Conference �Ломоносов 2021�
Секция �Английский язык и право�
Merger in Separate, Indivisible, and Solidary Obligations
Борха Сергей
Student (master)
Российская школа частного права (институт), Москва, Россия
E-mail: sergey@borha.ru
1. Confusion or merger per se has an inter partes effect in obligations with several creditors
and/or debtors. In other words, it only affects two persons, whereas none of the other debtors
are discharged from the performance and no rights of the other creditors are extinguished. This
is a default rule, which might be established as a legal presumption for all cases of multi-party
obligations. Consequently, exceptions thereto should be justified with proper reasons.
2. The inter partes effect of the confusion is an objective consequence of the structure of
multi-party obligations that are consisted of plurality of legal bonds (liens obligatoires) [1,
p. 827]. The merger affects only one of the links in the bundle and therefore does not cause
extinguishment of the whole obligation. Thus, the position of the other participants remains
untouched.
3. For cases of separate and solidary obligations with a divisible prestation, the default rule
should be applied, except for the instances where the application thereof leads to ineffective
economic results (see theses 5 and 7).
4. If there is only one creditor or debtor in a multi-party obligation, the application of the
default rule has different practical consequences for separate and solidary obligations:
(a) separate claims and debts are extinguished in part;
(b) solidary obligations are not extinguished at all.
5. The default rule is not optimal for cases of active and passive solidary obligations with a
divisible prestation: when the debt is paid by one of the solidary debtors not affected by merger,
he or she immediately receives an action against the creditor (who is also a debtor) to return
the part of the performance. This increases transaction costs, so that is why another solution
should be preferred under such circumstances. The optimal regulation is expected to be based
on the erga omnes effect of confusion limited to the internal share of the creditor (for solidary
claims) or debtor (for solidary debts).
The application of this rule can have three different practical consequences:
(a) total extinction of the obligation if the internal share equals 100%;
(b) partial extinction of the obligation if the internal share is in the range from 0% to 100%;
(c) no extinction of the obligation if the internal share equals 0%.
6. The default rule is well suited for indivisible obligations. The amount of an indivisible
obligation remains the same but the circle of the eventual solventēs or accipientēs decreases by
1 unless there is a mixed plurality of persons.
This is also the case for separate and solidary obligations with a mixed plurality of persons,
since a succession should not be detrimental to the third parties.
7. There may be exceptions to the previous thesis for instances wherein, by virtue of the
merger, the creditor or creditors lose interest in maintaining the obligation. This might occur
when a creditor becomes the successor of the debtor who has already made preparations for the
performance (e.g., has bought a promised piece of property). In this situation, it is senseless to
keep the obligation, so the merger should have the erga omnes effect.
References
1) Obligaciones / N.O. Silvestre. et al. 2a. ed. Buenos Aires: La Ley, 2016. 897 ps.
1
Отзывы:
Авторизуйтесь, чтобы оставить отзыв