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On the nature of debt relief

Author: ZhangGu From: www.yourpaper.net Posted: 2007-11-19 15:02:27 Read:
"The nature of" debt relief there are unilateral act and contract two.Unilateral tax rights can be abandoned as its logical starting point, namely to mean presumption of the debtor as the foundation, the logic must be completely does not need to consider the interests of the debtor, will, it is improper.While the contract is able to overcome this defect, and can meet the needs of legal practice, more convincing.
"Key words" debt relief; unilateral acts; both sides behavior; law of obligation
A, Rome law.
Exempt (de Erlass, remise de ladette, release) is the debtor and creditor contract, to abandon the claim, at least the traditional concept that.[1] (P383) study history, today no such as legislation that exempted concept of Rome law, but rather the debt elimination method and exemption two, namely acceptilatio (disclaimer confirming contract), pactum de nonpetendo (claims not to contract).[2] (P348) [3] (P829) and don't into two categories: one, the official release (i.e., free from the civil law), two days (i.e. forgiveness "from the magistrate on the law).
The official release (acceptilatio), is to act to eliminate debt classical Rome law.Geroma ancient law, debt relief and debt creation must be using the same method.For example, according to the stipulatio (stipulatio) the creation of debt, the exemption shall be in the form of a question.In other words, is the debtor and creditor said: "I ask you about things, you have been no" (Quod ego Tibi promisi habesne acceptum)?The answer: "Yu has been Yan" (Habeo).So, the debt to completely remove.The creditors is in fact not repaid, not only in this manner, and has paid the same.Otherwise, not in this way, although the debtor has to fulfill, and debt is still not destroy.So some scholars call it a virtual settlement.As mentioned above, the official release is usually oral (verbis), in order to destroy the stipulatio create debt, but also can be written (litteris).According to the text book contract creation of debt, will be credited to the circumstances to exempt books.According to nexum[1] to create debt, exemption should be division scale and witness to the scene (i.e. in the performance of "copper block and balance way", by the creditor claims have received repayment).In short, for whatever contract, have the same routine debt creation method, are exempt.But at the contract, to contract, consensual contract [2] and private crime born of debt, not in the opposite way that exemption, so very inconvenient.To 65 BC, the magistrate Aquilius Gallus invented a method, where not to debt type mouth about the creation of the first, to the staff about "change" as the mouth about debt, and then to quiz program exempted.The change law called "Aquinas and Leah the stipulatio" (stipulatio aquiliana).Superior to the emperors, "verbal acceptance of contract" (acceptilatio verbis) was retained, as debt relief, and debt creation method and debt relief is divided in two.
"Exemption, which fails to make debt relief, only creditors to simple (pactum) and the debtor agreed, in a fixed period of time or in certain circumstances, or never to the debtor to fulfill the request.The so-called "no debt contracted" (pactum de non petendo), also translated as "don't ask," bound "claims not to contract".This is of course in the civil law is not binding, lenders often on the exemption and then back to the debtor, complex request for payment.The magistrate for the maintenance of the principle of good faith, and thus, as long as the parties have received debt relief and debt relief capacity, and has agreed to waive the right, such as debt personnel back, the debtor may initiate "has simple defense" (exceptio pacti conventi), to refuse the request.
