THE CREDITOR'S FACULTY TO REQUIRE THE ANTICIPATED PERFORMANCE OF THE OBLIGATION IN CASE OF «INSOLVENCY» (ART. 1129 SPANISH CIVIL CODE) AND THE SPANISH BANKRUPTCY ACT 22/2003.

Abstract

This paper deals with the relationship between the creditor's faculty to require the anticipated performance of the obligation in case of «insolvency» (article 1129 of Spanish Civil Code -CC-) and the Spanish Bankruptcy Act 22/2003 (July, 7). It is proposed that: 1) art. 1129.1 CC requires that there is no bankruptcy proceeding; 2) plurality of creditors is an implicit condition of this faculty, and that opening insolvency proceeding is an imminent and inevitable consequence if the event of article 1129.1 CC occurs; and 3) the efficacy of a payment made under article 1129.1 is questionable, regarded the regulation of the actio pauliana in the Bankruptcy Act, and, mainly, since this rule is against the principles that govern the modern insolvency proceeding.