Review article
On Prescription and Preclusion in a Paulian Action
Zvonimir Slakoper
; Pravni fakultet Sveučilišta u Rijeci
Vlado Skorup
; Županijski sud u Rijeci, sudac
Abstract
Within the context of the institute of contestation of debtor’s legal transactions,
prescription as well as preclusion may arise as issues within the creditor-debtor
relationship and the relationship between debtor and third person to whom a debtor
had transferred some assets.
Having in mind that sometimes it is possible to have prescription of debtor’s
claim in legal transactions between the debtor and the third party, the authors
discuss whether it is possible for the third party to effectively object to the creditor’s
claim contesting debtor’s legal transaction with a complaint of prescription of the
debtor’s claim towards the third party. Besides with this legal question, the article
deals with the issue whether the creditor is precluded from contesting the debtor’s
legal transaction due to the fact that preclusion of the debtor’s right towards the
third party has occurred.
Prescription and preclusion can be acquired within the creditor-debtor
relationship. In case if creditor’s claim is prescribed, and he has filled the civil
action against debtor’s legal transaction after the acquiring of prescription, is it
possible for the third party to successfully object the actio pauliana? If the creditor
loses a subjective right against the debtor due to expiration of preclusive period of
time, is it possible to effectively object actio pauliana filled after the preclusion with
a complaint due to loss of rights no matter if debtor’s rights had been precluded
against the third party?
No less important are the issues of application of actio pauliana, i.e. may
it be submitted only for primary or as well as for secondary claims, and may it
be submitted to obtain the performance of secondary obligation after the primary
obligation had prescribed or had been completed.
In this article the authors offer answers to above raised issues taking into
consideration not only the individual legal rules that govern the individual legal
institutes in question, rather putting the rules within the context of principles of civil
obligations law, especially the principle of conscience and honesty. After a deep
analysis of principles and rules of material law, the authors scrutinise the rules of
civil procedure and comparative material law and present their conclusions.
Keywords
prescription; preclusion; contestation of debtor’s legal transactions; Paulian action
Hrčak ID:
87714
URI
Publication date:
16.4.2012.
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