The Limits of Self-Help in Civil Law

The limits of self-help as a means of personal defense are reflected in the Civil Code; however, its use as a "right" is associated both with the risk that the person's actions may exceed the established limits, and in some cases, with varying interpretations regarding these limits themselves. The article on self-help in the Civil Code looks as follows: Article 118. “If the assistance of competent authorities cannot arrive in time and without prompt intervention there is a danger that a right cannot be exercised or its exercise will be substantially hindered, the action of a person who, for the purpose of self-help, seizes, destroys, or damages a thing, or for the same purpose detains an obligated person who might flee, or suppresses the resistance of the obligated person against an action they were supposed to perform, shall not be considered unlawful.”;

That is, the said article consists of several stages (dispositions) that must be present simultaneously for self-help to be considered a justified measure, namely:
a) If the assistance of competent authorities — "competent authority" implies the relevant structure of the executive branch, be it the police or, for example, the National Bureau of Enforcement, whose right it is to provide the said assistance;
b) Cannot arrive in time — meaning the action of the competent authority fails to provide a quick service to the person; furthermore, the term "in time" (timeliness) implies a short period of time;
c) And without prompt intervention there is a danger — meaning the failure to carry out the action in that short period of time must cause danger. As for the danger, although it is not specified in the norm, it is presumed that the danger must be immediate and not continuous;
d) That a right cannot be exercised or its exercise will be substantially hindered — although the norm specifies "right," as theory indicates, this term implies a claim (i.e., the claim of one person and the additional claims arising on its basis). The inability to exercise or the substantial hindrance of the execution of the claim must be evident; meaning, without the action, the person will not be able to, or will find it extremely difficult to, realize their claim;
e) Then the action of the person shall not be considered unlawful — meaning these circumstances (a, b, c, d) with their factual compositions must be present simultaneously and not separately, so that the decision made independently by the person is not considered unlawful. Otherwise, even if one precondition is missing, the action will be considered unlawful;
f) Who, for the purpose of self-help, seizes, destroys, or damages a thing — circumstances (a, b, c, d) must be present for the person to be granted the right to seize, destroy, and/or damage the thing;
f.a) Or for the same purpose detains an obligated person who might flee — this already represents a second alternative, which differs from the action specified in point (f);
f.b) Or suppresses the resistance of the obligated person against an action they were supposed to perform — this represents a third alternative, differing from the action specified in point (f);

In one case, the Supreme Court (Case No. as-1057-1012-2014) indicated that: after the termination of the lease relationship, the lessor is no longer obliged to ensure the possibility of receiving fruits from the leased property, and their attempt to retrieve this property from the lessee may be considered as self-help (Article 118 of the CC). True, exceeding the limits of self-help may become grounds for imposing damages on the person acting for the purpose of self-help (Article 120 of the CC), but in the given case, the lessee did not raise such a claim. This interpretation is somewhat interesting because the lessor, although terminating the lease agreement due to non-payment, correctly considered the termination of the agreement itself as an opportunity for self-help by indicating that the lessee was not given the opportunity to receive fruits. In contrast, legal theory considers that "the use of self-help in contractual relations is impermissible";

In another case, the Supreme Court (Case No. as-159-867-03) did not consider the transfer (so-called "deduction") of funds from an account by a bank in its favor as an action within the limits of self-help, because: “the deduction of funds from the account without its (the company's) consent cannot be considered as self-help, since according to the suretyship agreement, the creditor could always have appealed to the competent authority, in this case the court, with an appropriate lawsuit in due time. Based on the circumstances of the case, there was no danger that JSC ‘S.S.B.’s’ right to recover the sum would not be realized without deducting the funds from the account, as LLC ‘J.’ is a solid organization, has adequate property and funds, and has the ability to pay the sum awarded according to the law.” Moreover, in accordance with the first sentence of Article 115 of the CC, a right must be exercised lawfully;

It is also an interesting question what means should be used by a person intending to resort to the limits of self-help. It is presumed that the person possesses all the rights that the relevant competent authorities have. However, as for the detention of a person, I think this is the most sensitive issue because, in my firm belief, it goes beyond civil law, and its use should be an extreme measure. At the same time, there must exist an immediate danger of such a nature as to outweigh the person's constitutional right. This means: can one person detain another if the potential detainee has a matured obligation to pay a sum to this person? The answer is unequivocal: detaining a person who owes a debt does not fit into this article, and it contains elements of a criminal offense in the actions of the detaining person. As for the necessity of detention itself, this can only be an urgent necessity if the person is caught in the act of committing a crime and the law enforcement agencies themselves are delayed. In other cases, theory considers that there might be justification for the purpose of identifying the person, but in my opinion, even this is inadmissible, as civil law should not step out of its bounds;

It is also interesting that the court, to a certain extent, expanded the limits of self-help in cases where covert audio and/or video recording is carried out, but with the sole condition that this must be the only way to protect one's own right, because otherwise the person will not be able to protect their right, or there is a real danger of the destruction of all other evidence (this is mostly done when violence is exerted upon a person or their property is destroyed by another, and no other option remains). However, in the same decision, the court categorically excluded and did not consider as part of the limits of self-help a covert recording made "in order to impose civil liability on the person." Regarding civil liability, this means that: if a person lent a certain amount to another but did not ensure the signing of a written agreement, presenting an acknowledgment of debt in the form of a covert recording cannot be considered evidence, nor can it be considered self-help, because the party failed to perform the corresponding action within the area of their responsibility in due time—that is, they did not execute a loan agreement, etc;

Additionally, it is interesting that the Civil Code itself establishes the limits of self-help and specifies (Article 119 of the Civil Code) what the limits of self-help are: Self-help must not exceed the limits necessary to prevent the danger (meaning self-help must serve only the limits established by Article 118; other circumstances cannot be considered grounds for justification); In case of the seizure of a thing, a declaration regarding the seizure (attachment) of the thing must be made immediately (in the case of seizing a thing, we are talking about a declaration of attachment, but it must be submitted to the National Bureau of Enforcement and/or the court in the absolute shortest time possible so that the attachment is applied to it);

In the case of detaining an obligated person, they must be presented to the appropriate authorities immediately (here, of course, the issue arises that the detention of a person must be a last resort and not the primary one, and after detention they must be handed over—that is, law enforcement agencies must be called, and within their competence, they must ensure the confirmation of the person's culpability). It is also noteworthy that the use of this right by the person carrying out self-help should only occur in exceptional cases. Otherwise, the elements of a crime provided by the Criminal Code may be present (Article 360: Arbitrariness, that is, the willful exercise, contrary to the established rule, of one's actual or supposed right, which caused substantial damage). In addition, arbitrariness can also arise when a person conducts an activity and, by law, is granted a right of pledge over the debtor's property. Consequently, due to the right of pledge, they may have the right to possess this item, but it must be short-term, and at the very first opportunity, the execution of this right must be carried out through the court; otherwise, the same result may occur here as well (meaning elements of a criminal offense);

In the event that a person makes a mistake regarding the limits of their self-help, the Civil Code imposes on them the obligation to compensate for damages (Article 120. Obligation to compensate damages. A person who performs an action provided for in Article 118 under the mistaken assumption that it was necessary to prevent an unlawful action is obliged to compensate the other party for the damage caused thereby);