EFICACIA Y OPONIBILIDAD DE LA CESIÓN DE CRÉDITOS: NUEVAS NORMAS Y PROPUESTAS, NACIONALES E INTERNACIONALES.

Abstract

The laws on the efficacy of debt assignment in some countries' civil codes is traditionally a subject that has aroused controversy amongst legal scholars, due to the difficulties that arise from the contrast between different countries' property transfer systems. Proposals for new regulations of the matter, such as the draft legislation to reform the French and Spanish civil codes, the draft Common Frame of Reference for harmonizing the matter throughout Europe and other unifying international rules, may lead to the firm establishment of a consensual system for transferring debt, which would be completed by measures for the due protection of the debtor. The problem is how to articulate a system. The system ought to work on the basis of the rules adopted for transferring title to debt (which do not have to be the same as the rules for transferring ownership of real rights), and it ought to have an immediate, erga omnes effect of transfer. It ought to be complemented by rules that distinguish amongst the different third parties, so as to accord a certain protection and regulate the third parties'right to object to title changes; just as the debtor is entitled to special considerations, there should also be room for nuances with respect to the assigner's creditors and successive assignees. Whatever solutions are reached should be applied to the case of transferring debt for purposes of security and events where mortgage debts or future debts are assigned.