Some considerations regarding the recovery of a debt by the unsecured creditor of an heir

• Author: Silviu-Dorin Schiopu
• Position: Transilvania University of Brasov
• Pages: 183-188

Bulletin of the Transilvania University of Braşov

Series VII: Social Sciences • Law • Vol. 9 (58) No. 2 - 2016

SOME CONSIDERATIONS REGARDING

THE RECOVERY OF A DEBT BY THE

UNSECURED CREDITOR OF AN HEIR

Silviu-Dorin ŞCHIOPU 1

Abstract: Nowadays, the article 1107 of the New Civil Code regulates the

acceptance of an inheritance by the heir’s creditors. For a better

understanding of the difficulties that the heir’s unsecured creditor faces in

enforcing his rights, this short overview attempts, on the one hand, to

highlight certain aspects of the present-day configuration of the unsecured

creditor’s legal position, and, on the other hand, to examine the special case

of the heir’s unsecured creditor and some of the obstacles that he faces in

order to recover the debt in an effective way.

Key words: succession, inheritance, unsecured creditor, heir, oblique

action, National Notary Registry of Successions.

1. Introduction

A person’s death is socially in principle a sad event, one of the few exceptions being

probably the situation in which the heir with concrete vocation to inherit the deceased is

insolvent. As a result of the opening of the inheritance, the creditors of the insolvent heir

might assert claims, either amicably, in the event that the debtor accepts the inheritance

and then he pays his debts willingly, or by court, if the heir (debtor) does not exercise the

right of inheritance option in the sense of accepting the inheritance.

However, among all the heir’s creditors, the unsecured creditor is in the most precarious

situation, because he does not have any privilege, any hypothec right, any right equivalent

to hypothec, according to art. 2347 from the Civil Code (Law no. 287/2009 regarding the

Civil Code), nor any right of pledge for the assets from the debtor’s patrimony in order to

effectively exercise the claim, so that the exploitation of his rights by court may prove

extremely difficult in this context.

2. The Unsecured Creditor’s Legal Position

According to the most recent legal definition that we can find at point 6 of art.3 from

the Law no. 151/2015 on insolvency proceedings against private individuals (Law no.

151/2015 on insolvency proceedings against private individuals), the unsecured creditor

is that creditor who does not have the quality of the holder of a claim that benefits from a

case of preference.

1 Transilvania University of Braşov, dorinxschiopu@gmail.com