The actio surrogatoria

Abstract

It is proposed to study the origin, nature, function, requisites and effects of the actio surrogatoria enshrined under section 1143 of our Civil Code. Introduction: From the principle that whosoever has contracted an obligation is liable with all his property present and future, there emerges the faculty of the actio surrogatoria through which the creditor exercises the rights and actions of his debtor. Chapter 1: The origin of the actio surrogatoria cannot be traced under Roman Law as the latter did not empower the individual creditors to exercise the rights of their debtor, it only afforded them a collective action exercised through a common representative. The origin of the actio surrogatoria may be found under the Code Napoleon. Chapter 2: The term actio surrogatoria, is in reality a misnomer, for it is not an action properly speaking, but resolves itself into the attribution of a potesta in favour of the creditor to exercise rights and actions belonging to his debtor, whilst having an immediate effect over the patrimonial sphere of the latter. The function of the actio surrogatoria is eminently conservative: it merely enhances the debtor's estate. Chapter 3: The actio surrogatoria reqmres the subsistence of four essential elements in order to be employed successfully: (a) the plaintiff must be a "creditor", (b) such creditor can only exercise those rights and actions which belong to his debtor and which are not exclusively personal to the latter, (c) the debtor must be inactive; and (d) the debtor's inertia must bring as a consequence a future prejudice to the creditor (periculum damni). Chapter 4: The main effect of the actio surrogatoria is that it inserts the property acquired into the estate of the debtor, and once inserted such property may be availed of by all the creditors of the debtor and not simply by the creditor who took the initiative to exercise the actio surrogatoria. Chapter 5: The actio surrogatoria brings into play three figures: the creditor, the principal debtor and the third party defendant (the debtor of the debtor). All three of them are considered as parties in the suit and they have clearly defined rights and obligations. Conclusion: The actio surrogatoria might at first sight appear to be ineffective, both because it does not grant the petitioning creditor any priority over the property recovered and because the debtor does not lose the power to exercise the right himself and by so-doing putting to an end the potesta of the debtor. However,-·the picture is not so unhappy for the actio surrogatoria must be analysed as a conservative measure intended to defeat the debtor's inertia and enhancing his estate. Our law, archaic in form, has a long way to go, in order to achieve the above result. However, we think that our law is well equipped to cater for such a configuration of the actio surrogatoria and we believe that even in the absence of a legislative amendment our Courts can do much more in order to widen the scope of the actio surrogatoria.