A Legal Analysis Of Assumption Of Debts

The legal legislation, doctrine and practice in mainland consider debt to be transferred. The present debts assignment system, built on the assumption that debts can be transferred, is equal to debts transfer contract. Debts transfer contract takes effect subject to the consent of the creditor. Rights are the behavior option qualifications ascertained by law with no personal attribute that can be transferred. Obligations are the action enforcement qualifications ascertained by law that can not be transferred. Thus, debt which belongs to persona certa obligation can not be transferred. The objects of disposition actions are not rights but obligations. The common saying that debt can be transferred and debts assignment system is equal to debts transfer contract has mixed up the relationship between rights and obligations. Debt can not be transferred and the transfer of debt is not equal to debt assignment. In fact, debts assignment includes the following actions: first, the third party promises the debtor to pay off the debt to the creditor. The promise will take effect when it reaches the debtor. If there is no consideration, the promise can not constitute to be an offer and the debtor must request the third party pay off the debt to the creditor or other exemption actions according to the promise. If there is consideration, the promises and the debtor will compose a contract, not debt transfer contract, which will take effect in despite of the consent of the creditor. Second, the third party promises the creditor to pay off the debt for the debtor. The promise will take effect when it reaches the creditor. If there is no consideration, the promise can not constitute to be an offer and the creditor must request the third party pay off the debt to the creditor or other exemption actions according to the promise. If there is consideration, the promises and the creditor will compose a contract, not debt transfer contract, which will take effect in despite of the consent of the debtor. Third, the debtor is exempting from debts by the creditor. Debts of debtor eliminates because of the exemptions.The organization of the thesis is as follows: The present assignment of debts system, built on the assumption that debts can be transferred, is equal to debts transfer contract. The author has questioned the assumption and raised three research questions: (1) whether the debts can be transferred or not? (2) What does the party mean rather than say in the process of debts transfer? (3) How to analyze debts assignment in nomology? Chapter two is the literature review on the theory framework of debts assignment system where the author has reorganized the traditional opinions on assignment of debts system and then summarized the drawbacks. Chapter three introduces the assignment of debts system doctrine and makes a comment. The author has found out that the six doctrines on the legal nature of debt assignment are of no thorough discussion. Chapter four discusses the analysis of debts assignment in nomology which is unfolded upon the three research questions, i.e. (1) why the debts can be transferred? (2) What does the party mean rather than say in the process of debts transfer? (3) How to analyze debts assignment in nomology? Chapter five is the conclusion: transfer is not an existence of debt in nomology, debt assignment belongs to other behaviors.