The Fidejussor’s Early Regression in the Insolvency Proceedings

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Abstract

The early regression of the fidejussor implies his ability to "turn" against the debtor even before he pays something to the creditor „To turn against“ in the sense of the new Civil Code, does not mean the right to actually receive a payment before the fidejussor has paid, at least in part, the claim of the creditor in whose favor he has guaranteed. The same principle applies in insolvency proceedings where the fidejussor, who has not paid anything yet, may exercise early regression, but his claim against the debtor will be a potential, conditional one, reason for which it will be included in the debt table under suspensive condition, without voting rights.

1. The New Romanian Civil Code - Law nr.287/2009 (entered into force in 2011);

2. Law no.85/2014 on Insolvency Prevention Procedures and Insolvency;

3. The Italian Civil Code;

4. D. Alexandresco, Theoretical and Practical Explanation of Civil Law, Tomul X, Atelierele grafice Socec & co. Publishing House, Bucharest, 1911;

5. C.Hamangiu, I.Rosetti-Bălănescu, Al. Băicoianu, Treaty of Romanian Civil Law, volume II, All Publishing House, Bucharest 1998.

6. R.I.Motica, E. Lupan, The general theory of the civil obligations, Lumina Lex Publishing House, Bucharest 2008;

7. A.G. Atanasiu, A.P. Dumitriu, A.F. Dobre et all, The New Civil Code. Notes. Correlations. Explanations, C.H. Beck Publishing House, Bucharest, 2011;

8. Fl. Baias, R. Chelaru, R.Constantinovici, I. Macovei (coordinators), the New Civil Code - comments on articles art.1-2664, C.H. Beck Publishing House, Bucharest 2012;

9. P. Vasilescu, Civil Law. Obligations - in the regulation of the New Civil Code, Hamangiu Publishing House, Bucharest 2012;

10. E. Veress, Suretyship agreement, C.H. Beck Publishing House, Bucharest 2015.

1. Court of Appeal Timişoara, civil decision no. 465/27 June 2017, file no. 6802/30/2016/a1

2. According to art. 1673 Civil Code of 1864, „The fidejussor, without having paid, may claim indemnification from the debtor: 1. when he is sued in Court to pay;

2. when the debtor is bankrupt or in a state of insolvency;;

3. when the debtor has indebted itself in order to release him from warranty within a specified period and that period has expired;

4. when the debt became payable by the arrival of the due date specified;

5. after 10 years, when the main obligation has no fixed due date, but the principal obligation would not have been such that it could not be extinguished before a certain period of time, such as guardianship, or because the contrary was not stipulated‖.

3. Radu I.Motica, Ernest Lupan, The general theory of the civil obligations, Lumina Lex Publishing House, Bucharest 2008, p.284.

4. Dimitrie Alexandresco, Theoretical and Practical Explanation of Civil Law, Tomul X, Atelierele grafice Socec & co. Publishing House, Bucharest, 1911, p.159

5. Art. 1953 Codice civile italiano - ―Rilievo del fideiussore‖ Il fideiussore, anche prima di aver pagato, può agire contro il debitore perché questi gli procuri la liberazione o, in mancanza, presti le garanzie necessarie per assicurargli il soddisfacimento delle eventuali ragioni di regresso (1179), nei casi seguenti:

1. quando è convenuto in giudizio per il pagamento;

2. quando il debitore è divenuto insolvente;

3. quando il debitore si è obbligato di liberarlo dalla fideiussione entro un tempo determinato;

4. quando il debito è divenuto esigibile per la scadenza del termine;

5. quando sono decorsi cinque anni, e l'obbligazione principale non ha un termine, purché essa non sia di tal natura da non potersi estinguere prima di un tempo determinato.

6. See Cristiana Irimia, in Fl. Baias, R. Chelaru, R.Constantinovici, I. Macovei (coordinators), the New Civil Code - comments on articles art.1-2664, C.H. Beck Publishing House, Bucharest 2012, p.2248.

7. See Paul Vasilescu, Civil Law. Obligations - in the regulation of the New Civil Code, Hamangiu Publishing House, Bucharest 2012, p. 129.

8. See Emod Veress, Suretyship agreement, C.H. Beck Publishing House, Bucharest 2015, p.187.

9. According to Art.2305 Civil Code, „The fidejussor who has paid the debt is subrogated by law in all the rights which the creditor had against the debtor‖.

10. According to art.109 of Law no.85/2014:

„par.1 - A creditor who, prior to the filing of an application for admission of claims, has received a partial payment of his claim from a co-debtor or a fidejussor of the debtor, may have the claim entered in the claim table only for the part he has not received yet. The creditor has the obligation to report any amount received within 3 days of receipt.

par.2 - A co-debtor or a fidejussor who is entitled to restitution or indemnification from the debtor for the amount paid, shall be recorded in the claim table with the amount he has paid to the creditor. In this case, the joint creditor has the right to demand that he be paid, until full payment of his claim, the share due to the co-debtor or fidejussor, remaining creditor only for the unpaid amount.

par.3 - The co-debtor or fidejussor of the debtor which, in order to ensure its regress, has a preferential cause on its property, competes at the credential table in order to make this right possible, but the price obtained from the sale of the encumbered goods will be attributed to the creditor, decreasing from the amount due‖.

11. According to art.2315 of the New Civil Code "If, as a result of the creditor's deed, the subrogation would not benefit the fidejussor, the latter is released within the limit of the amount that he could not recover from the debtor."

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