When you are preparing to apply for a loan, the credit institute among other things wants to have information on the client’s civil status: personal loans and asset communion represent an important combination for the purposes of the assessment, since the marriage bond and the chosen regime for the assets in common between the two spouses inevitably influence the applicant’s balance sheet. A bank or finance company will always consider very carefully the two different hypotheses, or separation or communion of assets , both in order to ascertain the real equity of those who request financing, but also to acquire collateral guarantees to protect it. insolvency case for non-payment of installments. So let’s see what entails the communion of goods in the context of personal loans , what they provide in this regard the rules of the civil code governing this type of relationship and how the debt situation is regulated.
- What is the communion of goods
- How does a property commune influence a loan?
- Loan with communion of assets: documents and clauses
- Who answers the debts in communion of goods?
What is the communion of goods
As we anticipated, during the evaluation process the bank ascertains the status of the requesting natural person and, if the latter appears to be married, must check, by means of a copy of the marriage certificate, whether there is a regime of separation of assets or communion of assets between spouses, an aspect that will inevitably affect the financial and economic situation of the subject. While with the regime of the separation of assets each spouse responds to the obligations assumed only with its own assets,
the communion of goods implies that any good purchased by each spouse, even separately, is to be considered as property of the other spouse, and therefore part of the right in communion.
According to article 177 of the civil code they are part of the communion:
- Goods purchased together or separately during the marriage
- Income of the property of each of the spouses, received and not consumed upon the dissolution of the communion, such as revenues resulting from the rent of an apartment that was owned by one of the two spouses before the contraction of the marriage
- Income from the separate activity of each of the spouses and not consumed upon the dissolution of the communion, such as salaries and professional fees
- Companies managed by both spouses and established after marriage . If the companies belong to one of the spouses before marriage, but are managed by both, the communion only concerns the profits and increases
How does a property commune influence a loan?
If the situation of separation of assets is relatively simple, the status of the applicant that is conjugated with the communion of goods is more complicated for the provision of a personal loan : for this case the norm of art. 159 of the civil code that regulates this property regime. For the credit institution, the issue is linked to the assessment of the impact on the applicant’s assets, since the amount of a loan, especially if granted to natural persons, is always commensurate with the value of the assets included in the assets. In this way, the bank, in order to protect the money granted, is informed about which movable and immovable property can be recouped in the event of insolvency of its client, according to the risk policies of its own institute. From this point of view,
the bank or finance company that grants the credit tends to favor the stipulation of the loan agreement by both spouses, so as to be able to claim, in the event of insolvency, the assets subject to communion.
Loan with communion of assets: documents and clauses
Which documentation in case of personal loan with communion of goods ? Generally, the bank will request the following documents from the spouse in communion regime:
- The subscription by co-obligation of the other spouse
- The acceptance of both to the derogation of the art. 190 cc
This derogation to be signed is a clause expressly authorizing the body that provides the credit to act primarily and not as a subsidiary of the personal property of each of the spouses. But if the spouse of the applicant would not want to be involved up to this point? There is another option that can be offered to the bank, which is a simple guaranty from the spouse, although it seems fair to point out that not all lenders accept this alternative solution, since in that case the financial institution could only seize the assets personnel of the spouse entrusted and the personal property of the guarantor, while the assets of the communion would be eligible only in the alternative and with priority reserved for the creditors of the communion.
In the event that the loan is requested by both spouses, the bank becomes a creditor of communion without anything else to object, and therefore the personal property of the spouses would be seizable only at a later time.
Who answers the debts in communion of goods?
Ultimately we see what happens if the debts are contracted by a spouse separately, but in the interest of the family : in this case the spouses answer first with the goods of the communion, and then with the personal ones, according to what is regulated by art. 191 of the civil code. This means that
the creditors first revoke the assets belonging to the communion, and in case they are insufficient the debt would be reimbursed through the assets of the only spouse who has contracted it. If the assets of the contracting spouse were still insufficient, only then could the creditors seize the assets of the other spouse, up to a maximum of half of the credit .