O protivpravnosti cesije u blokadi: prilog teoriji o postojanju zabranjenih ugovora koje ne prati sankcija ništavosti

Abstract

The author tries to resolve а legal issue raised in Serbian court practice: does the norm that prohibits the settlement of a monetary obligation via assignment of claims, in situations where the assignor’s account is blocked for the purpose of forced collection, represent by nature a norm: lex plus quam perfecta, or a norm: lex minus quam perfecta (Article 5 of the Law on Payments by Companies, Entrepreneurs and Natural Persons). According to the Serbian Supreme Court of Cassation, the misdemeanour liability for infringement of the prohibition of assignment cannot exclude the absolute nullity of legal transaction as a civil sanction, as specified in Article 103 of the Law on Obligations. On the contrary, the author argues that the repressive and preventive purpose of interpreted legal rule is achieved by the enhanced penalty, while the legal transaction undertaken contrary to the prohibition remains valid and in force.