Opposability and Effects of Debt Assignment

• Author: Tita-Nicolescu, G.
• Position: Law Department, Transilvania University of Brasov
• Pages: 181-190

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 7 (56) No. 1 - 2014

OPPOSABILITY AND EFFECTS

OF DEBT ASSIGNMENT

Gabriel TIXA-NICOLESCU1

Abstract: Nowadays, the modern trends and the more frequent use of debt

assignment have led, both in comparative law and in the Romanian

legislation, to a different approach on the assignment of receivables. We find

this approach more fair and more accurate than that in the previou s

Romanian Civil Code, taking into consideration, on the one hand, the effect

of assignment, namely the transfer of a right (t he right to receivables) and

not of a tangible asset, as well as, in fact, as shown above, debt assignment

can be achieved (and could be achieved also under the old civil code) by

means of other types of contracts, other than sale contracts, for example by

means of donations.

Key words: debt assignment, assignment of contract, opposability of

assignment, assigned debtor.

1 Law Department, Transilvania University of Braşov.

1. Opposability of debt assignment

1.1. Introductory remarks

The important specific regulations on the

legal requirements for the effects of debt

assignment refer mainly to its opposability

to third parties. In literature, in order to

define the requirements for the

opposability of assignment the phrase

effectiveness conditions is sometimes

used, justifiable by the fact that debt

assignment bears no legal effects in the

absence of the formalities of publicity /

opposability [1]. Without claiming that the

word effectiveness is wrong, we would

rather use the traditional word of

opposability used in the Romanian law,

especially because the law itself uses this

latter concept.

Third party means, for this purpose, the

assigned debtor, its fidejussor, the

successive assignees of the same debt and,

generally any person that may claim the

existence of debt assignment, such as the

creditors of the parties signing the

assignment (especially the assignor’s

creditors). But, as in fact the assigned

debtor and its fidejussor are ”special” third

parties, we will discriminate between the

opposability of assignment to the assigned

debtor/fidejussor of the assigned debtor

and the opposability of the assignment to

other third parties, therefore the approach

of the matter of opposability shall be

governed by such discrimi nation.

1.2. Opposability of debt assignment to

the assigned debtor and to

fidejussor

The Romanian law stipulates expressly

two manners whereby the assignment

becomes opposable to the assigned debtor,