Abstract

Formal Capacity in the Law of Obligations

Summary

The author of this article presents the principles of identification of the person to whom a debtor can pay in order to free himself from the obligation. According to the general rule the debtor performs his obligation by satisfying the creditor that is personally known to him. It is not possible however in case of an alienation of the debt. In such a situation the person demanding payment of the debt must prove his right to the debtor, unless there were certain formal indications letting the debtor free from an obligation by paying him. Such formal indications are used mainly in securities which are easily saleable, but also can be met in the general part of the obligation law (for example in articles 464 and 512 of the Civil Code). In case of securities they result from the content of the document which indicates the person entitled to be considered a creditor in three ways: it may contain his name and is alienated by an assignment, they may be securities upon a mandate alienated by an endorsement or securities to a bearer.

In public trading securities are submitted to dematerialization and they do not exist as documents, so they lose their „identifying function”, which is gained by securities accounts and depositary certificates showing the state of the account.