The inapplicability of personal exceptions between joint debtors and creditors, under Romanian and French private law
The inapplicability of personal exceptions between joint debtors and creditors, under Romanian and French private law

Author(s): Juanita Goicovici
Subject(s): Law, Constitution, Jurisprudence, Civil Law, Commercial Law, Comparative Law
Published by: Societatea de Stiinte Juridice si Administrative
Keywords: passive solidarity; joint debtors; personal defences; plural obligations; contractual liability; partial performance;
Summary/Abstract: The paper examines the problematics of invoking personal exceptions between joint co-debtors and the creditors, while proposing a comparative approach to the incidental legal provisions and jurisprudential guidelines under Romanian and French pri- vate law. As stated in a recent decision of the French Court of Cassation (Fr. Cass., 2nd Civ., dec. of 20th May 2021), the guaranteed exception based on the existence of an insurance contract against the risks related to death, concluded by a co-debtor constitutes a purely personal exception to the latter, which cannot be invoked against the debtor by the coobligor jointly liable for the payment of the debt. On the other versant, the provisions of art. 1448 of the Romanian Civil Code omit to make express references regarding the inapplicability of personal exceptions between the joint co-debtors, postulating, in- stead, in the second thesis of art. 1448, para. (1) of the Romanian Civil Code that, against the common creditor, the joint co-debtor cannot use the means of defence that are purely personal to another co-debtor. Viewed in „parallel mirrors”, the provisions of art. 1313 of the French Civil Code capture the attention of the analyst by retaining that “Solidarity between debtors obliges each of those to pay the full amount of the debt. The payment made by one of the co-debtors is releasing the other co-debtors towards the common creditor for the paying of the debt”; following the desideratum to avoid bearing the risk of insolvency of other co-debtors by the debtor who made the payment, the French legislator provided, in the text of art. 1310 of the Civil Code, that such solidarity „cannot be presumed”, except for commercial relations.

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