682. A contract for the transfer of a debt may validly be
concluded between the transferor and the person in whose favour the transfer is
made alone, provided the transferee, on being informed thereof,agrees thereto.
Example:- A transfers a debt which he owes B, to C, who is resident in
some other country. B agrees thereto. If the transferee, on being informed
thereof, agrees thereto, a valid contract for the transfer of the debt is
concluded.
683. A contract for the transfer of a debt may be concluded
between the transferor and the transferee only, subject to the agreement of the
person in whose favour the transfer is made.
Example:- A transfers a debt owing to him by B to C. C agrees. The contract for
the transfer of a debt has been concluded, subject to the consent of the person
in whose favour the transfer has been made, and if the latter agrees thereto,
such transfer becomes executory.
SECTION II. CONDITIONS RELATING TO TRANSFER OF DEBT.
684. To conclude a contract for the transfer of a debt, the transferor and the person in
whose favour the transfer is made must be of sound mind, and the transferee must
be of sound mind and have reached the age of puberty. Consequently, any transfer
or acceptance of the transfer of a debt by a minor of imperfect understanding is
void, and any acceptance of the of the transfer of a debt by a minor whether of
perfect or imperfect understanding, or whether permitted by his tutor to
undertake business, or whether interdicted, is void.
685. for the contract of transfer of debt to be executory, the
transferor and the person in whose favour the transfer is made must have reached
the age of puberty. Consequently, The transfer or acceptance of the transfer of
a debt by a minor of perfect understanding is dependent upon ratification by the
tutor. If the tutor ratifies, the contract becomes executory. Moreover, if the
minor accepts the transfer of a debt and the tutor gives his permission, the
transferee must be wealthier than the transferor.
686. It is not essential to the validity of a contract for the
transfer of a debt that the transferee should be indebted to the transferor, nor
that the transferor should be entitled to receive something from him.
687. A contract for the transfer of a debt in respect to which a
valid contract of guarantee cannot be concluded, is invalid.
688. Any contract for the transfer of debt in respect to which a
valid contract of guarantee can be concluded, is valid. The subject matter of
the contract must, however, be clearly ascertained. Consequently, any contract
for the transfer of a adept which is unknown is invalid.
Example:- A agrees
to accept the transfer by B of some debt which may be proved in the future to be
due to him. The contract is invalid.
689. A contract for the transfer of a debt incurred by reason of
a guarantee or arising out of a contract for the transfer of a debt may be
validly concluded, in the same way as a contract for the transfer of debts which
have been incurred directly.
CHAPTER II. EFFECT OF A CONTRACT FOR THE TRANSFER OF DEBT.
690. The effect of a contract for the transfer of a debt is that the
transferor, and his guarantor, if any, are liberated from all responsibility for
the debt. The person in whose favour the contract is made then has the right of
demanding payment thereof from the transferee. A pledgee who transfers his right
to claim the debt from the pledge or to some third person loses all right of
retention over the pledge.
691. If any person who makes an absolute transfer of a debt has
no claim against the transferee, the latter may have recourse against the
former, after he has paid his debt. If such person has a claim against the
transferee, the amount of the claim is set off against the debt after payment
has been made.
692. In the case of a restricted contract for the transfer of a
debt, the transferor loses his right to claim on account of the subject matter
of the transfer. The transferee is under no obligation whatsoever to give the
subject matter of the transfer to the transferor. If he does so, he is liable to
make good any loss resulting therefrom. Upon making good, such loss, he has a
right of recourse against the transferor. If the tranferor dies before making
payment, his debts being greater than the value of his estate, the other
creditors have no right to touch the subject matter of the transfer.
693. If a restricted contract for the transfer of a debt is
concluded whereby payment is to be made from the sum to be received in respect
to the price of a thing sold due to the vendor from the purchaser, and the thing
sold is destroyed before the delivery, the price in consequence being no longer
due, or if the thing sold is returned by virtue of a contractual option, or by
reason of an option of inspection or an option for defect, or if the sale is
rescinded, such transfer is not void and the transferee has a right of recourse
against the tranferor after payment. That is to say, he may obtain what he has
given from the transferor. But if any person appears who is entitled to the
thing sold and takes possession of the same whereby it is proved that the
transferee is free from the debt, the contract of transfer is void.
694. If a restricted contract for the transfer of a debt is
concluded whereby payment is to be made from a sum of money deposited on trust
by the transferor with the transferee, and some person appears who is entitled
to such money and takes possession of the same, the contract of transfer is
void, and the debt reverts to the transferor.
695. If a restricted contract for the transfer of a debt in
concluded whereby payment is to be made from a sum of money belonging to the
transferor in the possession of the transferee, and such sum of money is not
subject to compensation, the contact is void and the debt reverts to the
transferor. If it is subject to compensation, however, the contact continues in
force.
Example:- A transfers to C a debt which is due to B, to be paid from
money which he has deposited with C on trust, and such money is lost without any
fault being attributable, before payment is made. The transfer is void and the
sum due to the creditor reverts to the transferor. If such money has been
wrongfully appropriated, or if, being deposited on trust, it has been lost by
the act of C and must be repaid by him, the contract is not void.
696. If any person transfers a debt to some other person and
provides that payment is to be made from the price realised on the sale of some
specific property of his, and such person agrees to the transfer on that
condition, the contract is valid, and the transferee is bound to sell the
property and pay the debt from the price realised.
697. In the case of a vague transfer of debt, that is to say, in
the case of a transfer of debt where it is not stipulated whether the subject
matter of the transfer is payable forthwith, if the debt is likewise payable
forthwith by the transferor. If the debt is payable at some future definite
date, the transfer is of the same nature, and payment must be made when the debt
falls due.
698. There is no right of recourse against the transferor until the transferee has
paid the debt; and when recourse is made, the subject matter of the transfer may
be claimed. That is to say, the transferee takes from the transferor exactly the
same type of money that was the subject of the transfer. He cannot, however,
claim the identical money which has been paid.
Examples:-
(1). Silver money is transferred. Payment is made in gold. Silver money may be
claimed from the transferor and not gold.
(2). Payment is made with goods and effects. The money which was the subject of
the transfer may be claimed.
699. If the subject matter of the transfer is paid, or it is
transferred to some other person, or the person in whose favour the transfer is
made liberates the transferee from the debt, or the person in whose favour the
transfer is made makes a gift of the subject matter of the transfer or disposes
of it as alms and the transferee accepts, he is liberated from the debt.
700. In the event of the death of the person in whose favour the
transfer is made, and of the transferee becoming his heir, the transfer becomes
devoid of effect.