Roma Hukukunda İbra İşlemi (Acceptilatio) ve Alacağı Talep Etmeme Taahhüdü (Pactum De Non Petendo)

Abstract

Acceptilatio is a release transaction which extinguishes the obligation in Roman Law in terms of Ius Civile in the case that creditor and debtor agree on the subject that the debt shall not be paid, in other words it extinguishes the obligation where the creditor relinquishes his claim. This transaction also constitutes the basis of the release agreement in modern laws. Acceptilatio directly discharges both principal obligation and accessory obligations such as pledge, surety, debit interest and penalty clause without any additional legal act. In order to make acceptilatio validly in the way that is recognized by Ius Civile, the debtor must also consent to the release. In Roman Law, so as to make a release with acceptilatio, the debtor must declare his will verbally and formally by asking question and the creditor must also answer the question with the same formal words. Therefore, it is not possible to make a release in Roman Law informally. On the other hand, pactum de non petendo is an informal agreement between the debtor and creditor that the debt shall not be claimed temporarily or permanently. Nevertheless, this agreement extinguishes the obligation not in the terms of Ius Civile, as in acceptilatio, but only extinguishes it within the scope of Ius Honorarium on the condition that an exception (exceptio) is put forward by the debtor during trial. As a result of this situation, by making pactum de non petendo, only the debt which is subject to agreement is discharged not the whole obligation in a broad sense. Additionally, in the case that the agreement of this kind is made between debtor and creditor, obligation extinguishes only for the parties who made the agreement, but continues to exist in a valid way for the surety, joint debtors or joint creditors. Therefore, pactum de non petendo is not a release transaction in both Roman and contemporary laws, but it is an informal agremeent which is protected by exception in case of breach.