The Paulian Action within the Regulatory Context of Law no. 287/2009 concerning the Civil Code

• Author: Adam, R.A.
• Position: Faculty of Law, Transilvania University of Brasov
• Pages: 37-44

Bulletin of the Transilvania University of Braşov

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

THE PAULIAN ACTION WITHIN THE

REGULATORY CONTEXT OF LAW

No. 287/2009 CONCERNING

THE CIVIL CODE

Roxana Anca ADAM1

Abstract: The term Paulian Action originates in Roman law, where it was a

class action carried in the name of all creditors by a curator bonorum, with

the effect of obligating the debtor to pay the defrauded creditors an amount

equal to the value of the alienated assets. As will be shown, in current legal

practice the action is individual and benefits only the creditor who files suit.

The term of revocatory action was coined by its main effect, namely of int er

partes rescinding of the attacked deeds, which in modern law is considered

synonymous to non-opposability.

Key words: general guarantee, fraud, complicity of the acquiring third

party, uncontested claim.

1 Faculty of Law, Transilvania University of Braşov.

1. Introduction

The Paulian action holds paramount

practical importance, as numerous debtors

seek to elude fulfilment of their assumed

obligations and to frustrate enforcement of

the creditor’s debt by alienating their assets

and the closing of deeds with third parties.

Debtors can compromise their own

assets by deeds closed with third parties,

thus diminishing the values of their assets.

Evidently, the creditor cannot restrict all of

the debtor’s freedom of action, as a person

cannot be declared incapable merely

because they have debts.

However, the debtor’s freedom of action

has to be bounded, in such a way as not to

allow him to compromise his own assets –

the guarantee offered to the creditors – by

means of fraudulent deeds.

Such a restriction is materialised by the law

that enables creditors to attack the fraudulent

deeds closed by the debtor with third parties

such as to frustrate enforcement of the

creditors’ debt, and request these deeds to be

declared non-opposable, that is not binding to

the creditors.

The basis of the Paulian action is the

chirographary (non-privileged) creditors’

right to general guarantee provided by

art.2324 of the Civil Code.

The Paulian action is legislated by the

provisions of art.1562 par. (1) of the Civil

Code, according to which “a creditor who

proves his prejudice can request the

juridical deeds made by his debtor in fraud

of his rights, in particular a deed by which

he renders himself insolvent or augments a

state of insolvency, to be declared non-