The legal action.
A legal action means the possibility of effectively asserting your substantive legal claims (subjective rights) against another person by bringing the matter before a judge or an arbitrator. It concerns the theoretical question of whether you can apply to a judge. To do so, you can take various legal steps as part of your proceedings. For example, you can set out your claims in advance in a petition or summons, or during the proceedings in written submissions.
A legal action is one of the basic concepts of procedural law. When you have a right (a substantive legal claim), that right would be of little practical use if you could not seek its enforcement before a court or arbitration institution. It may seem a straightforward concept, but it nevertheless causes confusion in legal scholarship. The legislator’s inconsistent use of terminology does not make matters any clearer. It therefore requires clarification.
The right of access to a judge.
Anyone who holds rights and obligations would have little use for those rights if no one had to take them into account. In a civilised society, self-help is prohibited, meaning that you may not take the law into your own hands or enforce your rights against others yourself. You will need the intervention of a judge or arbitrator.
The right of access to a judge is a fundamental right that also allows you to enforce your rights within a legal framework.
The difference between a right of action and a claim?
There is disagreement in legal scholarship about the relationship between the concepts of “legal action” and “right of action”. According to some, they are synonyms. Others take the view that the right of action is the right to bring a claim (ius agendi), while the legal action refers to the substantive legal claim.
In the Netherlands, the right of action is also regarded as the right to claim something (ius agendi), but a legal action, as a procedural act, must be brought to bring the case before a judge.
The legislator does not use the same terminology consistently either. Although the term “legal action” is used in several instances (Articles 17, 18, 821 and 1345 of the Belgian Judicial Code), the term “claim” is used in most cases to refer to the effective exercise of the legal action.
Substantive legal claim – legal action – claim
A legal action is not the same as having a substantive legal claim or making a claim. For example, if you are not entitled to a one-off additional payment, you cannot demand it either. In that case, there is no legal basis for your claim, which will therefore be dismissed as unfounded.
If, on the other hand, you do have a right to a one-off additional payment but do not have the required standing or interest to bring a legal action, your claim will be inadmissible (Articles 17 and 18 of the Belgian Judicial Code). Depending on the reason for the inadmissibility and the stage of the proceedings, it may be possible to remedy the defect and subsequently obtain a decision on the merits. This does not mean, however, that you must always have a legal action in order to have rights.
For example, you may have waited too long to bring a legal action against your buyer to claim payment of the purchase price. In that case, your legal action is time-barred and you can no longer enforce your rights. Your right nevertheless continues to exist, meaning that the buyer cannot subsequently reclaim what has already been paid by arguing that the payment was undue (for legal acts and legal facts occurring from 1 January 2023: Article 5.195, read together with Articles 5.133 and 5.134 of the Belgian Civil Code; for older situations, transitional rules may mean that the former law still applies).
Have you been summoned to court, or are you considering initiating legal proceedings?
Please feel free to contact the lawyers at Wanted Law. They are ready to assist you!