Time: May 01, 2019
There is much discussion these days about debt claims and judgments, and creditors experiencing difficulty because debtors take so long to pay what they owe. Previously we have looked at, for example, how utilities and other services may be suspended for nonpayment of debt. Now let’s examine one of the most important and radical elements in the Saudi judicial system, namely the means of enforcement.
Enforcement mechanisms were created because they are necessary and important. They limit the ability of a debtor to constantly delay payment, and they allow creditors to obtain what they are owed. Judicial orders and judgments do more than confirm a creditor’s rights, they also extend to implementing them.
When is a debtor legally deemed to be a procrastinator? Five days after being notified of an execution order, or the date of its publication in a newspaper, a debtor who has not paid what they owe is officially in that category.
The regulator considers the threat of imprisonment to be an important means to recover a debt, since it puts more pressure on the debtor. In law, it is referred to as executive detention.
Obviously, this is a serious measure, and is not resorted to lightly. There must be clear proof and evidence against the debtor, and the creditor must take appropriate legal action. It must be clear that the debtor is able to pay what they owe but has failed to do so.
Imprisonment may be viewed as the easiest and most secure solution to a debt claim, but it is not always applicable. For example, executive detention is not appropriate if the debtor has sufficient assets that can be seized to pay the debt; in cases where a bank guarantee, or kafalah, has been provided; if insolvency is proved; or if a competent medical authority testifies that the debtor has a health condition that would be worsened by imprisonment.
Nevertheless, an imprisonment order is not subject to appeal.
The regulator also gives the enforcement judge the power to impose a fine of up to SR10,000 ($2,665) a day if the debtor fails to pay, to be deposited in the court account for each day the debtor is late. The judge may cancel the fine, in whole or in part of it, if the debtor settles.
This fine is not the same as compensation for the creditor, and does not diminish their claim. The law recognizes that the injured party has the right to initiate a lawsuit against the procrastinator to be compensated for damages.
It should be noted that these mechanisms apply not only to debt, but also to the implementation of all judicial orders — although it is in debt situations that most people will commonly encounter them.
Some of these measures are certainly severe, but they make a valuable contribution to ensuring that creditors receive their rightful due, and they reduce delays in debt repayments.
Dimah Talal Alsharif is a Saudi legal consultant, head of the health law department at the law firm of Majed Garoub and a member of the International Association of Lawyers. Twitter: @dimah_alsharif