Non-Conformity of Contracting Parties in the Performance Stage of Debt and Claim Transfer Contracts: A Comparative Study in the Legal Systems of France, Germany, and England

Abstract

In principle, the performance of contractual obligations is carried out by the obligor in favor of the obligee. However, sometimes what matters to the parties is the execution of the obligation itself, not the person performing or the one receiving the performance. In such contracts, the contracting party may change, through new agreements and within different legal frameworks, and a third party may be substituted as the new obligor or obligee. Debt and claim transfer contracts are recognized in various legal systems, including those of France, Germany, and England, as contracts for changing the contracting party. In France, following amendments to the Civil Code in 2016, these contracts have been formally acknowledged as mechanisms applicable to contractual obligations. In the German Civil Code, although not as extensively as in French law, these legal institutions have been precisely identified. However, in English law, the initial view was that contractual rights were not transferable. Gradually, however, the courts of equity, recognizing the importance of this issue, endeavored to alter this view. Nevertheless, in English law, the institution of debt transfer is often examined under the framework of obligation novation, based on a change of the obligor. Therefore, a comparative study of these institutions familiarizes the reader more thoroughly with these widely used international contracts. Additionally, careful consideration of the established regulations in these legal systems provides practical and precise solutions for domestic legislators to update and enhance the efficiency of the Civil Code.