Seizure of future credits
Given the socioeconomic situation that the country has been going through for almost a decade now, , unfortunately, the creditors of a certain debt each time It has become more difficult for them to collect and recover it.
On many occasions we can find debtors who, although at the time of accrual of the creditor’s collection right do not have realizable assets in their name, if they hold a future credit right or rights.
The question is:
Are future credits owned by the debtor subject to seizure?
In this sense, we must pay special attention to the article 588 LEC that maintains the nullity of the indeterminate seizure, that is, the nullity of the seizure of an asset whose effective existence is not proven< /strong>.
Similarly, article 592 LEC in relation to company seizures contemplates as seizable assets credits, rights and realizable values in the medium and long term.
In this sense, art. 1911 of our Civil Code establishes the principle of universal patrimonial responsibility of the debtor by providing that for compliance with the obligations the debtor is liable with all his assets, present and future. p>
Therefore, the creditor of a certain debt for the satisfaction of a legitimate interest can request the seizure and execution of future credits (assets) of the debtor
Of course, our jurisprudence is unanimous in affirming that for the seizure of a future right to proceed, it must unequivocally suppose an initial cause generating a patrimonial right that in the future can be consolidated and enter definitively into the patrimony of the seized debtor.
Regarding the possibility of seizure and realization of certain future credit rights, the jurisprudence has been establishing the following:
- The rights derived from work not liquidated, because their effective existence is established, since the ownership of the right, both actively and passively, is delimited.
- The consolidated rights, such as the pension plans, cannot be seized until they become effective, that is, until the circumstance that makes them true ( retirement, disability…), since prior to the incident or risk in question, its realization in the future is uncertain.
As we can see, anuncertain right cannot be seized, but until the event provided for its realization occurs
In its judgment of July 9, 2001, the AP Barcelona clearly differentiates the moment of seizure of certain types of rights whose certainty depends on a fact future and uncertain:
“… under the old LEC EDL 1881/1 as well as the current EDL 2000/77463 an asset cannot be considered seizable uncertain right, such as the so-called consolidated right, which precisely cannot be seized until the event provided for in the plan for its realization occurs, as in the event of illness, retirement and unemployment; but until that precise moment it is not a certain right and, therefore, seizable. Therefore, it is not included in any of the cases of article 1447 of the LEC of 1881 EDL 1881/1, not even in number 9 of the aforementioned precept EDL 1881/1 because the realization of the right in the future is uncertain; nor does the embargo fit under the new LEC articles 605 and following EDL 2000/77463. All this without prejudice to the right to seize the consolidated right at the moment in which this can be made effective due to the provision”
