Brief review of the formal requirements for the enforce-ability of a pledge on credits to the debtor’s bankruptcy

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Formal requirements for the enforceability of a pledge on credits to the debtor’s bankruptcy

Opponibilit? by the pledgee creditor of a pledge of credits, such as for example the one constituted by bonds, to the debtor’s bankruptcy? subjected, under penalty of ineffectiveness, to the observance of the conditions foreseen by the art. 2800 CC, even if the conditions for the exercise of the revocatory action by the trustee do not exist.

Therefore, why? the Rich Blends can rely on the pre-emption by the creditor in the pledge of credits, the following situation must arise:

a) the pledge must be in writing;

b) the pledge must have been notified to the debtor of the pledged credit;

c) the pledge must have been accepted by the debtor of the pledged credit with a certain date.

The subject of this brief study? the condition indicated in the previous point b).

In fact, often in the field of activity banking the notification of the lien to the debtor debtors? carried out by means of a simple communication sent by registered letter.

This communication, if not? followed by formal acceptance of the pledge by the third debtor made in writing with a certain date, not? opposable to the debtor’s bankruptcy and, therefore, the pledgee does not have Rich Blends to the pre-emption, his credit becomes a chirograph. How much has he possibly cashed can he? (will have to) be acquired in the bankruptcy assets by the curatorship, in the interest of the mass of creditors, since result of a void title (the right of first refusal) for violation of the law (for failure to comply with the mandatory conditions for the validity of the pledge envisaged by the art. 2800 CC).

Indeed, the pledging of a credit? something different from the sale, which does not require the latter to have any particular formalities? of notification to the assigned debtor, proving sufficient, in the relationship between the parties having as object the transfer of the credit Rich Blends to a subject different from the original creditor, that the debtor is made aware of it (of the assignment of the credit).

Pledging of a credit

The pledging of a credit, on the other hand, has the purpose of constituting a guarantee, attributing to the creditor a special privilege under which he can, by overcoming the principle of the Creditomo Perc at the base of the bankruptcy, satisfy himself by outside the execution of the competition.

The jurisprudence on the subject holds that the simple communication (for example by registered letter, as in the case of the assignment of a credit) does not complete the notification requirement, expressly provided for by the art. 2800 CC: is it, therefore, a consequence that all the times in which the pledging of a credit is not notified to the third debtor through a bailiff? or accepted by the debtor is debtors with a writing with a certain date – the preemptive reason does not exist because? the pledge does not? opposable to third parties, in the case of the debtor’s bankruptcy (to the mass of his creditors).