Antwerp Court of Appeal decides that the Procedural Code is applicable on lawsuits against dead people!

Though Belgian law only knows proceedings in personam and does not know proceedings in rem, it turns out that such proceedings are nevertheless possible, as long as  the judge and the plaintiff are unaware that the defendant is an object!

This became clear from an interim judgment of the Court of Appeal of Antwerp of 12 December 2017.

The facts are easy: a Belgian company sued its previous director for payment of the balance of his current account. However, at the day the writ of summons was served (on a fictitious domicile in Belgium) the director concerned, an Ukrainian citizen, had already died several weeks earlier at his home in Ukraine.

The Commercial Court of Antwerp, unaware that the defendant had deceased long before the writ was served, rendered a judgment by default condemning the defendant. This judgment was then executed on a Belgian bank account which was still on the name of the deceased, while the heirs were unaware of the existence of this account and the bank was unaware of its client’s decease.

When the heirs became aware of the existence of the bank account and of the execution of the judgment, they sued the company in tort, claiming damages for wrongfully obtaining and wrongfully enforcing said judgment.

The Antwerp Court of Appeal decided in an interim judgment that, since it was not proven that the plaintiff was aware of the death of the defendant at the time of the service of the writ, the judgment was not fraudulently obtained and hence it qualifies as a valid judgment within the meaning of the Belgian Procedural Code. As a consequence all procedural faults made before this judgment was  issued cannot be considered as a tort as long as this judgment has not been annulled on appeal.

So if you think that a person can no longer affect the rights and duties of the heirs after his death, the Belgian legal system teaches otherwise!