On the negative moral assessment of the debtor’s and third party’s conduct as a premise for actio Pauliana

Abstract

The paper presents the thesis according to which the immoral (or at least morally indifferent) nature of the debtor’s action is a prerequisite for actio Pauliana. Consequently, the defendant (third party) may raise the defense of the debtor’s moral behaviour. If the debtor’s conduct complies with moral standards, the legal act could not be regarded as detrimental (relevant to actio Pauliana), even if it resulted in the creditor’s detriment. The acceptance of the possibility of raising the defence seems necessary from the perspective of the axiological coherence of the legal system. Adopting the proposed interpretation result would also ensure an appropriate balance in the implications of the use of non-linguistic interpretation directives in relation to the provisions constructing the institution of the actio Pauliana. Should the accuracy of the above argument be acknowledged, Article 527 para. 2 of the Civil Code would, in fact, construct a presumption of the debtor’s immoral behaviour. It would be difficult but not impossible to refute the presumption in practice.