In the obligatory relations between debtor and creditor, the latter has a credit right against the former, which, concerning the nature and the negotiating title, may or may not be supported by a privilege or mortgage.
Nature of the credits
We remind you that ” unsecured ” credits that do not enjoy any pre-emption and that, in the competition with other credits, are satisfied last; On the other hand, ” privileged ” are those credits that have a preference in the graduation of credits.
In the civil code and the special laws we find several examples of privileged credits, including credits deriving from an employment relationship or credits due for alimony or, again, credits due for direct taxes to the State.
Mortgage loans
Loans secured by mortgages are also privileged over the others, indeed they enjoy particular favor in the division of the debtor’s assets, as they are satisfied first. Among the special mortgage loans, there are those for land, deriving from the granting of mortgages and loans by credit and financial institutions, which are governed by the Consolidated Banking Act, which also regulates the executive phase by establishing a right of the credit institution to ” immediate assignment of the sums obtained from the sale of the mortgaged property.
This is because the mortgage, that is the real guarantee registered on the property with the main deed that gives rise to the debt/credit relationship, such as the mortgage, gives rise to the mortgage lender the right to be satisfied first on the proceeds from the sale of the property, in case of attachment of the same or in case of bankruptcy of the debtor.
Subrogation of the creditor
We speak of “creditor subrogation” or “credit subrogation” when a subject, other than the debtor, pays the debt in place of the latter; in this way, he takes over the position of the creditor, who, once satisfied, can be excluded from the obligatory relationship, in which the new creditor succeeds the previous creditor, while the debtor’s position remains unchanged.
The phenomenon often occurs with regard to mortgage loans, i.e. secured by a mortgage on properties owned by the debtor, in the event that a subject, guarantor or jointly and severally liable, or even simply a third party with respect to the payment obligation, pays off the debt instead of the debtor, subrogating to the mortgage that was already registered on the debtor’s property.
Regulatory discipline
The subrogation discipline is contained in , that is left to the decision of the creditor or the debtor, by the “legal” subrogation , which operates automatically in some cases provided for by law, is disallowed. In particular, based on there is legal subrogation in the following cases:
to the advantage of whoever, being a creditor, even if unsecured, pays another creditor who has the right to be preferred by reason of his privileges or mortgages;
to the advantage of the buyer of a property who, up to the amount of the purchase price, pays one or more creditors in favor of whom the property is mortgaged;
to the advantage of the person who, being obliged to pay the debt with others or for others, had an interest in satisfying it (typical is the case of joint and several co-debtors who pay the entire debt);
to the advantage of the heir with the benefit of inventory who pays the inheritance debts with his own money;
in the other cases established by law.
In all these hypotheses, the one who pays the debt to which the original debtor was obliged, or the debtor jointly and severally obliged, takes over, that is, subrogates, in the credit right of the original creditor; this generally occurs in the event that the credit is secured by a mortgage or other privilege, as there is no interest in subrogating to unsecured credit.
