EXTINGUISHMENT OF A CIVIL OBLIGATION BY WAIVER OF A CLAIM AND DEBT RELIEF

Abstract

The article is dedicated to the comparative analysis of the extinguishment of civil obligation by waiver of a claim and by relieving of the debtor of their duties under a debt relief. It is pointed out that Ukrainian scholars now tend to consider the legal construction of debt relief as the only possible way to bindingly waive a claim. The article suggests that such approach leads to a situation when a natural unilaterality of a waiver of claim is groundlessly attributed to a debt pardoning, which is considered as an agreement by the most continental civil law systems. It is further suggested that the idea of equating of waiver of claim with debt relief is based upon a view when the debtor’s duty is put in the very center of the mechanism of obligation extinguishment; and the obligation’s extinguishment is solely regarded from the standpoint of termination of that debtor’s duty. Such approach seems not properly taking into account that a claim is tightly connected with the duty, and both are the elements necessary for the existence of the civil obligation. Due to the fact a civil obligation is constructed as a system of interrelated elements, if any element disappears, the legal bond that once united the parties to the obligation vanishes, thus terminating the existence of the obligation and of all other its elements. The creditor's acceptance of performance of the debtor of their duty must not be ignored since it evidences that the creditor’s interest underlying their claim is satisfied. Using a concept of the “reverse performance”, which was initially introduced by A. Kostruba, the article explains a mechanism of extinguishment of a civil obligation by waiver of a claim, under which the debtor’s duty is terminated as a direct result of the termination of the waived claim. It is noted that by waiving their claim, the creditor executes the subjective right in the obligation for the purpose of satisfying their interest. Therefore, only a “mature” claim, which may be immediately executed, can be waived, in contrast to the debt relief, which could be done at any moment of the lifespan of a claim. It is also noted that the subject of a debt relief shall be the duties of the debtor and not the claim. That may be viewed as a possible criterion of distinguishing a waiver of claim from a debt relief as separate kinds of deals.