Open to dispense with formal exemption is quite different: (1) the formal exemption shall be attached to the conditions and terms, and does not exempt; (2) the formal exemption to creditors question-answering program for exemption, and are not in a specific way ", such as" no debt contracted express, "certainly, implied can also, if the creditor the bond return the debtor is, the more flexible; (3) the formal release is the virtual settlement, occurrence of equal effectiveness and satisfaction, so the debt relief, the guarantor also exempts the responsibility.Joint creditor one exempt, other joint and several creditors will lose.The one suffered from joint debtors, other joint debtors are exempt from its debt.Effect of blank can be exempted for the (pactum in personam), also can be the material (pactum in rem).The former is only the parties have their effectiveness, but not in both heir.The latter not only to the parties and their successors in force, such as from the debtor's interests, must make third people with exempt interest, then the third person is subject to exempt interest.If the obligee exempts the debtor to pay, the guarantor and discharge, cover less, the creditor to request the guarantor, guarantee to the debtor is still claim, the debtor and the not exempt, almost no difference.But the converse is not.After several debtors by parsimony is released, he joint debtors to the joint debtors should share range exempt interest.But one of several creditors of relieve the debtor to the contracted payment, the debtor shall not only to further recourse to avoid, he joint creditor to the debtor may request all the payment.Based on the above differences, where free from the civil law for is not in conformity with the provisions and invalid, if the parties have exempted from meaning, can take effect from praetor-law of.But does not destroy the debt from the body, only to the debtor to permanent counter-argument right, responsibility and the debtor is not negative nature of debt.[3][4] (P847 850) [5] (P238 240) [6] (P324) [7] (P2, 71, 195)
Two, from the legislation
Rome law tradition and modern states, to exempt from the contract.In French civil law, article 1285th stipulates: "the creditor for a several debtors interests of contract to release or discharge its liabilities, other joint debtors debt also destroyed, but the creditor expressly reserves the right to his joint debtors, unless" (paragraph 2).The 1287th article: "the creditor to contract release or discharge its debts, the obligations of the guarantor also destroy" (paragraph 2): "such as the guarantor of contract to release or discharge its debts, the principal debtor debt does not destroy" (paragraph 1).That is set to contract for exemption.In addition, the French civil law is also provided with an interpretive rule, creditors voluntarily to private signature certificate had returned to the debtor, to prove that debt relief (1282); voluntary with execution of debt certificate copy delivery to the debtor characters, presumed to debts liquidated or exempt, but contrary. Except (1283); creditors voluntarily to private certificate or enforceable debt certificate copy of one of the characters to several debtors, other joint debtors interests also have the same effect (1284).However, refund of the pledge is not presumed to debt relief (1286).
The German civil law 397th stipulation: "the creditor to the debtor to contract from its debt, debt relations." (1)."If the creditor and the debtor contract acknowledgement of debt relationship does not exist, the same" (paragraph 2).The provisions of the first paragraph is exempt from the contract (erlassvertrag), the provisions of the second paragraph is the so-called debt "negative acknowledgement" (negatives anerkenntis), but also to contract for.The two of the debt elimination method, the former is the creation of the (Konstitutiv), the latter is declarative (deklaratorisch).[4] but exempt from the contract makes debt elimination, so petendo and pactum de non.[5]
The Swiss debt law 115th stipulation: "with the agreement of all or part of debt relief, no formal requirements, even if the contracting parties in accordance with the law or the arrangement was requiring specific forms, vice versa".The Bulgarian debt and contract law article 108th also provides that: "if the creditor to the debtor according to contract to give up its claim, its debt is eliminated as a result of exemption".[8] (P159) in the 1922 Russian Civil Code article 129th 4 Provisions: when the agreement of both parties destroy the relationship of creditor's right, relieve the debtor payments, debt that is due to the agreement of both parties and destroy.[6] China's Macao region due to the Portuguese legal effect, the Macao civil code article 854th provisions of the 1 paragraph: "the creditors through contract and debtor and relieve the debtor debt".
Although most countries in order to avoid both behavior, also have less
The number of countries to the individual behavior.Reportedly, Austria civil law article 1444 or so.[9] (P744) Canada "Quebec civil code" provisions of article 1687th, in the creditor exempts the debtor's debts, relieve effect.The exemption is unilateral act.[10] (P338) old Japanese civil law by French law, so the exemption in the old law says the excuse for consensus on to the debtor, commitment to necessary (old Japanese civil law property for 504 to 507).The Meiji civil law, Japan law article 519th is changed to individual behavior, therefore, as long as the creditor to the debtor will exempt from debt, the creditor for the eradication of.[11] (P210) 340th Thailand civil law.[12] (P509 - 511) law draft of Qing Dynasty Civil before I three days by hand, so with the Japanese civil law traces in the exemption.Draft article 480th said: "the creditors said meaning from its debt to the debtor, the creditor's rights destroy".The reason is: slightly method to the debt relief, the legislative cases although the contract as the case for according to, but in fact the convenience, to individual behavior of creditors can be.This article also.[13] (P70, 71) civil law two grass 439th copy, "said the creditor debt relief means, destroy the relationship between debt" (1), "under the preceding paragraph, the debtor in accordance with the provisions of article 402nd second, request for notarization system, its cost to the burden on the debtor" (2).The civil law of Republic of 343rd law draft of Qing Dynasty Civil 480th with roughly the same, since according to article meaning, creditors once said to exempt the debtor, there is no borrowers agree, but that effect relationship to eliminate debt, so avoid into one of individual behavior to solution.[14] (P365)
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