Contenido

Cuando el cumplimiento de una obligación aún está pendiente, en primera instancia el acreedor no debiera tener derecho alguno para compeler al deudor al cumplimiento de la obligación. Sin embargo, para evitar que el deudor pueda hacer ilusorio el crédito por medio del ejercicio de actos o contratos negligentes o fraudulentos, el ordenamiento jurídico permite por parte del acreedor el ejercicio de la responsabilidad civil contractual para el aseguramiento de la obligación, un efecto jurídico que lo que busca no es el cumplimiento mismo de la obligación, sino asegurarla a través de acciones judiciales que restrinjan la libertad del deudor para ejecutar u omitir ciertos actos cuyo resultado sea el empobrecimiento de su patrimonio, que es la garantía común de los acreedores para hacerse pago de sus obligaciones.

A esta materia también se le conoce como los derechos auxiliares de los acreedores y son las medidas o providencias conservativas, la acción oblicua o subrogatoria, la acción pauliana o revocatoria y el beneficio de separación.[4]​.

Conservative measures

Among the most common conservative measures are precautionary measures, whose purpose is to ensure the result of the action. There is also the custody and apposition of seals, which allows asking the court that the furniture and papers of the succession be kept under lock and seal, until the solemn inventory of the assets is carried out, an inventory that also constitutes a conservative providence.[5]​.

oblique action

Oblique, subrogation or indirect action is one in which, because the debtor does not exercise his rights and actions, the creditor is empowered to exercise them. In this way, if the debtor is presented with the opportunity to increase his fortune and does not accept it, his creditors can accept it for him, since in this way they will strengthen that assets and thereby increase the possibility of their credits being satisfied.[6]​.

The requirements for oblique action vary in each legislation, although they normally require compliance with 4 conditions:

The main effect of oblique action is this kind of "forced representation", in which the creditor no longer acts on his own behalf, but on that of the debtor himself.

Paulian action

Pauliana or revocation action is an action that allows the creditor to nullify those acts of the debtor carried out to the detriment "Damage (Right)") of his rights, when the latter has acted fraudulently.[7]​.

The object of the Pauliana action is to revoke the acts carried out by the debtor in fraud of his creditors, who thanks to the exercise of this action will be able to return assets fraudulently withdrawn from the debtor's assets, and thus be able to make effective the right of general pledge, which becomes effective in the debtor's assets.

Attributed to the praetor Paul "Paul (jurist)") in Roman times, legislation generally makes use of the Paulian action widely in the field of bankruptcy law, precisely because bankruptcy is where it has its greatest application, since it allows the creditor to request that those acts and contracts carried out by the debtor in fraud of his rights be deprived of effectiveness, which is normally presumed by the bankruptcy regulations: the possibility that the bankrupt had made prior arrangements. to the judgment declaring bankruptcy tending to harm its creditors.

The requirements of the "Pauliana action") vary in each legislation, but present as a common denominator compliance with at least 5 budgets:

The main effect of the Pauliana action is the revocation "Revocation (Right)"): it renders the contested act or contract void. Generally it is of relative effects, since it only benefits the creditor who requests it.[8]​.

A variant of the Paulian action in Colombia is the action of prevalence, which seeks to assert the hidden or simulated act above the apparent act, but without sanctioning the parties to the act.[9]​.

Separation benefit

This is the right that hereditary creditors have to request that the assets of the deceased not be confused with those of the heirs "Inheritance (Right)"), so that the creditors of the deceased can be paid preferentially to the personal creditors of the heirs.[10]​.

Normally, hereditary, testamentary and legatee creditors are the holders of this action.

Its main effect is unenforceability, that is, once the benefit has been judicially declared, all acts carried out by the heirs on the assets of the deceased after the opening of the succession can be revoked "Revocation (Right)").

Hereditary creditors and testamentary creditors may request that the assets of the deceased not be confused with the assets of the heir; and by virtue of this separation benefit they will have the right to have their hereditary or testamentary obligations fulfilled from the deceased's assets, with preference to the heir's own debts.

