LA CONDICTIO DE REGRESO POR PAGO DE TERCERO.

Abstract

Save in exceptional cases, a person who pays off another person's debt may take action against the original debtor to recover the sum paid. The right to recovery is regulated in general terms in section 1158 of the 1889 Spanish Civil Code (CC), but it is also alluded to regarding deposits (CC, sections 1838 and 1839) and several liability for obligations (CC, sections 1144 and 1145). This article looks at the right to recovery due to fulfilment by a third person. After an excursus on the persons who hold sufficient legal standing to make payment, the author explores the various positions of law and doctrine concerning the effects of payment by a third person and subjects those views to a critical evaluation. Then the author proposes a unitary construction of the right to recovery due to payment by a third person, which also includes recovery by the surety and the solvent codebtor. Lastly the author examines how closely subrogation through payment resembles debt assignment and refers to the special case of recovery due to payment by the surety.