The contract of debt assumption

ASUNCION DE DEUDA

There is the possibility that a third party assumes an obligation to the creditor payment releasing the debtor.

It is a legal instrument that is specifically regulated us in our Civil Code, but that is accepted by both the principle of autonomy Article 1.255 the C.C. as the Jurisprudence of the Supreme Court.

Definition

The assumption of debt is a contract by which a third party, with the consent of the creditor, takes charge of a preexisting obligation becoming debtor and freeing the original debtor.

Modalities

There are three types:

a)Expromisión: It is an agreement between the creditor and the new deudor.No requires the consent, even knowledge by former debtor for validity that is released at that time (Art. 1.205 C.Civil).

b)Delegation: It consists of the agreement between old and new debtor consent of the creditor. The original debtor (delegator) agrees with another stranger to the contract (delegate) payment to the creditor that support changing the subject required.

c) Cumulative assumption or reinforcement: In this case, the new debtor puts the original debtor together in solidarity, without producing discharging effects for the former debtor, so that an innovation does not occur but there are two identical regime obligations solidarity: The creditor may be directed either against either debtors.

The debt assumption agreement does not extinguish the original obligation, but it persists with all its effects and consequences, except for the change in the debtor, must necessarily be accepted by the creditor (STS 6 June 1991). The original debtor is then released from the burden (except in the cumulative assumption).

Difference related figures

It differs from the bond in this one responsible for someone else's debt while debt assumption, it becomes itself.

In the case of the guarantee, responds guarantor in case of default by the guaranteed, but like in figure bail, Debt is not peculiar to one.

Requirements

The assumption should be expressed (STS 14 November 1990) by the asuntor. And it's imperative the express consent of the creditor, not admitting or presumptive tacit acceptance (STS 25 April 1975).

Effects

Accepted the assumption of debt, if the new debtor becomes insolvent, does not authorize the creditor to take action against the former debtor, except in the case of Article 1.206 C.C or if there is a cumulative assumption.

The new debtor, may oppose the exceptions arising from the debt itself (for example, prescription), as well as those that are based on the assumption own business and personal between him and the creditor (such compensation), but can not rely purely personal that had the original debtor.

The guarantees provided by the original debtor remain, but provided by third parties are extinguished and need their consent to survive.

Prescription

The action arising from the assumption of debt prescribed to 15 years in accordance with Article 1.964 the C.C.

As a result of the crisis, with some frequency debt assumption contracts are performed and its importance is necessary to know the legal consequences involving.

Can Download a sample contract of debt assumption here.

 

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