Hereditary creditors and testamentary creditors may request that the assets of the deceased not be confused with the assets of the heir; and by virtue of this separation benefit they will have the right to have their hereditary or testamentary obligations fulfilled from the deceased's assets, with preference to the heir's own debts.

In order for the benefit of separation to be granted, it is not necessary that what is owed be immediately payable; It is enough that it is due to a certain day or under condition.

The right of each creditor to request the benefit of separation subsists as long as their credit has not expired; but it does not take place in two cases:

1.º) When the creditor has recognized the heir as a debtor, accepting a promissory note, pledge, mortgage or bond from said heir, or a partial payment of the debt.

2.º) When the assets of the succession have already left the hands of the heir or have been confused with his assets, so that it is not possible to recognize them.

11. Title XII: Of the Separation Benefit Art 1435 Art 1436 Art 1437.

Unilateral breach

It occurs when the cause of non-compliance with the obligation is caused by only one of the parties, be it the debtor (normal) or the creditor.[1]​.

It is that caused by the debtor due to his refusal to provide the obligation in an exact, complete and timely manner, and translates into the creditor's right to demand forced execution and/or compensation for damages.[1]​.

The forced execution of the obligation is the form of compliance by equivalence of the same, as perfect, complete, timely and voluntary compliance by the debtor does not occur.

The forced execution of the obligation also constitutes the materialization of the General Pledge Right or common guarantee of the creditors, given that it is through it that the legal system allows the fulfillment of the obligations through the affectation of all the seizable assets of the debtor, when the latter does not carry out voluntary, perfect, complete and timely compliance with its obligation.[1]​.

As a general rule, legislation establishes that the forced fulfillment of an obligation to give is through the alienation or sale of (sufficient) assets of the debtor at auction or public auction, a procedure that, depending on the type of asset to be executed, is carried out through the court itself, an auctioneer or a stockbroker.[1]​.

Normally the legal systems of the various legislations allow the judge to set a deadline for the debtor to comply with his obligation to do so and in case of disobedience, they authorize the creditor or performer to ask the judge to appoint a third party "Third Party (Right)") to execute it at the expense of the debtor. If it is not executed or if the obligation is non-fungible (very personal), the enforcement procedure of an obligation to give continues (auction or auction of the debtor's assets).[1]​.

This type of obligation is the least homogeneous, since its execution will depend on each country. For example, in countries such as Spain, Chile and Peru, a period is set for the debtor to undo what has been done, after which the performer has the right to request that a third party be appointed to fulfill this obligation at the debtor's expense and, if this is not possible, the forced execution of this obligation is carried out through the executive procedure of an obligation to give (auction or auction of the debtor's assets). In other countries such as Argentina or Mexico, the forced execution of obligations not to do are fulfilled directly through the executive procedure of an obligation to give.[1]​.

It is the amount of money that the debtor must pay to the creditor and that is equivalent to or represents what the creditor would have obtained with the effective, full and timely fulfillment of the obligation. [2] It has also been said that it is the right that the creditor has to demand from the debtor the payment of an amount of money equivalent to the advantage or benefit that the effective and timely fulfillment of the obligation would have provided. [3]

There are five requirements for compensation for damages in the contractual setting:

It is that caused by the creditor due to his reluctance to receive payment, due to his failure to appear or the uncertainty about his person.

Reciprocal breach

It is that caused by the reciprocal inactivity of the parties in the fulfillment of their obligations. The legal right of retention and the exception of unfulfilled contract constitute reciprocal breach.

Contenido

Cuando el cumplimiento de una obligación aún está pendiente, en primera instancia el acreedor no debiera tener derecho alguno para compeler al deudor al cumplimiento de la obligación. Sin embargo, para evitar que el deudor pueda hacer ilusorio el crédito por medio del ejercicio de actos o contratos negligentes o fraudulentos, el ordenamiento jurídico permite por parte del acreedor el ejercicio de la responsabilidad civil contractual para el aseguramiento de la obligación, un efecto jurídico que lo que busca no es el cumplimiento mismo de la obligación, sino asegurarla a través de acciones judiciales que restrinjan la libertad del deudor para ejecutar u omitir ciertos actos cuyo resultado sea el empobrecimiento de su patrimonio, que es la garantía común de los acreedores para hacerse pago de sus obligaciones.

