Payment by an Insolvent "Comparative Study"

This study discusses the issue of payment with return, more precisely the role that the payment in return plays as being one of the reasons that lead to the payment of the commitment. This role is determined through determining first the legal frame of the payment with return, then determining the legal nature of this idea so as to reach the most significant implications of it. All of this comes within a comparative study between the Egyptian civil law and the Jordanian civil law as well as the Journal of the Judicial Provisions in addition to the materials' texts of the Palestinian civil law project that is related to this study. This study consists of three chapters. The first chapter discusses the definition of the payment in return and determined the legal frame of this concept through defining this idea and explaining to what extent it is allowed to force the creditor to accept something that is alternative to what the debtor has already promised to offer in order to reach the real meaning of the idea of payment with a return. The chapter also explains the elements of this process and how it differs depending on the types of laws under comparison in this study which differ according to the definition by which these regulations have been taken. So, was the wide definition of the payment with return considered or was it the narrow definition that was considered which works on narrowing the scope of this process and confining it to specific cases only. In chapter one also, the researcher explained what distinguishes the payment with return from other similar legal systems such as the renewing system which is considered the most important one, as well as the substitutional commitment and optional commitment. The second chapter addresses the issue of payment with return in the judicial provisions journal on one hand in which this concept was named “Reconciliation” whose nature is defined according to the type of interests. On the other hand, this chapter discusses the nature of payment with return in the civil legislations. In order to determine the nature of this process as whether a renewing of the commitment, selling or whether the payment with return is considered an independent system that has its own legal philosophy; therefore, it is necessary to carry out a legal study that is based on the comparison between these laws. The study should also explain the major trends that are presented in this respect, the most important critical ideas of it in order to reach the correct legal adaptation to the payment with return. In the third chapter, the researcher talked about the double impacts of the payment with return which came as result of the combined nature of this concept. There are some implications of the payment with return being a transporter of ownership and is subject to the provisions of the selling contract such as the provisions of the ensuring eligibility and the provisions of assuring the concealed deficits. On the other hand, there are impacts of this concept whereby we consider it as an eliminator of the original commitment which also exempts the debtor. In this case, it is subject to the provisions of the payment such as the expiration of the guarantor insurances of the original debt, the special provisions of debt multiplicity, as well as the possibility to let the creditor to present an appeal in the payment with return through the policy case. After that, the researcher included a conclusion that consisted of the research’s results and recommendations.