La cessio pro solvendo ex art. 1198 c.c. alla prova della revocatoria fallimentare

Translated title of the contribution: [Autom. eng. transl.] The cessio pro solvendo ex art. 1198 of the Italian Civil Code at the test of the bankruptcy revocation

Emanuele Tuccari

Research output: Contribution to journalArticle

Abstract

[Autom. eng. transl.] The assignment of the credit instead of the fulfillment is configured as a special institution with respect to the datio in solutum: however, it differs from the art. 1197 cc for the object of the service. Article. 1198 of the Italian Civil Code provides for the possibility of extinguishing the original obligation by assigning a credit. This distinction leads to important differences in the functioning of the two institutions: while the payment payment produces immediate extinction effects, the assignment of the credit produces its effects only at the time of collection by the assignee. The withholding tax must also be compared with the general regulation of the assignment of the credit and, in particular, with the assignment of the credit with guarantee. In this way we understand the "neutral" nature of the credit assignment, which can be governed by various causes. Article. 1198 of the Italian Civil Code outlines a sale with a solutational cause, thus distinguishing itself from the sale with a guarantee case. In reality, the termination pro solvendo also performs a guarantee function, albeit only of "mere fact", since the solutive effect is realized only at the time of the collection of the credit. The complex function of the assignment of the credit instead of the fulfillment was therefore highlighted. However, these differences seem to be attenuated in jurisprudential practice: the courts indicate distinctive criteria, albeit merely indicative. Among these, a fundamental role is played by the chronological criterion: if the assignment is contextual or subsequent to the assumption of the debt not yet expired, the assignment is presumed to have been carried out with a guarantee case; if, on the other hand, the assignment is made to cover a debt that has already expired, a solutive case is presumed. Over time, the jurisprudence seems to adopt a chronological-functional criterion, more attentive to the functional profiles of the incisive act in the concrete case. In this way, configuring the assignment of credit instead of fulfillment is functional in resolving important concrete issues, especially in matters of bankruptcy revocation. In particular, the assignment of the soliciting credit is subjected to art. 67, 1st c., N. 2, l. fall. And the assignment of the credit with a guarantee due to art. 67, 1st c., N. 3-4, or 2o cl fall.
Translated title of the contribution[Autom. eng. transl.] The cessio pro solvendo ex art. 1198 of the Italian Civil Code at the test of the bankruptcy revocation
Original languageItalian
Pages (from-to)778-783
Number of pages6
JournalOBBLIGAZIONI E CONTRATTI
Publication statusPublished - 2011

Keywords

  • cessione di un credito in luogo dell'adempimento

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