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Glossary entry

French term or phrase:

défenses à exécuter

English translation:

[request to] stay [enforcement/execution] of the judgment

Added to glossary by Richard Vranch
Jul 23, 2019 10:34
4 yrs ago
6 viewers *
French term

défenses à exécuter

French to English Law/Patents Law (general)
‘’Sans procéder à l’examen des moyens des parties dont certains frisent le fond, la Cour dira recevable et fondée la requête en defense...

This is an appeals procedure concerning "défenses à executer"...

What is the common equivalent in US English?
Proposed translations (English)
4 [request to] stay [enforcement/execution] of the judgment
3 (US) motions to stay (proceedings for) enforcement; (E&W) applications to stay execution
References
a ref. fwiw/hth
Change log

Jul 24, 2019 00:06: Yolanda Broad changed "Term asked" from "défenses à executer " to "défenses à exécuter "

Discussion

Eliza Hall Jul 24, 2019:
PS re not "dilatory plea" Adrian, the term you mentioned in your comment to Writeaway's reference ("dilatory plea in abatement") is not to my knowledge used anymore -- it's a common-law term for one of the many procedural mechanisms that have now been superseded by state and federal rules of civil procedure -- and when it did exist, it was not used in the context of appeals:

"In common-law-pleading, [a dilatory plea in abatement was] any of several types of defenses that could be asserted against a plaintiff's Cause of Action, delaying the time when the court would begin consideration of the actual facts in the case."
https://legal-dictionary.thefreedictionary.com/Dilatory Plea

So it was something that would be filed with the trial court to attempt to delay the trial court's hearing of the plaintiff's case.
Eliza Hall Jul 24, 2019:
[Deleted bc posted twice by accident]
Eliza Hall Jul 24, 2019:
Not dilatory @ Adrian MM: It's by definition not dilatory if the Cour de cassation, or whatever appeals court this is, pronounced it recevable. Or to put it another way, it is indeed intended to cause delay in execution of the judgment below, but such delay is entirely proper, and thus wouldn't be characterized as dilatory (since that word has a negative connotation).

Preventing Party A from executing a judgment while Party B is appealing that judgment generally is proper; some mechanism for doing that exists in every modern legal system I'm aware of. If there were no arguably legitimate grounds for the appeal, the court would have declared the request to suspend enforcement irrecevable.

Richard, because legal procedures vary from one system to another, it can be misleading to use a preexisting term to translate a term from another language/legal system. The US or UK equivalent will have slightly different rules, etc., than the FR. So I would translate the meaning in legalistic terms (e.g., "the request to suspend execution of judgment") rather than looking for the exact term used in US or UK legal procedure.
Adrian MM. Jul 23, 2019:
Stay of enforcement vs. a dilatory plea You, Richard, are welcome if alluding to my idea of a motion vs. a defense. I was expecting some informed US American Fed. law debate over whether this is - or is not a - species of dilatory plea in abatement 'of enforcement', but I live 'in spe'.
Richard Vranch (asker) Jul 23, 2019:
Thanks! Thanks for the suggesistions, they are all great. It’s a sort of motion to suspend enforcement so all these options fit. Thanks!
Marco Solinas Jul 23, 2019:
Stay of execution From the reference in my earlier post (Wikipedia): "A stay of execution is a court order to temporarily suspend the execution of a court judgment or other court order. The word "execution" does not necessarily mean the death penalty (although it can); it refers to the imposition of whatever judgment is being stayed. It is similar to an injunction."
writeaway Jul 23, 2019:
I agree with Eliza Hall's suggestion It fits the context. I don't think there is any death penalty involved here. Unless of course the actual context shows that there is.
Eliza Hall Jul 23, 2019:
Sounds like a stay pending appeal This sounds like a stay pending appeal. In other words, a request that the judgment of the court below not be enforced yet because that judgment is being appealed.

To confirm, what is the actual issue being appealed? It doesn't make sense for the stay alone to be the subject of the appeal, because by definition such stays are temporary -- if the appealing party loses the appeal, the judgment becomes enforceable -- and there's no reason to grant such a stay at all unless there is some underlying argument as to why the judgment of the court below was wrong.
Marco Solinas Jul 23, 2019:
Stay of execution "stay of execution" may work here. See https://en.wikipedia.org/wiki/Stay_of_execution
Richard Vranch (asker) Jul 23, 2019:
"Limitation of execution" Would limitation of execution work?
Richard Vranch (asker) Jul 23, 2019:
Ref Thanks for the reference, it's very useful. I understand the meaning of the term, I was wondering if there is a simple equivalent in US English...?
writeaway Jul 23, 2019:
Thanks The explanation in my ref applies in that case.
Richard Vranch (asker) Jul 23, 2019:
‘’Sans procéder à l’examen des moyens des parties dont certains frisent le fond, la Cour dira recevable et fondée la requête en defense à exécuter “
Richard Vranch (asker) Jul 23, 2019:
DRC Congo
writeaway Jul 23, 2019:
Please post at least a sentence showing the term being asked. What country is this from?

Proposed translations

1 day 2 hrs
Selected

[request to] stay [enforcement/execution] of the judgment

For context, this is from an appeals court opinion considering an appeal, and the term means a prohibition on enforcement of the judgment below (i.e. the judgment of the trial court, which is the subject of the appeal). The appeals court has declared the request for a prohibition on enforcement "recevable" (i.e. it can be heard, it can proceed).