A esta materia también se le conoce como los derechos auxiliares de los acreedores y son las medidas o providencias conservativas, la acción oblicua o subrogatoria, la acción pauliana o revocatoria y el beneficio de separación.[4]​.

Conservative measures

Among the most common conservative measures are precautionary measures, whose purpose is to ensure the result of the action. There is also the custody and apposition of seals, which allows asking the court that the furniture and papers of the succession be kept under lock and seal, until the solemn inventory of the assets is carried out, an inventory that also constitutes a conservative providence.[5]​.

oblique action

Oblique, subrogation or indirect action is one in which, because the debtor does not exercise his rights and actions, the creditor is empowered to exercise them. In this way, if the debtor is presented with the opportunity to increase his fortune and does not accept it, his creditors can accept it for him, since in this way they will strengthen that assets and thereby increase the possibility of their credits being satisfied.[6]​.

The requirements for oblique action vary in each legislation, although they normally require compliance with 4 conditions:

The main effect of oblique action is this kind of "forced representation", in which the creditor no longer acts on his own behalf, but on that of the debtor himself.

Paulian action

Pauliana or revocation action is an action that allows the creditor to nullify those acts of the debtor carried out to the detriment "Damage (Right)") of his rights, when the latter has acted fraudulently.[7]​.

The object of the Pauliana action is to revoke the acts carried out by the debtor in fraud of his creditors, who thanks to the exercise of this action will be able to return assets fraudulently withdrawn from the debtor's assets, and thus be able to make effective the right of general pledge, which becomes effective in the debtor's assets.

Attributed to the praetor Paul "Paul (jurist)") in Roman times, legislation generally makes use of the Paulian action widely in the field of bankruptcy law, precisely because bankruptcy is where it has its greatest application, since it allows the creditor to request that those acts and contracts carried out by the debtor in fraud of his rights be deprived of effectiveness, which is normally presumed by the bankruptcy regulations: the possibility that the bankrupt had made prior arrangements. to the judgment declaring bankruptcy tending to harm its creditors.

The requirements of the "Pauliana action") vary in each legislation, but present as a common denominator compliance with at least 5 budgets:

The main effect of the Pauliana action is the revocation "Revocation (Right)"): it renders the contested act or contract void. Generally it is of relative effects, since it only benefits the creditor who requests it.[8]​.

A variant of the Paulian action in Colombia is the action of prevalence, which seeks to assert the hidden or simulated act above the apparent act, but without sanctioning the parties to the act.[9]​.

Separation benefit

This is the right that hereditary creditors have to request that the assets of the deceased not be confused with those of the heirs "Inheritance (Right)"), so that the creditors of the deceased can be paid preferentially to the personal creditors of the heirs.[10]​.

Normally, hereditary, testamentary and legatee creditors are the holders of this action.

Its main effect is unenforceability, that is, once the benefit has been judicially declared, all acts carried out by the heirs on the assets of the deceased after the opening of the succession can be revoked "Revocation (Right)").

Hereditary creditors and testamentary creditors may request that the assets of the deceased not be confused with the assets of the heir; and by virtue of this separation benefit they will have the right to have their hereditary or testamentary obligations fulfilled from the deceased's assets, with preference to the heir's own debts.

Hereditary creditors and testamentary creditors may request that the assets of the deceased not be confused with the assets of the heir; and by virtue of this separation benefit they will have the right to have their hereditary or testamentary obligations fulfilled from the deceased's assets, with preference to the heir's own debts.

In order for the benefit of separation to be granted, it is not necessary that what is owed be immediately payable; It is enough that it is due to a certain day or under condition.

The right of each creditor to request the benefit of separation subsists as long as their credit has not expired; but it does not take place in two cases:

1.º) When the creditor has recognized the heir as a debtor, accepting a promissory note, pledge, mortgage or bond from said heir, or a partial payment of the debt.

2.º) When the assets of the succession have already left the hands of the heir or have been confused with his assets, so that it is not possible to recognize them.

11. Title XII: Of the Separation Benefit Art 1435 Art 1436 Art 1437.