https://doi.org/10.21697/zp.2025.25.3.01
This paper analyses scholarly discussions regarding the transfer of rights through the operation of law to individuals who have settled another person’s debt and are entitled to seek reimbursement (Zession legal, subrogation). The debates stem from a paradox already known to Roman jurists: the natural consequence of repaying a debt is the extinguishment of the debt and its corresponding claim, logically making it impossible for the claim to be transferred to anyone, including the payer. However, transfer of claim is the primary recourse granted to individuals in the French, Austrian, and German civil codes (and their derivatives). Consequently, legal scholarship faces the challenge of reconciling the transfer of an already satisfied claim with the principle of debt extinguishment through payment, unless we admit an extension of the legislator’s powers to allow for norms that violate the laws of logic. The enduring nature of these discussions, dating back to the enactment of the initial codifications, and their continuation to the present day, serves as evidence of the issue’s ongoing significance. The substantial number of publications on this topic in France since the early 20th century further underscores its relevance. Roman jurists proposed an ingenious way out of the paradox: the guarantor’s offer to extinguish the creditor’s debt should be treated as the purchase price for the claim rather than as a payment for the principal debt. Although widely embraced and promoted by advocates of the Usus Modernus Pandectarum, this idea was entirely disregarded by nineteenth-century legislators. Nevertheless, vestiges of this concept persist in scholarly discussions, albeit rarely are they referenced directly. I argue that contemporary solutions to this paradox, as proposed in the scholarship of the three legal systems I compare can be reduced, in essence, to the Roman concept of the purchase of a claim. The payment made by the person entitled to recourse is ultimately regarded by proponents of these solutions as “satisfying the creditor’s interest in exchange for acquiring the claim,” which effectively aligns with the concept of purchasing the claim.
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