RIGHTS OF THE CREDITOR OVER THE DEBTOR’S PATRIMONY
- abstract –
PhD Tutor,
Prof.univ.dr. Valeriu Stoica
PhD Candidate,
Cosmin – Răzvan Mihăilă
The oblique/derivative (subrogation) action and the Paulian (revocative) action are
important institutions of the law of civil obligations, and appear under this form in all the law
systems of Roman origin.
The oblique/derivative action (action oblique) was invented by the medieval law, as a
substitute for a procedure of collective execution of the insolvent debtor who was absent,
because the principles of the collective procedure of selling the debtor's assets from the
Roman law had not been taken over in the law of the Middle Ages. From here it was taken
over in Napoleon’s French Civil Code; the Romanian Civil Code of 1864 adopted the
institution, in its turn, by inspiration from the French legislation.
The Paulian action (action paulienne) originates from the Roman law, being initially
considered a personal (inter partes litigantes) action producing effects only in relation with
the claimed creditor. Later on, in Justinian’s Institutions, the Paulian action had an erga
omnes character, within the collective procedure of selling the insolvent debtor’s assets
(venditio bonorum). The action was not introduced by each separate creditor, but by the
person empowered by the creditors to sell the debtor’s assets (curator bonorum). From here it
was adopted in the medieval law as a personal (inter partes litigantes) action and then in
Napoleon’s Civil Code, from where it was transposed into the Romanian civil legislation.
Although they are not actions that are frequently encountered in the practice of the
courts of law, mainly because of their restrictive conditions, they preserve their significance,
being important means of guarantee for the accomplishment of the debts owned by creditors,
exhibiting also a significant comminatory character by which the debtor is determined to
adopt a loyal behaviour toward his/her creditors.
In the French legislation, the lacunary regulation of Napoleon’s Civil Code has been
preserved up to the present; however the institutions have constantly evolved, under the
impulse of the legal doctrine and the jurisprudence of higher courts, toward modern forms,
adapted to the current economic life.
In the Romanian law, the institutions were taken over from Napoleon’s Civil Code,
and the jurisprudence and doctrine assumed the role of developing these institutions along
time, their evolution being very close to that of the French doctrine.
Along the legislative modernisation brought about by the Romanian Civil Code of
2009, several controversies were settled in the doctrine related to the legal nature of these
actions and their exercising conditions were altered, in accordance with the current social
realities, and they have become modern means of creditors’ rights defence.
After the introductory chapter, the thesis analyses the creditors’ right of common and
general pledge (droit de gage général) on the patrimony of the debtor. I reviewed the
definitions offered to this institution in the specialised doctrine and I proposed my own
definition which, in my opinion, reflects the best the traits of this institution. Then I identified
the characteristics of the general right of pledge, domain for which I could not identify a
comprehensive analysis in the doctrine. Finally, I listed the creditor’s general guarantees over
the debtor’s patrimony. I took into consideration both the conservatory measures regulated in
the prior civil legislation (inscription in the Real Estate Register or other publicity registers
provided by the law, intervention in the debtor’s trials in relation with assets from his/her
patrimony and in those of division, introduction of actions in declaration of simulation,
establishment of precautionary measures, the right of the creditor to ask the separation of
patrimony in the case of the debtor’s death, sealing and inventorying of the assets of the
deceased debtor), as well as in relation with the conservatory measures regulated by the
current civil legislation (accomplishment of certain formalities of publicity and information
on the account of the debtor, securing the evidence, precautionary measures and provisional
measures). I also mentioned the controversies existing in the doctrine regarding the
qualification of oblique/derivative action as conservatory measure.
The following chapter examines the oblique/derivative action (indirect or subrogatory
– action oblique) using a special approach which analyses in turn all the institutions of the
civil law (starting from the regulations in the current Civil Code, but drawing parallels and
identifying the differences compared to the prior civil system) and examines their
compatibility with the institution of the oblique/derivative action, as well as the sometimes
surprising effects resulting from their interconnection. Furthermore, the thesis also studies
many institutions of the civil procedural law, criminal law and criminal procedural law, as the
oblique/derivative action is a form by which one may invoke institutions belonging to other
branches of law. I provided also a synthetic approach, examining more abstract issues (for
instance, the formulation of chained oblique/derivative actions) or problems which suppose
the simultaneous analysis of several institutions of civil law.
Moreover, I analysed the definitions offered to the oblique/derivative action in the
specialised doctrine and I proposed my own definition, which I appreciated as being clearer. I
also examined the legal nature of the oblique/derivative action, as well as its effects and
exercising conditions. I had in mind the jurisprudence of Romanian and foreign courts of law,
both the older and the recent ones, presenting in abstract even legal judgments pronounced in
2016.
The following chapter was dedicated to the Paulian (revocative – action paulienne)
action. Similarly, I examined the definitions present in the doctrine for this institution and I
offered my own definition. I analysed the legal nature of the Paulian action, taking into
account both the French doctrine (old and recent) and the Romanian one. This section has a
character of synthesis and offers an analysis of the Paulian action related to many institutions
of law. I also analysed the domain of application, the conditions of exercising and the effects
of the Paulian action through the prism of many institutions of law, with referrals to the
jurisprudence of the courts of law, including the very recent one.
In the chapter dedicated to the elements of compared law, I analysed in enhanced
manner the oblique/derivative action and the Paulian action in the French law, taking into
consideration the old French doctrine (the great French authors) and the recent one, as well as
the jurisprudence of the French Cassation Court and Appellate Courts. Then I examined the
regime of the two actions in the Italian law, as well as in the German law, for the latter
making appeal to the source (legislation) in German language.
Finally, in the conclusion to the thesis, I summarized the main modifications brought
about by the present civil legislation to the two actions and I acknowledged their importance
in the civil law system.
Keywords: oblique action (action oblique); Paulian action (action paulienne);
common pledge of creditors over the debtor’s patrimony (droit de gage général); civil law;
comparative law.