NOVATION, AN ILLUSORY UTILITY
NOVATION, AN ILLUSORY UTILITY

Summary/Abstract: The idea of novation involves the transformation of the obligation relationship by extinguishing an old obligation and the emergence of a new obligation.The importance of the novation mechanism in Roman law was indisputable given that in this legal system were not allowed many legal proceedings that today reach the same inconvenient but more advantageous effect for the creditor (e.g., assignment of a claim, personal subrogation and so on). The last decades have urgently called into question the need for the existence of this legal figure. In the context of the complete disappearance of the mechanism in German law, some authors have invoked the futility of the novation, showing that the actual transformation of the obligation can be achieved through other legal operations, while emphasizing the disadvantage of using this legal figure, leading to the loss of the guarantees of the original obligation. Other authors emphasize the need to retain a legal figure collateral to the novation of the obligation, namely the novation of the contract that would benefit from a real practical interest.

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