Substitution of debtor in obligatory legal relationships

Abstract

The author pays attention to the issues of the dynamics of obligatory relationships, providing the possibility of their participants’ substitutions. It is noted that the content of the current civil legislation of Ukraine creates grounds for identifying the notions of “substitution of the debtor in the obligation” and “transfer of debt”, which is unacceptable. The author draws a distinction between these notions, alleges that the transfer of debt is only one of the reasons for the substitution of the debtor in the obligation.
 Due to the fact that a basic factor that resulted a perception of the synonymy of the notions “replacement of debtor” and “translation of debt” is an imperfect formulation of Art. 520 of Civil Code of Ukraine, in a perspective legislation it is necessary substantially to extend the grounds of replacement of debtor in an obligation.
 It is expedient to define in text of this norm, which one legal facts, that entail legal succession, also result in replacement of debtor in an obligation. These facts may include: inheritance, reorganization of legal entity by confluence, joining, division and transformation, allotment that is not the type of reorganization by the law, agreement on transfer of debt.
 The grounds for replacing the debtor (in part of transferring debts) should be considered a transfer of contract providing for the transfer of rights and obligations in a mutual obligation; acquisition of rights of the enterprise as a single property complex, which may include debts under part 2 of Art. 191 Civil Code of Ukraine; changing the owner of the thing that is the subject of the contract, as a result of which the acquirer becomes the assignee of the party both in terms of rights and duties (part 4 of article 358, part 1 of article 770 of the Civil Code of Ukraine); other grounds defining features of the succession of obligations.
 A critical attitude was expressed regarding the expediency of introducing into civil law such a ground for replacing a debtor as accepting a debt. It is argued that acceptance of a debt can be understood as an extremely wide area of different legal relationships, that could be associated with substituting the previous debtor with a new one and causing succession, or aiming at changes in the subjects, not connected with the substituting of the debtor and not causing the emergence of the succession. Attention is paid to the peculiarities of judicial practice in the field of application of the legislation on the substitution of a debtor in obligations.