Changes on the side of debtor
There are several ways in which the subject of the obligation on the debtor side may change in an obligatory legal relationship. The obligation of a debtor under a contract can be transferred to a third party – by assuming debt, accessing debt, or assuming fulfillment.
By assuming debt , the acquirer takes the place of the previous debtor, and the latter is released from his obligations. The debt is assumed by a contract between the debtor and the acquirer, if agreed by the creditor. Thus, even though the parties to the debt assumption contract are the debtor and the acquirer, the contract is not valid and there is no change on the debtor’s side unless agreed by the creditor. Until the creditor agrees, or if it happens that the creditor refuses to give his or her consent, the debt assumption contract has the effect of a fulfillment assumption contract. The creditor may give his consent before concluding the contract, concurrently with or after concluding the debt assumption contract. However, if the acquirer was indebted at the time of the creditor’s consent to the debt assumption contract, the previous debtor shall not be released, but the debt assumption contract shall have the effect of a debt accessing contract, provided that the creditor did not know or should have known of the acquirer’s indebtedness.
The characteristics of a debt assumption contract are
- informality, which means that the contract can be concluded in an oral or written form, as opposed to some contracts which are only valid in writing, such as a contract of guarantee. Since the debt assumption contract between the debtor and the acquirer does not have to be in writing, neither does the creditor’s consent to the assumption have to be in writing, however the creditor’s silence does not mean consent, so if the creditor does not declare about it on the reqest of debtor or acquirer within a specified period of time, it is considered that he did not give his consent. The creditor’s consent must exist, whether in writing or verbally, and may consist of implicit acts, or in receipt of some fulfillment by the acquirer that has done on his own behalf;
- abstraction, that is the characteristic which means that the purpose of the legal transaction concluded is not visible from the contract itself, and generally it is preceded by the existence of another contract which may not be apparent from the debt assumption contract itself; and
- accessoriness, or the dependence of the debt assumption contract itself on whether there is a valid debt obligation of the main debtor, and thus the creditor will not be able to demand the fulfillment of the debt assumed by the new debtor if the obligation of the main debtor has not already arisen or been blocked
The change of the debtor does not change the content of the obligation that previously existed between the previous debtor and the creditor. The creditor may require the acquirer as the new debtor only to fulfill the obligations which he could have asked for before assuming the debt from the previous debtor. Subsidiary rights with the claim remain intact (for example, a contractual penalty), except for deposit and guarantees of third parties that are transferred only with their consent, and interest until the date of assumption of debt, unless otherwise agreed.
The acquirer may lodge all the complaints of the previous debtor in the legal relationship from which the debt originates, as well as his own complaints, while he may not lodge the personal complaints of the previous debtor or the complaints of his own relationship with the previous debtor, which was the basis of the debt assumption. In practice, it means that the acquirer as a new debtor would be able to lodge a complaint about the statute of limitations that has elapsed in relation to the previous debtor or to offset one of his own claims against the creditor with the debt that has been assumed, but would not, for example, be able point out to him that the previous debtor did not fulfill some sort of obligation to the acquirer which was a condition of the debt assumption, such as that he had not done some work in return for the debt assumption.
The debt access contract is a contract concluded by a creditor and a third party, whereby the third party undertakes to fulfill the obligation of the debtor and thus enters into an obligation next to the debtor. The validity of a debt access contract does not require the consent of the debtor, nor can the debtor prevent the third party from paying the debt if the obligation is due. Given that the main debtor does not participate in its conclusion, he is not released from the obligation. The creditor may seek a compesantion from the main debtor as well as from the person who has accessed the debt. The fact that previous debtor is not released from the obligation is also a key difference between a debt assumption contract and a debt access contract. It has already been noted that the debt assumption agreement, to which the creditor gave his consent when the debtor was indebted and which the creditor did not know or need to know about, has the effect of a debt access contract. A debt access contract is also informal, meaning that it can be concluded in an oral form or through the implicit conduct of a creditor by which he accepts a third party’s debt access statement.
The fulfillment assumption contract is concluded between the debtor and the third party who undertakes to fulfill his debt to the creditor. The validity of this contract does not require the consent of the creditor, nor does this contract result in a change of person on the debtor’s side. In case that the acquirer fails to fulfill the obligation to the creditor on time and the latter seeks fulfillment from the debtor, the third party is responsible for fulfillment only to the debtor and not to the creditor. The creditor cannot ask from the acquirer to fulfill the debt. However, the creditor is generally obliged to receive the fulfillment of the debt from a third party so that he does not fall into arrearage with the debtor. Let us mention that the Law assigns the legal effects of the fulfillment assumption contract to the debt assumption contract until the creditor gives his or her consent or refuses to give a consent to the assumption of debt.