Condiction claim may apply to things defined by both individual and generic characteristics, as well as subsidiarily apply after court decision on vindication - SC GC

The analysis of the provisions of Chapter 83 of the Civil Code of Ukraine shows that this Code does not differentiate the peculiarities of the application of the condiction depending on the generic or individual characteristics of its object and, accordingly, does not limit the scope of its application exclusively to things defined by generic characteristics.

If it is impossible to return the property to the owner after a court decision on vindication (Articles 387, 388 of the Civil Code of Ukraine), the rules on unjust enrichment under part 3 of Article 1212 of the Civil Code of Ukraine apply subsidiarily and the owner's violated right is restored by filing a condictional claim.

Such conclusions were made by the Grand Chamber of the Supreme Court in a case on reimbursement of the cost of a car based on Articles 1212 and 1213 of the Civil Code of Ukraine.

In the case, the court decisions in which were reviewed in cassation, the car belonging to the plaintiff was disposed of against his will and, after repeated alienation, passed into the ownership and possession of the defendant. By a court decision, the car was reclaimed from the defendant's possession. Enforcement proceedings were initiated on the basis of the writ of execution. Subsequently, the enforcement officer returned the writ of execution without execution because the debtor's vehicle, which was sought by the police, had not been found within a year of the announcement of the search.

The courts of first and second instances partially granted the claims.

In her cassation appeal, the defendant argued that a condictional claim can only be satisfied in respect of property defined by generic characteristics (including money), and a car is an individually defined thing, so condictional claims cannot be used as a way to protect rights. The only effective remedy is to reclaim the car.

Based on the results of the case consideration, the Grand Chamber of the Supreme Court concluded that the analysis of the provisions of Chapter 83 of the Civil Code of Ukraine shows that this Code does not differentiate the peculiarities of the application of the condiction depending on the generic or individual characteristics of its object and, accordingly, does not limit the scope of its application exclusively to things defined by generic characteristics.

The Supreme Court also noted that the legislator extended the provisions of Chapter 83 of the Civil Code of Ukraine to the relations on reclamation of property by the owner from another's illegal possession (para. 2, part 3, Article 1212 of the Civil Code of Ukraine).

If it is impossible to return the property to its owner under a court decision on vindication, the provisions of part 3 of Article 1212 of the Civil Code of Ukraine on the prohibition of unjust enrichment are subsidiarily applied.

In this case, the plaintiff, having been unable to enforce an enforceable court order for the recovery of a vehicle belonging to him from the unlawful possession of another person, claimed compensation for the value of the vehicle belonging to him which the defendant had wrongfully retained.

The interpretation of Article 1213 of the Civil Code of Ukraine gives rise to the conclusion that reimbursement of the value of unjustifiably retained property is applicable if it is established that the property cannot be returned in kind, which may be due to the destruction of the thing, its processing, loss, unlawful transfer to a third party, etc.

Taking into account the peculiarities of a vehicle as a movable thing that can be freely moved in space, disassembled, recycled, etc., the absence of results from measures aimed at its search for a long time may, under the specific circumstances of the case, qualify as the impossibility of returning the unjustifiably retained property in kind.

The behaviour of the defendant, who, contrary to the court's order, transferred the disputed car to her son, while acknowledging her obligation to return the property, but by her actions and omissions evaded the execution of the court's decision, is inconsistent and contradictory and cannot be used by her as a ground preventing the application of the rules of part 2 of Article 1213 of the Civil Code of Ukraine.

Resolution of the Grand Chamber of the Supreme Court of 25 September 2024 in case No. 201/9127/21 (proceedings No. 14-33цс24) - https://reyestr.court.gov.ua/Review/122434169.

This and other legal opinions of the Supreme Court are available in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.