Nejvyšší soud České republiky; 2014-08-26; 33 Cdo 4198/2013
Decision by national courts in the field of European Union law — ECLI:CZ:NS:2014:33.CDO.4198.2013.1
Date: 2014-08-26
Subject matter: Judicial cooperation in civil matters
Origin: Czechia

82014CZ0826(52)_ENG_SUMJURE
JURE summary
JURE summary
A company STAY ACTIVE INC. (hereinafter “the plaintiff”) with its registered office in the Seychelles, sued ‘J.M.’ (hereinafter “the defendant”) to pay default interest originating from a rental agreement, where J.M. stands as surety for I.R.
The Court of First Instance declared the jurisdiction of the Czech courts to be established on the basis of Article 2(1) of the Brussels I Regulation (2) and decided to rule in this case based on national legislation. According to Article 548 of the OZ (2), a creditor has the right to require the surety to discharge a debt if the debtor fails to discharge it within a reasonable time limit despite having been requested to do so by the creditor in writing. In this case, it was not sufficiently proved that the plaintiff had requested I.R. to discharge the debt. Therefore, the court held that the statutory presumption required to establish the duty of defendant, who stands as surety to discharge the debt instead of I.R. was not fulfilled.
The Court of Appeal changed the first instance decision and ordered the defendant to pay the plaintiff the sum, including default interests, enumerated by the court. The Court of Appeal based its decision on a new fact in the case: the action filled by the plaintiff against I.R. was delivered by hand to I.R. (after the Court of First Instance had made its decision) and such delivery must be regarded as a request to discharge the debt. The obligation to discharge the debt arose (both for I.R. and for J.M. as the surety) on the day following the day of such delivery.
The plaintiff lodged a cassation to the Nejvyšší soud (hereinafter “the Supreme Court”), appealing the determination of the day set as the beginning of the duty to discharge the debt, because it had an influence on the sum of the interests enumerated by the court.
According to the Supreme Court, the obligation of the surety to pay the interests could not be separated from the obligation to discharge the debt itself. The creditor is, generally, entitled to claim the interests together with the debt. If no special agreement regarding the deadline of the payment was negotiated, the debtor is obliged to discharge the debt on the day following the day when he was asked to do so. A default arises when the time predetermined to pay a financial obligation has expired. In such case, the debtor is obliged to pay the default interests too. The sum of the default interests to be paid has to be set according to the corresponding (Czech) governmental regulation. However, this regulation has been amended and several scenarios could be applied regarding the date relevant for the determination of the final sum. Generally, the day when the creditor defaulted is decisive for the enumerating of the sum of the default interests to be paid.
In the current case, it is evident that the defendant defaulted during a period for which the corresponding governmental regulation stipulates that the starting day for enumerating the sum of interest is the day when the creditor (I.R. and J. M. as her surety) had not paid the respective instalments. The opinion of the Court of Appeal that the decisive day is the one when the creditor was informed about the action filed against her was held erroneous. This day has importance only in relation to the right to claim the discharge of the debt, not in relation to the final sum of default interests.
Therefore, the Supreme Court declared the cassation appeal founded, annulled the decision of the Court of Appeal and returned the case to the Court of Appeal for further hearing.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.(2) Zákon č. 40/1964 Sb. Občanský zákoník (Civil Code).