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Published online by Cambridge University Press: 18 May 2010
Case
Ian, now solvent and an adult, had once owed money to Anna that she could not claim legally because (a) Ian's debt had been discharged in bankruptcy, (b) the debt was barred by the passage of time (by prescription or by a statute of limitations), or (c) the debt was incurred when Ian was too young to be bound by his contracts. Ian now promises to pay the debt. Can Anna enforce the promise if he changes his mind?
Discussions
FRANCE
In Case 3(a), Ian's debt to Anna was discharged in bankruptcy. Under French law, although he is no longer legally bound and cannot be successfully sued, he remains ‘naturally’ bound. His obligation is not purely moral. If he promises to pay, the debt will become legally due again.
As noted in discussing Case 2, this theory of natural obligations has been developed by case law, and is considered to be an implication of art. 1235 of the French Civil Code. As a consequence, there is no closed list of natural obligations, but French academics agree that a debt discharged in bankruptcy is among them.
In Case 3(b), in which the debt was barred by the passage of time, it is not possible to give a quick answer. French case law has distinguished two types of prescriptions that take place under the French Civil Code: presumed and normal prescriptions.
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