Satifying Claims of the Creditors of Personal Companies from the Properties of the Partners - de lege ferenda. Postulates

Abstract

The paper is divided into a few parts. Apart from the introductory remarks, it has presented the principles of satisfying the claims put forward by the creditors of a company, or the principles of satisfying the claims from the properties of spouses according to the resolutions of the family and welfare code. The fopurth part contains some de lege ferenda postulates dealing with how to satisfy the claims from the properties of spouses-partners. The paper closes with a list of the most important conclusions. Certainly, the principles concerning the possibilities of satisfying the claims of the creditors of a company from the common properties of spouses-partners do not properly protect the creditors’ interests. It seems that the postulates to extend liability on the common property are not likely to be implemented in the current property system, that is the system of property. For the basic principle of that system is the protection of common property. Under the current legal system one should consider the institution of the so called books of marital power which was predicted by the pre-war projects of marital property law. Owing to those books, the creditor would know whether his debt concerns common property or separate property. In the case of the latter he himself would meet the risk resulting from his limited possibilities to satisfy the claims from common property. The books, and that is their indubitable value, would also eliminate the problems connected with the determination to whom particular property components of the spouses belong. Independently, however, of the questions related to the satisfaction of the claims by the creditors from the spouses’s properties one should present a catalogue of legal actions now, the actions that deal with the common property of the spouses and extend common management. It is impossible to give a complete catalogue of such actions, therefore one should deem it purposeful to enumerate them, listing, among other things, selling off and charging immovable, incurring loans, accepting and relinquishing legacies, or, eventually, contributing to a company from one’s property.