Kuwait Court of Cassation principle number 410

Summary: - A coercive fine ordered by a judge. Its nature: an indirect means of threatening and compelling the debtor to perform in kind. It is not compensation for damage. The consequence thereof: in assessing what is awarded, the judge does not consider proportionality to the damage but considers what the judge deems sufficient to threaten the debtor, and may reconsider the award and order an increase in its amount. The condition thereof: if the judge considers that the award has not deterred the debtor from persisting in non-performance. The judgment imposing it. Its nature: an interim judgment that is not enforceable. The reason: it does not conclusively establish the existence of the debt, and the matter must be brought before the court again to determine the amount of final compensation due from the debtor as a result of non-performance or delay therein. Cessation of its reason for existence. Its condition: the debtor adopts a final position, either by performing or by persisting in non-performance. Its effect: the judge reconsiders the judgment to decide the merits. Performance by the debtor. Its import: only compensation for delay in performance is ordered against the debtor. The debtor’s persistence in non-performance: compensation for that must be ordered against the debtor. In both cases, the judge must take account of the damage sustained by the creditor and the obstinacy displayed by the debtor. Article 292, Civil Code. - The papers contain nothing indicating that the appellant obtained a final judgment for the compensation due to him for the first respondent’s failure to perform his obligation in kind ordered against him by the irrevocable judgment issued in the aforementioned action. Its import: enforcement against him pursuant to the coercive fine imposed on him therein is impermissible. Its effect: no account is taken of the appellant’s contention that the amount of that fine can be determined through the number of days of delay in performance. The reason: the judgment enforced is the judgment awarding final compensation for non-performance or delay therein, not the judgment imposing the coercive fine. The challenged judgment’s adherence to this view and its ruling that the coercive fine imposed by that judgment may not be enforced, on the basis that the judgment imposing it is interim and not enforceable, are correct. Rule: The provision of Article 292 of the Civil Code that “1- If performance of the obligation in kind is impossible or inappropriate unless carried out by the debtor personally, the creditor may request a judgment obliging the debtor to undertake such performance and to pay a coercive fine if he refrains from doing so. 2- If the court considers that the amount of the fine awarded is insufficient to compel the debtor to perform, it may increase the fine whenever it sees reason for an increase. 3- If performance in kind is effected, or the debtor persists in non-performance, the court shall determine the amount of compensation payable by the debtor for non-performance or delay therein, taking into account the damage sustained by the creditor and the obstinacy displayed by the debtor” indicates—as disclosed by the explanatory memorandum to the aforementioned Law—that a coercive fine ordered by a judge is not compensation for damage, but a means of threatening the debtor to compel him to perform. Accordingly, in assessing what is awarded, the judge does not consider proportionality to the damage but considers what the judge deems sufficient to threaten the debtor. Therefore, if the judge considers that the award has not deterred the debtor from persisting in non-performance, the judge may reconsider and increase the amount of the fine. So long as the fine is merely a threat to the debtor, the judgment imposing it is interim and not enforceable. Its reason for existence ceases if the debtor adopts a final position, either by performing or by persisting in non-performance; the judge then reconsiders the judgment to decide the merits. If the debtor has performed, the judge orders against him only compensation for delay in performance. If the debtor persists in non-performance, the judge awards compensation for non-performance. In both cases, the judge takes account of the damage sustained by the creditor, as well as any obstinacy displayed by the debtor. That being so, a coercive fine ordered by a judge is not compensation to the creditor for damage, but an indirect means of compelling the debtor to perform in kind. The judgment imposing it is interim and not enforceable, since it does not conclusively establish the existence of the debt, and the matter must be brought before the court again to determine the amount of final compensation due from the debtor as a result of non-performance or delay therein. The papers contained nothing indicating that the appellant had obtained the final judgment for the compensation due to him for the first respondent’s failure to perform his obligation in kind ordered against him by the irrevocable judgment issued in Case No. 1679 of 2006, Plenary Civil. Consequently, enforcement against him pursuant to the coercive fine imposed on him therein is impermissible. This is not altered by the appellant’s contention that the amount of that fine can be determined through the number of days of delay in performance, since the judgment awarding final compensation for non-performance or delay therein—and not the judgment imposing the coercive fine, as explained above—is the one pursuant to which enforcement takes place. As the challenged judgment adhered to this view and granted the first respondent his relief in the action, ruling that the coercive fine imposed on him by the aforementioned judgment could not be enforced, on the basis that the judgment imposing it was interim and not enforceable, it correctly applied the law. The challenge to it on the matters stated in the 2 grounds of challenge is unfounded and merits rejection.