The legal transaction by the debtor to the detriment of the creditor as the subject-matter of the actio Pauliana

Abstract

The aim of the paper is to interpret Article 527 § 1 of the Civil Code in the scope in which this provision stipulates "legal transaction" as a legal basis for acquiring a financial benefit by a third party from the debtor. The authors focus on the issue of disloyal debtors' use of procedural instruments with particular emphasis on the defendant's procedural passivity resulting in the award of the claims in accordance with the statement of claim or the issuance of a default judgement. To conduct the analyses, the derivative conception of legal interpretation was used. The paper shows that the term "legal transaction" within the meaning of Article 527 § 1 of the Civil Code includes not only standard legal transactions, but also enforcement orders obtained by a third party by means of proper procedural instruments, including taking advantage of the debtor's passivity in a fake lawsuit brought against him by a third party. This result of the interpretation (in the form of an extended interpretation) is thoroughly justified by both functional and systemic interpretation directives.