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Action set aside. Admissibility conditions

The judges from the High Court of Cassation and Justice appreciated (in the Decision no. 4073 dated the 13th of December 2011 pronounced in appeal at the Civil Department II of the High Court of Cassation and Justice having as object the cancellation of a refund loan and real estate sale contract) that due to the provisions of the article 975 of the civil Code (article 1562 of the new civil Code) for the admission of a Pauline action brought by the creditor, in addition to the prove for the  outstanding debt, amount and due and the occurrence of an injury to the creditor in order to cause or grow  his insolvency, it is necessary for him to prove the debtor fraud and complicity to fraud  of the third part whom the debtor signed the fraudulent act. In concrete, the Supreme Court has correctly appreciated that the appeal court considered the cumulative conditions requested by the law for the admission of a pauliene action are not met, because at the time when the real estate contract was signed in the Land Registry or the Trade Register Office records there was not any noting referring to tasks of the building or any other mentions that could led to the conclusion of the fraud complicity from third part whom the debt signed the contract.

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Daniela GHICAJANU

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