What is subrogation by the will of the creditor or debtor?


Issues relating to the relationship between creditors and debtors are debated much more often in times of economic crisis such as the one we have not yet managed to put behind us. Indeed, those who have a credit try to understand how they can recover it more easily and quickly, while on the other hand, debtors try to understand if and how to get more time to pay or to identify a way out of the moment of difficulty. In this regard, it should be emphasized that it happens many more times than one might imagine that a debt is honored (i.e. paid) not by the debtor but by a person (so-called third party) extraneous to the relationship that gave rise to the debt. This, i.e. the payment of the debt by a third party, is a phenomenon that can happen for a variety of reasons such as, for example, the fact that whoever pays (the so-called surrogate) was in turn debtor of the debtor and, by paying his debt, ends up extinguishing his own. But beyond the reasons that can actually induce a person to pay the debt of others, ask yourself what is surrogacy means to fully analyze the different cases in which surrogacy can take place according to the law In a nutshell, the current regulations identify three fundamental types of subrogation: subrogation by the will of the creditor, subrogation by the will of the debtor and legal subrogation. We will therefore verify these three fundamental types of subrogation by analyzing their main characteristics and the rules to which each of them is subject.

What is subrogation by the will of the creditor?

We have said that in general, the subrogation is nothing more than the payment of the debt by a third party.

And we have already highlighted that the forms of subrogation are different: one of these is subrogation by the will of the creditor.

It consists in the fact that the creditor, who receives the payment of what is due to him from a third party, subrogates him in his rights towards his debtor: it is necessary that the subrogation be made expressly and simultaneously with the payment (it is not allowed, that is, a tacit subrogation, i.e. made in such a way as to be hidden from the original debtor ).

If the subrogation occurs by the will of the creditor, it, therefore, happens that the creditor, who receives the payment of the amount due to him from a third party, subrogates him, at the same time in which he receives the payment, in his rights towards the original debtor in a manner such that from that moment on the surrogate – that is, the third party who paid – will be the holder of a claim against the original debtor (completely identical to that which existed between the creditor and the original debtors).

Subrogation can take place at the will of the creditor

What is subrogation by the will of the debtor?

A different form of subrogation is subrogation by the will of the debtor.

It occurs when the debtor, who borrows a sum of money or something else to pay his debt, subrogates the lender (i.e. the person from whom he borrowed the money) in the rights, i.e. in the position, of his original creditor even without the latter’s consent.

More specifically, subrogation by the will of the debtor requires that:

the loan agreement and the receipt of the original creditor (who received the payment of what was owed to him thanks to the sum borrowed from the debtor) must result from a deed that has a certain date (substantially through registration);

in the loan agreement it must be clearly specified that the sum taken out as a loan was intended to extinguish the debt that the borrower had towards the original creditor;

in the receipt with which the creditor declares to have been paid, the debtor’s declaration must be inserted indicating the origin (obviously from the loan) of the sum used to make the payment.

Under these conditions, therefore, once the debtor has paid his creditor with the borrowed money, the debtor can subrogate the lender in the position of his original creditor with the consequence that, from that moment on, the original debtor will be obliged towards the person who lent him (as a loan) the money used to pay the original creditor.

Subrogation by the debtor’s will does not require the consent of the original creditor

What is legal subrogation?

Finally, there is the legal subrogation that occurs, that is, by law (automatically) in the cases indicated by the law listed below:

i.e. of one of those causes that allow a creditor to be preferred to others in the distribution of what can be obtained from the sale of the debtor’s assets): in this case, therefore, the creditor who pays the other creditor, is subrogated in his position towards the debtor (i.e. takes the position of preference of the creditor to which he made the payment);

for the benefit of those who buy a property and pay one or more creditors who have a mortgage on the property (the buyer of the property in this way takes the place, i.e. subrogates, in the rights that the creditors holding a mortgage on the property, by paid him, they had against the debtor);

to the advantage of whoever pays the debt of another subject on condition that whoever paid is obliged, with others or for others, to make that payment (for example because there was previously a relationship that linked whoever paid to the debtor);

to the advantage of the heir who accepted with the benefit of inventory (to avoid having to pay the debts of the deceased as well) and who paid with his own money the inheritance debts (in this case the heir who accepted with the benefit of inventory subrogates himself to the rights of the creditor of the inheritance in respect of the inheritance, i.e. he becomes the creditor of the mass of the assets that constitute the inheritance);

in a series of other cases indicated by the law (for example the insurer, in the non-life insurance, is subrogated against the persons responsible for the damage after having paid the indemnity to the insured and, therefore, will become a creditor towards the persons responsible of the damage of the sum corresponding to the indemnity paid by him to the insured.

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By Michael Caine

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