VENTA DE UN BIEN INMUEBLE POR UN PRECIO JUSTO REALIZADA POR EL DEUDOR ENAJENANTE PARA PAGAR A UNOS ACREEDORES CON PREFERENCIA A OTROS Y ACCIÓN REVOCATORIA O PAULIANA.

Abstract

In this brief article, we address the following problem: When the sale of a debtor's sole asset (immovable property) is followed by the application of the price the asset fetches to pay off certain creditors with preference over other creditors, can the sale be decreed rescinded due to creditor fraud? The question is delicate, because there is a necessary connection between the act of sale and the subsequent act of payment. The arguments wielded in favour of the irrevocability of the sale followed by payment of some obligations are varying. They fundamentally focus on the absence of this or that requirement for action for revocation. Along these lines, our country's caselaw finds the foundation for irrevocability in the non-existence of consilium fraudis, as the understanding is that the purpose to which the price of the sale is put contradicts any fraud. We, however, adhere to the thesis that the act of sale in the hypothesis in question is revocable in the abstract, although it might not be revoked in a concrete case due to the absence of one of the requirements for action for revocation.