It is normal in every modern legal system I'm aware of for there to be a mechanism by which Party A, having lost at trial, can prevent Party B from enforcing the judgment for the time necessary to enable Party A to appeal that judgment.

Common sense tells you why: if Party B wins a judgment that, say, a certain piece of real estate belongs to Party B (or insert any other type of civil judgment here), what happens if Party B gets title to the land (or whatever), then sells it or builds something on it while Party A is appealing, and then Party A wins the appeal? It is much harder to put that situation right than it is to just keep the status quo in place while Party A appeals.

Every English-speaking legal system has its own term for the mechanism Party A can use to maintain the status quo pending appeal, and its own rules for how that works (e.g. does Party A need to pay an appeal bond or provide other security/collateral in order to get a stay).

Because preexisting legal terms have very specific meanings within their legal systems, it can be misleading to translate a term from, say, FR into the roughly equivalent preexisting US or UK legal term. (Can be, not necessarily is). The preexisting EN term has all sorts of ramifications and connotations to an EN-speaking lawyer that may be quite different than the ramifications and connotations of the FR term.

So this is a situation where I wouldn't try to find the exact term used in an EN jurisdiction -- all the more so because there are so many terms (US federal, all 50 US states, England/Wales, Scotland, Canada, etc. may all have their own somewhat different preexisting terms). I would suggest just using legalistic words (e.g. "stay") and coming up with a term that conveys the meaning but is not a preexisting US/UK legal term.

Hence: request to stay enforcement [or execution] of the judgment [or judgement if you're translating for a UK audience] below.

--------------------------------------------------
Note added at 1 day 2 hrs (2019-07-24 13:33:38 GMT)
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PS: I'm calling this a request rather than a motion because we have no basis for thinking that this request was made in a motion. It sounds to me like it was made in the appeal itself. Using a broad term like "request" covers all procedural mechanisms, so we don't have to figure out exactly how the request for a stay was filed before we can translate it.
Peer comment(s):
neutral Adrian MM. : Your answer, adopting my motion idea as a request, is no different in substance to my answer.
6 hrs
They're translations of the same thing, so naturally they mean substantially the same thing. It's the wording that's different, esp. the general "request" rather than specific "motion." Also, it's not about staying proceedings but staying enforcement.
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4 KudoZ points awarded for this answer.
5 hrs
French term (edited): défenses à executer

(US) motions to stay (proceedings for) enforcement; (E&W) applications to stay execution

What the DRC ref. doesn't explain is how the word parses, namely whether these are defens/ces to be raised or asserted or are objections to levy of execution and having the effect of staying such. NB execution is Scotland is called dilgence.

Compare US & Can. (dilatory) pleas in abatement - not going to the merits, but constituting a 'defense which simply delays or defeats the action' (Barron's US law dictionary) and Scots law 'dliatory defences' that hold up trial.

In the USA, pace Eliza H., see Fed. R. Civil Procedure62.
Example sentence:

ORDER granting 88 Motion to Stay execution of this Court's money judgment pending appeal; granting 92 Home Depot's Motion for approval of its supersedeas bond.

US: plea in Abatement. In Common-Law Pleading, a response by the defendant that does not dispute the plaintiff's claim but objects to its form or the time or place where it is asserted.

Reference:

http://www.law.cornell.edu/rules/frcp/rule_62

Peer comment(s):
neutral writeaway : see dbox too
7 hrs
I have and no one else raises the US dilatory plea point.
neutral Eliza Hall : FRCP 62 contains the terminology that's now used. "Dilatory plea" isn't used. Also, I don't see a basis for thinking this request was made by filing a motion, so I wouldn't use "motion" in the translation.
21 hrs
Agree about the motion, but that's why the recent obsolescence of a term like dilatory plea (that also still exists in the UK > *dilatory defence* in Scotland) is no reason for shirking an approximation to the 'defensive' source text.
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Reference comments

29 mins
Reference:

a ref. fwiw/hth

LES DEFENSES A EXECUTER :
Portée et procédure applicable
Par Jean-Didier BAKALA DIBANSILA
Avocat, Assistant et Chercheur à l’Université Protestante au Congo à Kinshasa

Les défenses à exécuter constitue l’une des limites à la mise en œuvre de l’exécution forcée, en ce qu’elles ont pour effet de suspendre l’exécution d’un jugement exécutoire par provision rendu en violation des conditions légales y relatives.
Bien qu’ayant une incidence sur l’exécution forcée, les défenses à exécuter nesont pas règlementées par l’acte uniforme portant organisation des procédures simplifiées de recouvrement et des voies d’exécution, texte principal en matière de recouvrement des créances dans l’espace Ohada. C’est donc dire que les défenses à exécuter relèvent du droit national de chaque Etat partie à l’OHADA.
http://www.rmkassocies.org/UniFichiers/Public/Pdf/gzqABd5820...
Peer comments on this reference comment:
neutral Adrian MM. : doesn't explain how the words are put together: defenc/ses to execution or those to be put forward.//Then you and the others can deal with the so far unaddressed US procedural point of a 'dilatory plea in abatement (of enforcement)'
15 hrs
it helped and colleagues worked it out in the dbox, including asker
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