Chapter five
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SCHOOL OF LAW A THESIS SUBMITTED IN THE, CHALLENGES OF CASE MANAGEMENT IN SOMALILAND HIGH COURT
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- B) Effect of delegation on third parties
Rights of the delegateArticle 1980 of the Civil Code lays down the rights of the delegate. They are in fact relatively restricted. Not only must he perform, but he may not oppose the creditor the rights derived from his own relation with the delegator nor the defenses only by the delegator against the creditor. He is only entitled to oppose if necessary his own defenses, deriving from his personal relationship with the creditor. This expression should nevertheless be construed as granting the defenses open to all debtors such cases of absolute nullity. Regarding defenses available for the delegate debtor, they could arise from one of the three relationships. These are the relationship between the original debtor and the creditor; between the original debtor and the delegate; and between the delegate and the creditor. When we see the defenses arising from the relationship between the original debtor and the creditor, you may for instance think of a case where the delegator has a claim that can be set-off with that owed by the creditor. The question here is, can the delegate raise the defense of set-off towards the creditor? He can't set up such defense pursuant to Article 1980(1) of the Civil Code. Defenses may also arise from the personal relationship of the delegate and the delegator. For instance, the delegate may have a claim against the delegator and raise set-off against him. But he may not raise such defense against the creditor as per Article 1980(1). Finally, defenses may also arise from the relationship of the delegate and the creditor. For instance the delegate may have a valid defense of set-off against the creditor. Accordingly the delegate may set-off his debt with the one owed to him by the creditor. Article 1980(2) allows the delegate to raise defenses arising from his personal relationship with the creditor. B) Effect of delegation on third partiesThe final question related to delegation is: what is the effect of delegation on third parties who have secured the debtor upon their property or guarantors? Third parties may be involved in the original contract as sureties (mortgagors, surety givers ). They may give a surety in respect of a precise contract, the one linking the original creditor to the original debtor, and cannot be presumed to have extended into benefit the delegated debtor. Article 1982 of the Civil Code therefore decides that they shall not be liable, unless they consented to the delegation. This is because, they have given a surety in respect of the first contract; the one linking the original creditor to the original debtor and cannot be presumed to have extended it to benefit the delegated debtor. The difficulty here is what happens if for some reason the delegation does not work and the creditor returns to the original debtor for payment. If the sureties have consented to the delegation, they cannot be presumed to have accepted more than the simple substitution of debtor. It follows that if the creditor sues the original debtor after a delegation was consented to, he may not claim the sureties granted by third parties. This would amount to presuming they agreed to guarantee two debtors instead of one. The creditor will thus be prudent and see to it that this eventually is provided for in the instrument embodying the consent of the surety givers to the delegation. Download 53.56 Kb. Share with your friends:
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