Officiële Toelichting

P-15A Default judgment permits termination of a dispute if there is no contest. It is a mechanism for compelling a party to acknowledge the court's authority. For example, if the court lacked authority to enter a default judgment, a defendant could avoid liability simply by ignoring the proceeding and later disputing the validity of the judgment. A plaintiff's abandonment of prosecution of the proceeding is, in common-law terminology, usually referred to as ‘failure to prosecute’ and results in ‘involuntary dismissal.’ It is the equivalent of a default. See Principles 11.4 and 17.3.

P-15B A party who appears after the time prescribed, but before judgment, may be permitted to enter a defense upon offering reasonable excuse, but the court may order compensation for costs resulting to the opposing party. In making its determination, the court should consider the reason why the party did not answer or did not proceed after having answered. For example, a party may have failed to answer because that party did not receive actual notice, or because the party was obliged by his or her national law not to appear by reason of hostility between the countries.

P-15C Reasonable care should be exercised before entering a default judgment because notice may not have been given to a defendant, or the defendant may have been confused about the need to respond. Forum procedure in many systems requires that, after a defendant has failed to respond, an additional notice be given to the defendant of the court's intention to enter default judgment.

P-15D The decision about whether the claim is reasonably supported by evidence and legally justified under Principle 15.3.3 does not require a full inquiry on the merits of the case. The judge must only determine whether the default judgment is consistent with the available facts or evidence and is legally warranted. For that decision, the judge must analyze critically the evidence supporting the statement of claims. The judge may request production of more evidence or schedule an evidentiary hearing.

P-15E Principle 15.4 limits a default judgment to the amount and kind demanded in the statement of claim. In civil-law systems, a restriction in a default judgment to the amount claimed in a complaint merely repeats a general restriction applicable even in contested cases (ultra petita or extra petita prohibition). In common-law systems, no such restriction applies in contested cases, but the restriction on default judgments is a generally recognized rule. The restriction permits a defendant to avoid the cost of defense without the risk of greater liability than demanded in the complaint.

P-15F Notice of a default judgment or a dismissal must be promptly given to the parties, according to Principle 5.3. If the requirements for a default judgment are not complied with, an aggrieved party may appeal or seek to set aside the judgment, according to the law of the forum. Every system has a procedure for invalidating a default judgment obtained without compliance with the rules governing default. In some systems, including most common-law systems, the procedure is initially pursued in the first-instance court, and in other systems, including some civil-law systems, it is through an appeal. This Principle defers to forum law.

P-15G The party who has defaulted should be permitted, within the limit of a reasonable time, to present evidence that the notice was materially deficient or other proper excuse.