Does the debtor s consent be required for debt assumption?

Assumed liability refers to the legal phenomenon in which the creditor or the debtor transfers all or part of the debt to a third party by entering into an agreement with a third party to transfer the debt without changing the contract.

Debt assumption can be divided into exempt debt assumption and concurrent debt assumption according to the criterion of whether the original debtor is exempt from liability after assumption.

1 Exempt Assumption of Liability. It means that the debtor transfers part or all of its debts to a third party with the consent of the creditor.

The effect of exempt debt assumption is manifested in the fact that the original debtor is free from the debt relationship and is no longer liable for the transferred debt (exemption); The third party becomes the new debtor and is responsible for the debts it has incurred. The subordinate debts related to the main debt, in addition to the original debtor's own, are also transferred to the new debtor with the main debt. At the same time, the new debtor can also defend against creditors as the original debtor has the right to defend against creditors.

2 Concurrent Debt Assumptions. It means that the debtor does not break away from the debtor's relationship, and the third party joins the debtor's relationship and jointly bears the debt with the debtor.

In the case of concurrent debt assumptions, since the original debtor has not been divorced from the debt, it will not affect the interests of the creditor, so in principle, the consent of the creditor is not required, and it can become effective as long as the debtor or a third party notifies the creditor.

The reason why the transfer of debts requires the consent of creditors is mainly to protect the interests of creditors, and in the case of concurrent debts, the debtor shares debts with a third party in order to withdraw from the debt relationship, which has a greater protection for creditor's rights, so it is not contradictory.

Legal analysis: The consent of the original debtor is required for the assumption of debts. Where the debtor transfers all or part of the debt to a third party, it shall be subject to the consent of the creditor. The debtor or a third party may urge the creditor to agree within a reasonable period of time, and if the creditor fails to express it, it shall be deemed to have disagreed.

Legal basis: Civil Code of the People's Republic of China

Article 551 Where the debtor transfers all or part of the debt to a third party, the consent of the creditor shall be obtained. The debtor or a third party may urge the creditor to agree within a reasonable period of time, and if the creditor fails to express it, it shall be deemed to have disagreed.

Article 553 Where the debtor transfers the key to debt distress, the new debtor may assert the original debtor's defense against the creditor; If the original debtor has a creditor's right against the creditor, the new debtor may not claim set-off against the creditor.

Article 554 Where the debtor transfers debts, the debtor shall bear the subordinate debts related to the principal debts, except that the subordinate debts are exclusive to the original debtor.

Legal analysis: The consent of the original debtor is not required.

The so-called debt accession, also known as debt assumption, means that the original debtor has not broken away from the original debt relationship, but the third party joins the original debt relationship and jointly bears the debt with the debtor. For the establishment of debt accession, the following conditions must be met:

1. The relationship between the original debt must be validly established. If there are reasons for the original debt to be cancelled or discharged, the debt can still be established before the revocation or discharge.

2. The original debt is transferable. If the law provides or the parties agree that debts cannot be assigned or have a specific personal nature and cannot be assigned, the parties cannot agree to assign them, and a third party cannot join them.

3. The third party and the original debtor belong to different entities.

4. The consent of the original debtor is not required for the addition of debts. Because the act of joining the debt does not add a burden to the debtor, it does not need to obtain the consent of the original debtor, but the act of joining must be accepted by the creditor.

Legal basis: Civil Code of the People's Republic of China

Article 465:Contracts established in accordance with law are protected by law. A contract established in accordance with law shall only be legally binding on the parties, unless otherwise provided by law.

Article 466:Where the parties have a dispute over the understanding of the terms of the contract, the meaning of the disputed clause shall be determined in accordance with the provisions of the first paragraph of Article 142 of this Law. If the contract text is concluded in two or more languages and it is agreed that it has the same effect, the words and phrases used in each text are presumed to have the same meaning. Where the words and phrases used in each text are inconsistent, they shall be interpreted in accordance with the relevant terms, nature, purpose, and principle of good faith of the contract.

Article 467:For contracts that are not expressly provided for in this Part or other laws, the provisions of the General Provisions of this Part shall apply, and the provisions of the most similar contracts in this Part or other laws may be applied by reference. The laws of the People's Republic of China shall apply to Sino-foreign joint venture contracts, Sino-foreign cooperative joint venture contracts, and Sino-foreign cooperative exploration and development contracts for natural resources performed within the territory of the People's Republic of China.

Article 468:Where a creditor's rights and debts relationship does not arise from a contract, the legal provisions on such creditor's rights and debts shall apply; Where there are no provisions, the relevant provisions of the General Provisions of this Part shall apply, except where they cannot be applied on the basis of their nature.