Defence of Fraud against the Disobedient Heir. A Comparison of D. 44.4.8.1 and § 663 ABGB (Austrian Civil Code)

After the due date of a claim, the creditor can, of course, sue his debtor. However, not every creditor wishes to enforce his claim against his debtor. If the creditor himself is not willing to sue his debtor, the debtor could – after the death of the creditor – be sued by the heir of the creditor. However, it is possible for the creditor to order that his heir exempt the debtor from his debt. In this article, cases involving such an order are analysed in the context of Roman law and Austrian civil law. The main focus of this work is whether the debtor can defend himself with an objection against an heir who tries to sue the debtor and, thus, does not follow the order of the deceased.