The rule is that the obligatory relations between the debtor and third parties for the creditor are res inter alios acta. An exception to this rule is the possibility for a creditor to, under certain conditions, refute legal actions taken by his debtor with a third party.
The creditor refutes such actions by filing a lawsuit (actio Pauliana) against a third party i.e. by pointing out an objection against the third party’s claim against the creditor’s debtor or his legal successors, to whom the debtor has transferred certain rights.
Terms of Refuting debtor’s legal acts
The basic general premise for refutation is
- that there is a creditor’s claim against the debtor due for collection (regardless of when it arose) and
- that the debtor is insolvent (which the creditor is obliged to prove).
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The amount of compensation for non-pecuniary damage is determined by the competent court following the criteria set out in the provisions of Article 200 of the Law of Contract and Torts.
According to the provisions of Article 200 of the Law of Contract and Torts, for physical pains suffered, for mental anguish suffered due to reduction of life activities, for becoming disfigured, for offended reputation, honour, freedom or rights of personality, for the death of a close person, as well as for fear suffered, the court shall, after finding that the circumstances of the case and particularly the intensity of pains and fear, and their duration, provide a corresponding ground thereof – award equitable damages, independently of redressing the property damage, even if the latter is not awarded.
In deciding on the request for redressing nonmaterial loss, as well as on the number of such damages, the court shall take into account the significance of the value violated and the purpose to be achieved by such redress, but also that it does not favour ends otherwise incompatible with its nature and social purpose.
Continue reading Circumstances essential for the assessment of non-pecuniary damages
A right to request fulfilment of an obligation shall come to an end if time barred by statute of limitations. Unenforceability due to the statute of limitations shall follow the expiration of the period specified by statute during which the creditor was entitled to request fulfilment of the obligation.
The court shall not consider the fact of an obligation being time barred should the debtor fail to invoke it. This means that the debtor must raise the unenforceability period’s objection in the dispute for the court to consider it. The unenforceability period’s complaint is substantive, and the court will, as soon as it accepts this objection, reject the claim by a judgment and not renounce the action because of procedural reasons.
A debtor shall not renounce unenforceability prior to the expiration of time set forth for such unenforceability. However written acknowledgment of an obligation expired due to statute of limitations shall be construed as the renouncing of unenforceability. Providing security or other kind of guarantee to cover a claim expired due to statute of limitations shall have the same effect.
According to the provisions of the Law of the Contract and Torts, changing the legal unenforceability time limit by the contract is expressly forbidden.
Continue reading Unenforceability of the claims for damages