LA ASUNCIÓN DE DEUDA.

Abstract

The assumption of debt is not regulated in the CC. Dogma on the assumption of debt has been constructed by doctrine and case law, evolving from extinctive novation to modifying novation, and eventually being recognised as having an independent legal configuration. However, it is not a unique, fixed, predetermined type of act; rather, it admits of diverse contractual channels, given the principle of autonomy of will. Article 118 of the Mortgage Act specifically addresses the purchasing of mortgaged property. However, the same terms could be applied not only to other, different non-gratuitous acts (swaps, awards in payment of debt...), but also to acts to transfer real rights in immovable property. On the other hand, it would not be applicable in cases of gratuitous property transfer, where the institutional requisites are different; in the case where a gift of mortgaged property is made, there is no rule in the CC stating that the giver is released from his or her obligation, and in property transfers due to inheritance or legacy, the legal regimen of the secured obligation is not altered, and the heir is obligated to pay as the testator's successor.