Legal tip 27: Keys back to the Bank: a right.
15 January 2009 @ 14:51
Dación en pago ( dation in payment) is not something that you will luckily and graciously obtain by the "wonderful mercy of the Bank" BUT A RIGHT, out of provisions 1175 et seq of our Civil Code:
The debtor is entitled to transfer their assets to creditors in payment of its debts. This dation, unless otherwise agreed, will only release him from liability for the liquid amount of the value of transfered assets. Any agreement on the effect of these dations concluded between the debtor and its creditors will be done according to provisions of Title XVII of this book, and according to what is stated in the Code of Civil Procedure.
The offer of payment and the assignemt for collection
If the creditor to whom the offer was made refuses to admit it with no reason given, the debtor will be free of responsibility by the assignment of the good.
For the assignment of the good to be effective, the debtor must firstly announce it to those people interested in the obligation.
The assignment will be uneffective if it does not strictly conform to the rules governing the payment.
The appropriation will be made by depositing the goods before the judicial authority, to whom the offer will be credited in some cases, and /or the announcement of the assignment in others. Once the assignment is made, it will have to be announced to interested parties.
The costs of the assignment , where appropriate, will be paid by the creditor.
Once the assignment has been duly made, the debtor may request the court to cancel the obligation.
While the creditor has not accepted the assignemt or the approval of the Judge has not been made,the debtor may withdraw the assigned good or amount, leaving the obliagtion remaining.
Once the assignment is made and the creditor allows the debtor to withdraw the good or amount, the debtor will lose any preference on the good. The co-debtors and guarantoors will also be free of debt.
By Maria L. de Castro
Castellar ( Cádiz) reservoir. By Luis Lopez-Cortijo