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Methods of liability transmission and transformation: debenture cession and assumption of debt


Author: Constantin Căruntu
Degree:doctor of law
Speciality: 12.00.03 - Private Law (with specification: Civil, Family, Civil Procedure Law, Notary, Business, Informational, Private International, Labour Law, Social Protection Law)
Year:2007
Scientific adviser: Eugenia Cojocari
doctor habilitat, professor, Moldova State University
Institution:
Scientific council:

Status

The thesis was presented on the 31 March, 2007
Approved by NCAA on the 14 June, 2007

Abstract

Adobe PDF document – 0.34 Mb / in romanian

Thesis

CZU 347.4

Adobe PDF document 0.83 Mb / in romanian
142 pages

Keywords

obligation, duty. creditor, debtor, transmission, transformationt, assignment of claims, assignor, assignee, assignment debtor, assumption, of debt, factoring, substitution, real substitution, personal substitution, novation, substitution, renewal (of lease), natural obligations, dispute right, civil obligations, dispute retract

Summary

In the present paper are analyzed the main theoretical and practical aspects connected with liability transmission and transformation. The goal of this paper consists in the analysis of juridical regulations on liability transmission and transformation (debenture cession and assumption of debt) according to the legislation of the Republic of Moldova, Romania, Russian Federation and other states.

Although this theme is not a novation because some practical and theoretical investigations have been made both in the doctrine and in the practice of the Republic of Moldova, and in that of Romania, Russian Federation, etc. The novelty of this paper consists in the fact that the methods and grounds for liability transmission and transformation are analyzed very closely for the first time in the national theory of the Republic of Moldova and Romania.

From the structural point of view the paper consists of three chapters. In the first chapter are defined the concepts of liability transmission and transformation starting from the historical analysis of this institution. The analysis of different aspects of creditor’s rights transmission to third persons makes possible the determination of different grounds for passing over of the creditor’s rights. The creditor’s rights can be passed over on the basis of different grounds: agreement of parties, unilateral legal act, law, court decision, etc. Without a well defined system of grounds for liability transmission and transformation it is hard to apply this institution in practice. Their systematization has a scientific interest.

In the second chapter are analyzed the legal means for transmission of rights and liability. The debenture cession and a number of its variations such as sale of litigious rights, sale of succession rights, factoring contract and subrogation in creditor’s rights through debenture payment are analyzed in details. Here is also analyzed the assumption of debt with its two variations: on the basis of the contract concluded between the creditor and the third party and on the basis of contract concluded between the debtor and the third party. The main conditions of these methods of rights and liability transmission, as well as their correlation with other connected institutions have also been analyzed for the purpose of underlining the main particularities.

In the third chapter are analyzed the legal means used for the transformation of liability: a) novation, b) transformation of civil and natural liabilities, c) delegation. The analysis of these factors permitted the underlining of the particularities of these institutions. The paper is based on the comparative analysis of the above-mentioned institutions made according to the current legislation of the Republic of Moldova, Romania and Russian Federation. There has also been used legal literature of authors from the respective countries.