This document provides a comprehensive analysis of the Paulian and oblique actions in the context of creditors' protection, highlighting their differences and limitations. Written for law students and professionals, this study aims to provide a deeper understanding of the complexities surrounding these actions. From the implementation of the oblique action to the specificities of the Pauline action, this document delves into the intricacies of creditor protection in civil law.
Extract
[...] This is not something that the Paulian action includes in its conditions. The claim does not even need to be established in an enforceable title because the oblique action is not an enforcement measure. For the claim to be implemented, it must be certain, liquid and enforceable. There must be no doubt as to its existence, the amount must be quantified and can be claimed. These are therefore quite simple conditions of application, and the condition of liquidity is also appreciated in a rather flexible way by the jurisprudence, which makes it easier for creditors. [...]
[...] To exercise the paulian action, the creditor must demonstrate that at the time the challenged act was passed, their right to claim existed. This is a condition that is considered quite flexible because it is enough that there is a certain claim on the day of the criticized act. The subjective element is for the creditor to demonstrate the debtor's fraudulent intention. Fraud is not necessarily the intention to harm, according to the jurisprudence it results from the sole knowledge that the debtor had of the prejudice he caused to the creditor by becoming insolvent. [...]
[...] It considers the Pauline action as a powerful instrument of protection of the general pledge right. However, another action is often put in competition which allows to fight insolvency but with a degree of effectiveness considered as more variable. In fact, the indirect action can be defined as a right for a creditor to exercise the rights and actions of his debtor considered as negligent in order to preserve his own right to payment. The Pauline action on the other hand allows a creditor to have declared inapplicable to him the fraudulent acts committed by his debtor with the intention of organizing his insolvency. [...]
[...] It requires certain conditions to be applicable. The action is only receivable if, at the time the judge rules, the creditor justifies a certain debt. This is not the case when a recourse has been engaged and is ongoing, to contest the debt (1st Civil Chamber May 2013). In practice, it is an act of impoverishment of the debtor, which is understood to be one that deprives the assets of a good without compensation or without sufficient compensation. This is an objective element that is expected. [...]
[...] This principle of relative effect can be seen as a pressure tool that will encourage creditors to act quickly to protect their rights. However, this relative effect has a certain limit. It can be seen from another point of view, this absence of collective effect would have allowed all creditors to benefit from the actions taken by one of the creditors. The Paulian action is advantageous for the plaintiff creditor, but it does not provide a global protection for the entire group of creditors in the same situation. [...]
