Case 3: promises to pay debts not legally due

2271, 2272, and 2273. In these situations, a presumption arises that a debt was paid. It is then possible to prove that no payment was ever made. Among the admissible pieces of evidence is any type of acknowledgment from the debtor that he did not pay his debt. Ian’s promise to pay would definitely be regarded as such an acknowledgment. Anna could, consequently, claim the original debt, and Ian’s new promise would only be taken into account as a piece of evidence.

The so-called normal prescriptions prevent the creditor from suing his debtor when he is not legally bound any more. However, case law has always considered him to be a ‘natural debtor’ of his former creditor.2 Consequently, the same rules apply as in Case 3(a). His new promise makes his debt become legally binding again.

In Case 3(c), Ian was too young to be bound by contract. The promise he made was voidable.3 Nevertheless, because he promised again when he was an adult, Anna may be able to enforce the contract. It depends on whether or not Ian brought an action to have the contract rescinded.

Even if he brought such an action before making a fresh promise to pay, the rescission of the contract does not have a final effect under French law because debts declared void by a court have been recognized as another instance of ‘natural’ debts.4 In order to fit into this category, the minor had to be aware of what he was doing when he entered the first contract. Otherwise, not even a natural debt will remain. If he was aware, the rules on natural obligations already discussed will apply, and the new promise will make the natural debt become a legal one and therefore enforceable.

On the other hand, if Ian has not brought an action to rescind the contract before making a fresh promise to pay, then the original promise will remain valid as long as he does not do so. In contrast, debts discharged in bankruptcy (see Case 3(a)) or barred by the passage of time (see Case 3(b)) are no longer valid even when a court has not intervened, unless, as we have seen, a new promise has been made. Nevertheless, Ian could still challenge the contract and ask for its rescission at the time that Anna sues him to enforce it unless he has already made a new promise to pay the debt.

If he has made such a new promise, it will be deemed to confirm the original voidable contract. Under French law, art. 1338 of the Civil Code has been broadly construed to allow some voidable contracts to be

90 the enforceabilit y of promises

confirmed and thereby become unchallengeable.5 They include contracts voidable because of a vitiating factor or because a party was too young to enter a contract, as is the case here.

belgium

In Case 3(a), Ian is freed from all debts at the conclusion of bankruptcy proceedings. By making the promise, however, Ian is fulfilling a natural obligation which the promise converts into a civil obligation (see Cases 1 and 2). Anna can therefore enforce it.6

In Case 3(b), the debt is barred by the passage of time. Passage of time does not affect the existence of the debt itself but only whether its payment can be required (exigibilité). Accordingly, one who pays such a debt does not have the right to be reimbursed.7 Recently, the Cour de cassation applied the same line of reasoning to a promise to pay such a debt. It repeated that the passage of time does not affect the existence of a debt but only whether the debtor can be required to pay, and added that the obligation to pay does survive as a natural obligation.8

In Case 3(c), Ian’s debt is invalid since it was incurred when he lacked legal capacity because of his age. Nevertheless, the invalidity is ‘relative’. ‘Relative’ invalidity means that a debt is voidable and that its invalidity may be asserted by the person for whose protection the law regards it as invalid: in the present case, the minor or his legal representative. In contrast, the invalidity of a debt would be ‘absolute’ if it is void for everyone and the judge must regard it as invalid even though nobody claims that it is. In the present case, an action to avoid the debt is time-barred unless it

5Flour and Aubert, Droit civil no. 349, p. 250; Terré, Simler, and Lequette, Les obligations no. 373, p. 313.

6See Van Ommeslaghe, Droit des obligations, 361, discussing a situation in which a debtor obtains a release of 50 per cent of his debt, as a result of a legal settlement with his creditors (concordat), but the debtor nevertheless pays everything back. The debtor cannot

recover the 50 per cent from which he had been freed. 7 Cass., 22 Sept. 1986, JTT, 1987, 42.

8Cass., 14 May 1992, Pas., I, 798. In this case, a lessee owed rent, some of which had not been paid since 1979. (The period for prescription in the case of a lease is one year.) The lessor demanded payment in 1985. The lessee responded by a letter in which he acknowledged all his debts and made a partial payment. The trial court required the lessee to pay the total amount of rent due since 1979. The Cour de cassation affirmed, holding that the letter of the lessee acknowledged all the rents, even those which had become time-barred, and that it transformed a natural obligation into a civil obligation to pay the rent that was time-barred. See the comments of S. Stijns, D. Van Gerven, and P. Wéry, ‘Chronique de jurisprudence. Les obligations: les sources (1985–1995)’, JT, 1996, no. 6.

is brought within ten years of the day on which the incapacity ceased (see art. 1304 of the Civil Code). The action is time-barred after that period because it is presumed that the debtor has confirmed the debt. If the debtor confirms his intention to pay the debt after he is old enough to have legal capacity but before it is time-barred, then the debt ceases to be invalid and no action to avoid it can be brought.9 Consequently, Ian’s promise to pay his debt can be enforced.

the netherlands

In Cases 3(a) and 3(b), there is a natural obligation.10 A natural obligation can be transformed by making a promise into an enforceable obligation (art. 6:5(3) of the Civil Code). The transformation of a natural obligation into an enforceable obligation is not a gift (art. 6:5(3)). Therefore, the formal requirements described earlier need not be met (see Case 1).

In Case 3(c), Ian had a contractual debt to Anna which was unenforceable because Ian was too young to be bound by contract. This is a casus non dabilis under Dutch law. Incapacity makes the contract voidable (art. 3:32(2) of the Civil Code11). After avoidance there remains no obligation, either civil or natural. Therefore, if there is no counter-promise from Anna, Ian’s new promise is a gift which is unenforceable, because the formal requirements are not met (see Case 1). If Ian has not had the contract avoided, he may confirm it now (art. 3:55(1)12). But this confirmation is a gift if Anna promised nothing in return.

spain

Case 3(a) could not arise under Spanish law because debts are not discharged by bankruptcy proceedings. Article 1920 of the Civil Code provides: ‘In the absence of express stipulation to the contrary between the debtor and his creditors, the latter shall retain their right, following the insolvency proceedings, to collect the uncollected portion of their debts from the assets that the debtor might thereafter acquire.’

9See C.-L. Closset and F. Lainé, Répertoire notarial, les personnes, vol. I, A capacité juridique en général (1986), no. 105.

10See Asser/Hartkamp, vol. I, no. 70.

11Article 3:32(2) of the Civil Code: ‘A juridical act of an incapable person may be annulled

. . . ’

12Article 3:55(1) of the Civil Code: ‘The power to invoke a ground for annulment in order to annul a juridical act lapses when the person in possession of this right confirms the juridical act after the prescription period for the action to annul upon that ground has started to run.’