
articles or which might be prescribed hereafter, arrest for debt can
not be executed; all contrary stipulations, even if made in a
foreign country, are naturally void.
Article 589.
Arrest for debt can only be executed as a result of a judgment which
has so pronounced.
Article 590.
Attachment, appeal for reversal of judgment, does not suspend
execution of arrest for debt pronounced by judgment of temporary
execution, while giving, in that case, security for the damages to
which the plaintiff might be condemned.
Article 591.
No person can be arrested for debt for the same debt for a period of
more than five years.
Except in the cases stated in the last paragraph of article 585 (of
this law) arrest for debt in civil cases ceases as soon as the
debtor has completed his seventieth year.
Article 592.
The execution of arrest for debt obliges the creditor to furnish
every thirty days and to deposit in advance a sum necessary for the
food of the debtor, according to a tariff fixed by the king.
In default of the fulfillment of the obligation before the
thirty-first day, the debtor can ask for his release, adding to his
petition the nondelivery of victuals, presented by the gaoler.
[Page 1175]
If, however, the creditor, late in the delivery of victuals, makes
delivery before the debtor has formulated his petition for release,
the petition will no longer be acceptable.
Article 593.
The debtor can be enjoined by persons who have equally the right to
demand his arrest for debt.
Any person who is arrested for delinquencya
can also be enjoined, and he is detained by virtue of the
injunction, even though his release has been adjudged in the penal
case, or the time of his detention has not expired.
Article 594.
The nullity of imprisonment, for whatever cause adjudged, does not
carry with it the nullity of injunction.
Article 595.
The enjoiner is obliged, if requested, to contribute to the payment
of the victuals of the imprisoned debtor in equal payments, and in
that case the moneys used for victuals can only, with his consent,
be withdrawn by the person responsible for the arrest for debt.
This request can be formulated before the tribunal of the district in
which the arrest for debt has been executed.
Article 596.
The debtor legally imprisoned can be released—
1. By the consent of the creditor who has had him imprisoned, or the
en-joiners, if there are any.
The consent to the release of the debtor can be given either before a
notary or in the gaol book.
2. By the payment or deposit of the sum due to the creditor as well
as the enjoiners, for the interest due, for the costs incurred for
the imprisonment, or sums deposited for victuals.
3. By the transfer of the property, either voluntary or compulsory by
law.
Article 597.
The debtor whose imprisonment is declared void, or who is released
owing to default of deposit for victuals, can only be arrested for
the same debt one day, at least, after his release.
Article 598.
The execution of arrest for debt neither prevents nor suspends
procedure or attachment against property.
Equally the confiscation of property neither prevents nor suspends
the execution of arrest for debt.
Re: Imprisonment.
Article 599.
Arrest for debt can only be put into execution one day after the
pronouncing of judgment ordering that arrest. However the president
of the tribunal of the district can, if necessary, authorize the
immediate execution of arrest for debt.
The legal notice must contain order for payment and election of
domicile in the district in which the court is sitting which has
pronounced the judgment.
Article 600.
A debtor can not be arrested—
- 1.
- In consecrated buildings during service.
- 2.
- In the building or during the session of the authorities
assigned thereto.
- 3.
- In the stock exchange during office hours.
- 4.
- In his residence or in a private house not open to the
public, unless the sheriff’s officer is accompanied by the
district judge in the district where he has his domicile,
and in other districts by the chief of the local
administration or by his substitute.
- 5.
- During the period of safe conduct, which same is
determined by the judge who has granted it in order to make
the debtor appear before him.
Article 601.
Arrest for debt can be executed on Sunday or even at hours at which
otherwise writs can not be served in conformity to article 15 of the
code.
Article 602.
The proces-verbal of imprisonment contains besides the ordinary
formalities for writs—
- 1.
- Repeated order to pay.
- 2.
- Proof of domicile in the district in which the debtor is
held.
- 3.
- The sheriff must be assisted by two witnesses.
Article 603.
In case of resistance the sheriff’s officer can have the exits
guarded to prevent escape and have recourse to armed force; and if
such be the case, without prejudice to penal procedure.
Article 604.
If the debtor objects to arrest and demands that it be referred to
the judge, he will be immediately taken before the president of the
district court of the place in which the arrest has taken place and
he will issue a provisional decree.
The order on application will be recorded on the proces-verbal of the
sheriff’s officer and will be carried out at once.
Article 605.
If the debtor makes no objection, or if his objection is rejected, he
will be taken to the prison of the place, or if there is none to the
prison of the nearest place. The sheriff’s officer will immediately
register in the gaol book, which he will sign. Any sheriff’s officer
or other person who receives or holds the debtor in a place of
detention not legally designated as such will be proceeded against
by the chief warden.
Article 606.
The gaol register shall state—
- 1.
- The judgment which orders the arrest for debt.
- 2.
- Name, Christian name, and domicile of the creditor.
- 3.
- The domicile named in the district in which the debtor is
held.
- 4.
- The names and residence of the imprisoned debtor.
- 5.
- The deposit for at least thirty days victuals.
- 6.
- Finally, that copies of the act of consignment and
proces-verbal of imprisonment have been left to the
imprisoned debtor in person, which same must be done at
once.
Article 607.
The guard or gaoler will note in his register the act of consignment
and the extract of the judgment which authorizes the arrest and the
entire deposit.
Should the sheriff’s officer omit to state the judgment, the gaoler
will refuse to receive the debtor and imprison him.
Article 608.
The formalities prescribed for the imprisonment will be observed for
the detention; however, the sheriff’s officer will not be assisted
by witnesses and the detainer will not have to make deposit for
victuals if same have been deposited for.
[Page 1177]
Article 609.
In case No. 2 of article 596 the deposit of the debt will be made in
the hands of the gaoler without necessity of special order.
If the gaoler refuses, he will be subpoenaed without delay before the
court of the place in virtue of permission.
Article 610.
If release is ordered because of failure of deposit for victuals, the
creditor can only have the debtor rearrested by reimbursing the
debtor for expenses incurred in obtaining release, or in the case of
his refusal by depositing same in the hands of the gaoler and
depositing in advance sufficient for six months’ victuals there will
be no necessity to go through the formalities attendant on
imprisonment again.
Article 611.
If the above-stated formalities have not been observed, the debtor
can ask that the imprisonment be declared void, and the request, as
well as the one for release, will be brought before the tribunal of
the district on the jurisdiction of which he is detained.
The demand for nullity based on the question of funds will be taken
before the court where the judgment has been carried into
execution.
The assignment can be made with little delay, and in the domicile
chosen by the imprisoned the case will be summarily judged, and the
creditor can be condemned to pay damages, if there be any cause
therefor.
Article 768.
Foreigners who have no fixed domicile in the Kingdom can, without
there being any judgment against them, be primarily arrested on the
order of the president of the district court for outstanding or
demonstrable debts contracted against inhabitants of the Kingdom.
The formalities prescribed by the second section of the fifth part
of the second volume of the code will be applicable to the arrest
for debt.
