MOSCOW LOVE OF CITIZEN KOŚCIUSZKO

Need is the mother of ‘invention’ (including in the courtroom).

I will conclude with one of the more unusual cases I have come across. Unusual not because of any particularly complicated legal problem that needed solving – for there was none. It was unusual because, frankly speaking, I would never have come up with such an… unusual construction of the claim as that of my client’s ex-husband.

Some time ago, I was approached by Svetlana. Never mind the name – as you can guess from the name, Svetlana comes from Russia. There she met a Polish citizen, whom she married at the local (Russian) registry office. After some time, her husband and she came to Poland, was awarded Polish citizenship and settled in Poland permanently. A little later, the couple divorced, but the client nevertheless kept her married name. At the same time, she lent a fairly substantial monies to her former husband. As he defaulted, Svetlana applied to the local court for repayment. The defendant attempted to argue that he had not received the agreed amount of the loan and that the claim for repayment was therefore unfounded. This was not a successful defence – the court pointed out that the loan agreement is consensual in nature, not real – in other words, the plea raised does not bar or limit the claim asserted.

After Svetlana had legally won the case and enforcement of the debt had been initiated, it seemed that her former spouse no longer had any cards left in hand. However, the opponent – at least in his view – retained not only his cards, but even an ace up his sleeve. In fact, he brought an anti-enforcement (opposition) action against Svetlana.

An anti-enforcement (opposition) action is a means of defence of the debtor against the creditor enforcing an awarded benefit, as described in the wording of Article 840 of the Code of Civil Procedure (C.C.P.). To be effective, it must be based on strictly defined grounds. These include denial of the grounds for granting an enforceability clause, extinguishment of the claim (for example, as a result of voluntary payment made after the judgment has been issued, when a dishonest creditor attempts to enforce an adjudged but extinguished claim ‘again’ on the basis of the judgment) or ‘inability to enforce the claim’. At first – and indeed second, third and subsequent – ‘glance’, neither of these grounds was present. However, the opponent pointed to the premises of “denial of the event on the basis of which the enforcement clause was granted” and “inability to enforce the claim”. And he supported them in a … unusual manner. He pointed out that the benefit had been awarded in favour of a non-existent person, as a consequence of which a completely different person than the one indicated in the judgment (sic!) is trying to enforce it without success.

How come? Well, by marrying her opponent, Svetlana took his surname. As this took place in a ceremony held in a Russian registry office, the feminine form of the client’s new surname was determined according to the rules of the Russian language. For example: if Thaddeus Kosciuszko had married a Russian woman years ago during his captivity in St Petersburg, the Tsarist official would certainly have written down her new personal name not as “Svetlana Kosciuszko”, but according to the rules of Pushkin’s and Tolstoy’s language: “Svetlana Kosciuszkova”. I am not a linguist, but this is reminiscent of the tendency in Czech to give a feminine ending to -ova even in cases where the rules of Polish do not require such an “operation”.

As a consequence of the above, Svetlana used her newly chosen surname in Polish (“***”) and Russian (“***-ova”) forms in parallel (also in Poland).
To make things more interesting: those were not yet the days when it became a procedural requirement to provide the individual (unique) PESEL number of an individual – a party to civil proceedings.

Although, as the Russians say, ” God loves a trier”, and “Third time’s a charm” in English-speaking countries, it is undisputed that the former marriage consisted of two, not three, persons. So was the circle of parties to the loan agreement and the lawsuit, validly decided in favour of Svetlana.
In the end, the anti-enforcement action, unusual – as it was based on such ‘breakneck’ grounds – was legally dismissed.

I, on the other hand, to this day cannot determine what caused my greater admiration. Was it the angelic calm of Svetlana listening at the trial to her ex-spouse’s arguments about her non-existence? Or the procedural creativity of her ex-spouse?