A notarial deed with consent to direct enforcement enables a creditor to recover a debt without prior court proceedings. However, an inappropriately worded condition may nullify this advantage. This is highlighted in a ruling of the Supreme Court dated 9 June 2026, case no. 20 Cdo 1262/2026.

What happened?

In the case in question, the guarantor undertook to settle the debt within five working days of receiving a written demand from the creditor. The notarial deed also stipulated that delivery of the demand must be certified by a public instrument showing the date of delivery and the due date of the debt.

The creditor submitted the demand for payment, proof of posting, tracking information for the consignment and another notarial deed. However, the courts concluded that delivery of this specific demand to the obligated party had not been proved by evidence meeting the applicable formal requirements. The enforcement proceedings were therefore discontinued.

Why was even the additional notarial deed insufficient?

The key point was that the additional notarial deed was drawn up only after enforcement proceedings had commenced. The notary merely certified the existence of the documents submitted. However, he was not present when the demand was placed in an envelope, the consignment was taken to the post office and handed over for dispatch. The deed therefore did not prove that the specific demand had actually been sent and delivered to the obligated party. The documents themselves cannot be accorded greater probative value simply because the notary subsequently confirmed their existence.

Under Section 43 of the Enforcement Code, the creditor must substantiate fulfilment of the condition for enforceability by means of a document meeting the statutory evidential requirements. It is not sufficient for the circumstances of delivery to be merely probable or to be inferred from individual private documents.

What should one bear in mind in practice?

When drawing up a notarial deed, it is necessary to consider not only the due date of the debt, but also how any conditions for enforceability can be proven at a later date. Where possible, we recommend agreeing on the due date in a simple and objective manner, for example by specifying a fixed date. If a demand from the creditor is necessary, it is advisable to establish in advance the method of its delivery and how the contents of the consignment will be proven.

In conclusion, it can be stated that a notarial deed is intended to facilitate the recovery of a debt. However, any additional condition whose fulfilment cannot be reliably proven may, on the contrary, prevent the successful conduct of enforcement proceedings.

This article was prepared for you by Mgr. Vladimír Dušek and JUDr. Ing. Eva Radová