legal terms
Tracy Miller
I am working on a contract that involves novation which is the reassignment of certain obligations in a contract and ran across these two terms which I have not been able to pin down in English:
免責的債務引受
併存的債務引受
Does anyone have any suggestions?
Tracy Miller
Alan Siegrist
| 免責的債務引受
| 併存的債務引受
|
| Does anyone have any suggestions?
I have not found a definitive English equivalent for these, but here are
some Japanese definitions:
併存的債務引受(へいぞんてきさいむひきうけ)
債務を引受人が債務者と共に負う関係(連帯債務)となる契約。履行引受や免責的債務
引受と異なり、債務者の意思に反する場合でも債権者と債務引受人の間で契約をする
事が可能です。また、免責的債務引受と同じく三者(債権者、債務者、債務引受人)に
よる契約もできます。併存的(重畳的)に債務を引き受けた場合に担保物権(抵当権な
ど)の登記変更が必要な時も、追加する事項において連帯債務者として引受人が加わ
ります。
http://horitsu6infolaw.xrea.jp/mini_w_category/h_gyo/h_hezonteki_sh.php
免責的債務引受(めんせきてきさいむひきうけ)
引き受け人が債務を債務者にかわって負う契約。債務者は免責されます。債務者の意
思に反して債権者との間でこの契約をする事はできません。債務者と引受人の間でこ
の契約をする場合は債権者の承諾が必要になります。
http://horitsu6infolaw.xrea.jp/mini_w_category/m_gyo/m_mensekiteki_sh.php
As far as I can tell, the main difference between these two is that in the
former case, the obligation is assumed jointly and severally by the original
obligor and the new obligor. One common example of a joint and several
obligation is two people cosigning for a car loan.
In the latter case, the original obligor is released from the obligation and
it becomes the sole responsibility of the new obligor. In another car loan
example, I think this is like when someone sells a car before the loan is
paid off and the new owner takes over the payments.
Whatever you come up with as a translation should reflect this difference.
Regards,
Alan Siegrist
Orinda, CA, USA
Ray Roman
minoru
免責的債務引受: indemnifying debt assumption
併存的債務引受: concurent debt assumption
Minoru Mochizuki
Richard Thieme
From offline dictionaries seems that what 免責的債務引受 really means is
that the debtor transfers the debt to the new debtor, and the old debtor
drops out. The lack of recourse means that the creditor no longer has a
right to demand payment from the original debtor. It doesn't necessarily
mean that the new debtor lacks recourse against the old debtor (unless I am
wrong). Obviously this is an agreement reached between the creditor and the
new debtor with the old debtor's consent, or at least the old debtor has to
consent to this transfer.
I have run across it before, and have used "indemnified assumption of debt"
with a note, but I don't think that is quite right. These two are terms that
have niggled at the back of my mind for some time, and I am still looking
for something good. It seems to me that if they only appear once in a
document the best way is to say it out without using a defined term,
something like "the debt is transferred to the new debtor, without recourse
on the part of the creditor against the old debtor," but I am still poking
around on this one.
Regards,
Richard Thieme
----- Original Message -----
送信者 : "Ray Roman" <japane...@gmail.com>
宛先 : <hon...@googlegroups.com>
送信日時 : 2008年6月19日 7:06
件名 : Re: legal terms
> --
> Ray Roman J.D.
> Japanese to English legal translation
> japane...@gmail.com
>
> >
>
Ray Roman
Richard Thieme
件名 : Re: legal terms
> The term "recourse" has specific meanings in the areas of negotiable
> instruments and personal guarantees on loans, and so is not appropriate
> here.
Yes but "indemnified" also presents problems, because that would imply that
the new debtor indemnifies the old debtor against a claim from the creditor.
Which is not what takes place here. Again this is a problem of the Japanese
and the English, as you mentioned. In this case I think we would probably
consider the 引受 as part of the whole transaction. Like when you sell an
asset which is encumbered by a debt and the lender agrees that the buyer
will become the new debtor. If the new debtor defaults, the lender bank
cannot go back and demand payment from the original owner. I know this is
not done this way in the US.
"assignment of debt with release from liability" seems to have problems as
well, because it would seem to imply that the _new debtor_ is releasing the
old debtor from his obligation. Which is not what takes place. What happens
is that the creditor agrees to/accepts that the old debtor is dropping out
of the transaction, and will no longer be liable (that is why consent by the
lender is required).
Allow me to elaborate here, because this is one concept I would like to get
nailed down, although I am not convinced that it is possible.
RE: recourse, see
http://www.allbusiness.com/glossaries/without-recourse/4942163-1.html
And from what I can see, saying that the creditor will not have recourse
against the lender is the closest, in the sense that the lender does not
have recourse against the old debtor.
A good example which fits both the sense you were referring to and is pretty
close to the Japanese sense is this:
http://www.answers.com/topic/without-recourse?cat=biz-fin
Which gives:
"An example of a without recourse note is a personal check written by A, the
maker, to B, the payee. B, in turn pays off a debt to C by endorsing the
check and adding the without recourse phrase. If A's bank refuses to pay C
the check amount because A has insufficient funds in his checking account, C
cannot demand payment from B. C will have to attempt to collect the money
from A."
(My comments below)
In this case the Japanese starts its view of the group of transactions from
the debt of B to C (B being the debtor and C being the creditor), in
contrast to the way we the above text starts its discussion. B pays C its
debt to C with the note written by H, and in the process is transferring its
debt that it has to C, into a debt on the part of A against C. Now unlike
the Japanese case we are dealing with checks, which are assignable in
American jurisdictions (although things like crossed checks are not
assignable in other Anglo-American jurisdictions, but we won't get into that
here). There are some other differences like how notice works, but the idea
of without recourse is the same in the sense that C cannot go against B
(does not have recourse against B) in the same manner as the 債権者 in the
免責的債務引受 cannot go against the 旧債務者.
Thanks for your input as always.
Regards,
Richard Thieme
Richard Thieme
Replying to an old post because I ran across the same topic and discovered
that I had made a serious error, and could not correct or delete my previous
post over the web. I hope no one was misled.
>
>
> From offline dictionaries seems that what 免責的債務引受 really means is
> that the debtor transfers the debt to the new debtor, and the old debtor
> drops out. The lack of recourse means that the creditor no longer has a
> right to demand payment from the original debtor. It doesn't necessarily
> mean that the new debtor lacks recourse against the old debtor (unless I
> am
> wrong). Obviously this is an agreement reached between the creditor and
> the
> new debtor with the old debtor's consent, or at least the old debtor has
> to
> consent to this transfer.
The last sentence should read "Obviously this is an agreement reached
between the _old debtor_ and the
new debtor with the _creditor's_ consent, or at least the _creditor_ has to
consent to this transfer.
Also is there a way to edit your previous posts through the website?
Regards,
Richard Thieme