Understanding Oblique Action in Legal Context
Item 10. Oblique Action
Definition: Oblique action is that by which the creditor may, for the payment of what is due, exercise the rights and actions of the debtor, except those that are purely personal to it.
Normative Legal
Oblique action is enshrined in Article 1278 CC: Creditors can exercise, for recovering what is due, the rights and actions of the debtor, except rights which are exclusively related to the individual debtor.
Oblique Nature of the Action
In principle, the oblique action is considered by the doctrine as a conservatorship action because it has to enter a debtor’s assets and rights to certain bins legally possess, thus preserving this heritage as collateral for loans of creditors. However, some authors argue that it has enforceable aspects, since in practice, in most cases, the oblique action creditor intends not only to enter certain property in the assets of his debtor, but to immediately exercise recovery of a claim on the same property.
Rights of the Debtor Who Cannot Be the Subject of This Action
- The extra economic measures (such as divorce, separation, marriage, parenthood, etc.). It is because the exercise of these measures is reserved for the decision of the debtor, even when creditors might have a pecuniary interest in them.
- Property stocks that have a predominant moral character: like the revocation of a donation by ingratitude of the donee, the separation of property. In the first case mentioned, the assessment of ingratitude is a very personal right of the donor, who is the only one who can come to it. In the second case, it is an action that is of heritage but can alter relationships between spouses and family stability, so it is removed from the exercise of creditors.
- The action for repair or moral damages (pain of a mother for the death of a child), but cannot be exercised by the victim, it is highly personal and closely linked to the privacy of the person experiencing it.
Requirements Relating to the Exercise of Agency
Conditions Relating to the Debtor
- The inaction of the debtor: the debtor in an oblique action is negligent in carrying out their actions, i.e. not exercising a right which could lawfully exercise. Not just a simple delay in the exercise of their actions.
- The debtor must be insolvent, not to be, the interference of the creditor constitutes an intrusion abusive, intolerant and contrary to law.
- It is not necessary that the debtor is in default by the creditor, as the oblique action is of a conservatory and unenforceable.
Conditions Relating to the Creditor
- Interest by the creditor, this condition excludes the exercise of oblique action when the debtor is solvent, because in this situation, the creditor will have no interest in increasing the assets of his debtor, since it has the assurance of being paid.
- It must be an unsecured creditor (qualified) or a preferred creditor whose collateral is insufficient to support credit, because if it is a preferred creditor or mortgage with sufficient security, without interest to attempt the action.
Conditions Relating to Credit
- Credit must be certain, liquid and due, a claim is true when there safely, which excludes any conditional claims already. Liquid when you know exactly the amount and extent of the due and payable when the Creed or is entitled to demand payment.
- It is not necessary that the creditor’s claim is prior to the debtor’s date against the third, that credit may be earlier or later date.
Effects of Oblique Action
The creditor, while serving with an inherent right that the law enshrines him, performs the actions of a debtor and not his own. This effect leads to the following consequences:
- The third party sued by the creditor can claim to have it all defenses you have against your lender. The debtor can agree to the third, even against the will of the applicant creditor, who in case the transaction is made in fraud of their rights, is obliged to attempt the Paulian action. The third party may also oppose the compensation that the debtor has against the debtor and any other exceptions.
- The applicant creditor can obtain a conviction for a value far greater than the amount of your own credit.
- The rights and remedies of the debtor against third realization and entering their heritage, and as the debtor’s assets is common pledge of his creditors, the debtor’s assets increase obtained by oblique action benefits not only the applicant but to all creditor other creditors of the debtor.