Wstąpienie w prawa zaspokojonego wierzyciela
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Date
1983
Authors
Advisor
Editor
Journal Title
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Volume Title
Publisher
Wydział Prawa i Administracji UAM
Title alternative
Entering in the rights of the satisfied creditor
Abstract
A third person, who pays off a creditor, acquires the paid-off claim up to
the amount of the given payment (art. 518 § 1 of the civil code). It is the case
of a statutory subrogation which covers a wide range of various situations. It is
aimed to strengthen a position of the person paying off a creditor. At the outset
the author analyses a question of separating the statutory subrogation from allied
institutions. He is advocating for a position according to which we are dealing
here with a recourse claim (in a wide sense). The statutory subrogation is therefore
a specific type of claim.
Next, particular instances of the statutory subrogation are analyzed by the
author. His remarks are started with a discussion of a guarantors claim who
satisfied a creditor. He represents the opinion that in this case the guarantor
fulfils his own obligation and at the same time he pays another's debt for which
he is liable personally. This position implies a solution of secondary questions
related to the guarantor's recourse. If the guarantors are few, the provisions of
joint and several debt are to be applied to their mutual relations in case of paying
off a credit by one of them.In turn the author presents those instances where a third person is liable
for a paid-off debt with certain material objects. A pledge and a real estate
mortgage come into consideration. The author represents the opinion that a construction
of the so called real obligation has to be adopted in this type of real
securities. It implies that a pledger or an owner of mortgaged estate are real
debtors bearing a limited liability to the creditor. The author also dwells on
complex problems related to paying off a secured debt (in the light of the new
act of 1982). A conclusion is reached that a mortgage expires when a creditor is
redeemed by the owner of the estate.
Next questions deal with paying off a claim which has a priority in settlement.
Its practical effect is presently unimportant. A case of paying off a creditor
by a third person with the consent of a debtor is eased in the present laws.
It is the instance of the so called conversion. The payment is in a way imposed
upon a creditor who cannot refuse acceptance of a performance which is already
enforceable.
In the final remarks the author dwells on premises of a recourse claim of an
insurance institution vs. an injurer. It is the instance of property and not of
personal insurance. In the result of subrogation the legal position of a debtor
cannot be deteriorated and is entitled to all defences he had against the creditor
Description
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 45, 1983, z. 3, s. 1-16
Seria
ISBN
ISSN
0035-9629