The evolution of Section 1112 cc above and, as part of the “Sell and Purchase” chapter, the Civil Code governs the transfer of receivables to Articles 1526 and subsequent articles. Such an investment in the legal text has led the jurisprudence to clarify that this is not a sale per se, but the assignment may find its case in the sale and in all other legal disputes (Supreme Court decision of June 1, 2011). In the face of this transfer of debts (or assignment of rights), the defendant companies generally invoke the absence of legal legislation that corresponds only to the consumer concerned. In this context, we must give a brief summary of the different points of view of the Spanish courts: “Therefore, there is no legal prohibition of the transfer, since we are not dealing with a non-transferable or absolute right in its nature, so that there is no opposition to the transfer of debts. In short, the derogation from the portability of the receivables does not apply, i.e. (i)) the specificity of the credit in question, either because the lender determines the characteristics of the provision or because it is, for example, an ancillary right to another principal loan, the former of which cannot be separated; (ii) the existence of a contractual prohibition (non-cedendo pactum); or (iii) a legal prohibition. The Santander judge expressly excludes the collection administration as the admitted cause of the transfer, as it considers that such a transaction is inconsistent and does not imply an effective transfer of credit. The assignment of receivables is a waste disposal operation that is aimed at the acquisition by the assignee. It is an inter-living transfer that serves an economic function of the movement of goods in the context of legal transactions.
It is not really an abstract case, but the general cause, as we might say, of the transfer of the right of credit always requires a variable element that is the specific purpose or the transfer function on a case-by-case basis. This is also confirmed by the judgment of the Court of Commerce No. 1 of San Sebastian on 19 December 2018, which stipulates that the transfer does not require any particular formalism. The assignment of a right to require it from that third party for the administration of that right according to its name and risk is, as a rule, an assignment of debts from Article 1112 Z. and, as such, perfectly valid, with the aforementioned limits (law, other agreement and absolute rights). We must ask ourselves whether the so-called transfer of debt requires any formalism to be fully effective. Judgment of December 20, 2018 of the Commercial Court No. 3 of Palma de Mallorca found that in these cases, since the contract is not awarded, but only the credit, such an assignment does not require an authentic deed or, logically and as stipulated in our Civil Code, the consent of the debtor. In general, such judgments defend the absence of effective assignment of debts in cases where there is a document authorizing a third party to assert rights on behalf of the consumer. The judgment handed down on 7 February 2018 by the Commercial Court No.
1 of Santander (Cendoj: 3907570012018100003) declares this case as follows: Therefore, we understand that the courts` restrictive interpretations when transferring such claims are not only contrary to their regulation in the CC, but may also over-restrict commercial transactions and unduly impede the right to effective judicial protection. The question here is how the case law provides for the transfer of the law. We must recall that the Civil Code expressly authorizes the transfer of “doubtful debts” (art.