Imputation of payment occurs when the debtor does not have enough balance to pay all his debts to the creditor. It can be done in different ways, and follows some mandatory requirements. Keep reading to learn more about payment allocation.
What this article covers:
Imputation of payment occurs when the debtor makes several debts of the same nature with a single creditor, but does not have enough balance to settle them. The debtor has the right to choose which or which of the debts he will pay first, if all are liquid and overdue.
Elements of Payment Imputation
We list below the elements or requirements of payment imputation:
- Multiple debts, with the same creditor;
- Identity of the parties (debtor and creditor);
- Same nature of debts (for example, all in cash);
- Net and overdue debts, that is, they cannot be under judicial investigation;
The payment must be enough to pay off at least one of the debts. The creditor is under no obligation to receive the partial amount.
If the requirements are met, payment can be made.
Types of Payment Imputation
There are three types of imputation of payment: by indication of the debtor, creditor or by virtue of the law. Learn more about them below.
Imputation of the debtor
In the attribution of the debtor, he decides to which debt the payment will be destined. The debtor has the right to decide which debt he wants to pay off.
If the debtor does not decide which debt will be paid, the imputation of the creditor occurs, in which he makes the choice. The debtor has no right to claim against this attribution, except in cases where violence or malice on the part of the creditor is proven.
Imputation made by law
In case the debtor does not choose which debt he wants to discharge, imputation can also be done by law. Net and overdue debts have preference.
Interest on imputation
In case there is interest, the payment will be destined first to them, and then to the debt itself.
Rules for Imputation of Payment
The preference for imputation of payment, when made by law, follows the following rules:
- Between overdue and overdue debt, preference is given to the overdue debt;
- Between net and illiquid debt, preference is given to net debt;
- Among net debts, the most onerous;
- Among equal burdens, the oldest;
- Between commercials and civilians, preference is given to commercials.
These are the payment imputation rules made by law.
The 3 phases of Payment Imputation
The imputation of payment can be divided into what we call phases or modalitieslisted below.
Subjective imputation is that centered on the control of the parties. It can be of three types:
- Passive subjective imputation: it is the imputation made by the debtor, in which he decides which debt will be settled.
- Active subjective imputation: it is the imputation made by the creditor, in which he divides which debt will be settled, if the debtor has not decided.
- Conventional subjective imputation: it is the imputation made by both parties, the debt is decided jointly.
These are the three types of subjective imputation.
Objective or legal imputation
It is provided for by law, in case the debtor does not decide which of the debts will be settled, and the discharge is silent as to the imputation.
Applies when imputation by the parties is not possible. In jurisprudential imputation, the amount paid by the debtor is divided among the existing debts.
The allocation of payment can be made by the debtor, creditor or by law, and follows certain requirements. It is important to remember that the debtor always has the right to choose which debt will be paid off, other imputations are made only if the debtor does not decide.