Whether fiduciary payment constitutes “debt entry”

2022-05-30 0 By

Chen has supplied cotton yarn to Lu for many times. In 2021, Lu and Chen checked accounts and formed a statement.After Lu’s brother Shi was entrusted by Lu seven times to pay Chen.Due to the failure to pay all the payment, Chen appealed to the court to request Lu and Shi to jointly repay the remaining payment of more than 500,000 yuan.Shi argued that the act of entrusted payment could not be identified as debt accession, and the lawsuit against him should be rejected.The first view is that the behavior of Shi paying for Lu as many as seven times is the ratification of the performance of the sales contract, and its behavior should be identified as debt joining, and should bear the responsibility of joint repayment.The second view is that although Shi has paid seven times, because of his special status relationship with Lu and his payment is entrusted by Lu, it cannot simply be considered as debt accession.Shi did not explicitly express the intention of joining the debt, so it should not be regarded as joining the debt, and Chen’s lawsuit request should be rejected.I agree with the second view, for the following reasons: debt, also called coexist on theory of liability, refers to a third person tripartite agreement with creditors, the debtor or the third person to reach a mutual agreement with the creditor or a third person to the creditors’ unilateral commitment by a third person to perform the debt of the debtor, but at the same time do not undertake the way forgive the debts of the debtor fulfil his obligations.Civil code added in the chapter “the change in the contract and transfer” the rules of the debt to join, the third person and notify the creditors and the debtor agreement to join debt, or a third party to the creditors’ willingness to join the debt, the creditor have no within a reasonable period made it clear that rejected, the creditor may request the third party within the scope of its willing to take on debt and the debtor shall be jointly and severally liable.There are three requirements for debt joining: first, the debt is transferable;Second, the parties reach an agreement on joining the debt;The third is the consent of creditors.The word “accession” reflects the essential characteristics of debt accession, that is, the increase of the number of debtors, that is, the third party undertakes joint and several debts with the debtor within the scope of the debts it is willing to undertake.In the accession of debt, the intention of the third party is the core element.Specifically, in this case, Shi paid according to Lu’s requirements, combined with the basic facts of the occurrence of the debt and the formation process of the statement, Shi did not show the intention of joining the debt, so it can not be regarded as joining the debt only by shi’s behavior of payment, so Shi’s defense is established.The expression of the intention to join the debt shall be based on the statement of the parties, the form of liability undertaking, the actual performance of the debt afterwards, and the principle of balancing the interests of all parties.In judicial practice, if the third party has made a clear intention to assume the debt to the creditor, it should be regarded as debt accession.