Preamble

Any serious attempt to harmonise the various European civil laws needs to take into account the different regional laws, such as those of Scotland or Catalonia. Taking the Paulian action as an example, and adopting a historical and comparative approach, this chapter aims to demonstrate that most modern legal systems tend to coincide in some of the remedies they provide, and also that the regulations found in Catalan regional civil law can act as a model for a future unified regulation of the legal protection of the right of credit.

Roman law: fraus and restitutio

The origins of the actio pauliana – an action that originated in Roman law for the protection of creditors against the diminution of assets brought about by their debtors – is not at all clear. Having said that, lengthy discussions founded on fragmentary and contradictory Roman sources have taken place within classic law about the identity and number of available remedies for the defence of creditors against fraudulent acts by their debtors, and the effects of such remedies. Current opinion seems to suggest that the phrase actio pauliana conceals a Justinian fusion of two classic rem-edies for the protection of creditors: (i) in integrum restitutio ob fraudem; and (ii) interdictum fraudatorium. Paulian action, forged in Justinian's compilation, presupposed two assumptions: (i) eventus damni or detriment to the creditor – arising from the debtor's diminution of assets as a result of an act of gratuitous alienation by the debtor; and (ii) consilium fraudis or intention by the debtor to defraud the creditor's rights by diminishing the debtor's saleable assets, generally thought to occur in conjunction with the acquirer's knowledge of such intention or scientia fraudis.