5. The Obligation

Question 1

What is the obligation?

Answer 1

The main effect of the contract (the legal relation). It is giving, doing or not doing something.

Question 2

What are the elements of the obligatory relation?

Answer 2

1. The person subject to the obligation.
2. The object of the obligation.
3. The bond created by the obligation.

Question 3

The object of the obligation has the following requisites:

Answer 3

1. Lawful.
2. Determined or able to be determined.
3. Patrimonial (if not, has to provide the necessary tools to economically satisfy the creditor in case of non-performance).
4. Possible.

Question 4

Types of impossibilities and examples:

Answer 4

1. Natural (do not exist) v Legal (do not exist anymore).
2. Absolute (impossible for everybody) v Relative (impossible for the debtor).
3. Total (affects the whole obligation: null and void) v Partial (affects only a part: compensation for damages).
4. Primary (main agreement is null and void) v subsequent.

Question 5

Sources of obligation:

Answer 5

1. Arising from law.
2. Arising from contracts.
3. Arising from unlawful acts or omissions: crimes and misdemeanours.

Question 6

Types of obligations depending on the object:

Answer 6

1. Specific v generic.
2. Positive v negative.
3. Simple v complex.
4. Divisible v indivisible.
5. Principal v subordinate.

Question 7

Explain generic obligations:

Answer 7

The thing belongs to a kind of things.

The obligation is fulfilled by the delivery in any object of such class.

If the quality is not stipulated, it cannot be required.

Question 8

When are specific obligations extinguished, apart from the delivery of the thing?

Answer 8

When the thing is either lost or destroyed without the fault of the debtor and before the debtor incurred in delinquency.

Question 9

Can the creditor receive something different of equal or higher value than the thing they agreed in specific obligations?

Answer 9

No.

Question 10

Responsibilities if the thing is lost or destroyed in specific obligations:

Answer 10

· If happened while in possession of the debtor, loss is presumed his fault.
· Debtor does not bear the risk of loss before delivery and due to circumstances not his fault.

Question 11

What are simple obligations?

Answer 11

Those concerning only one object.

Question 12

What types of complex obligations are there?

Answer 12

Cumulative.
Alternative.
Optional.

Question 13

Explain cumulative complex obligations:

Answer 13

Several objects and they are all subject to demand.

Question 14

Explain alternative complex obligations:

Answer 14

Several objects that shall be fulfilled performing only one of them.
If one is impossible, the debtor still has to perform the other.

Question 15

Explain optional complex obligations:

Answer 15

Duty of performance, but, the debtor has the possibility of substituting it for another duty of performance that the creditor could not ask for.

Question 16

If the subordinate obligation disappears, how does it affect the principal obligation?

Answer 16

It does not affect it.

Question 17

Obligations to do, when they consist on the performance of a number of days of work, execution of work by metric units, etc, are of what kind?

Answer 17

Divisible.

Question 18

Obligations to give a specific thing and those which cannot be partially performed are of what kind?

Answer 18

Indivisible.

Question 19

Types of obligations depending on the bond:

Answer 19

1. Pure v conditional v subject-to-a-term.
2. Unilateral v Bilateral.

Question 20

Explain pure obligations:

Answer 20

They can be asked to be performed from the moment of constitution of the obligatory relation.

Performance is not subject to any circumstance.

Question 21

Explain conditional obligations:

Answer 21

They depend on a future uncertain or past event.

· Condition precedent: It can suspend the effect of the obligation until such event happens. When the conditions takes place, the obligation turns into a pure obligation.
· Condition subsequent: the obligation expires upon the condition is taking place.

Question 22

When the condition is pending, the obligation …; When the condition occurs, the obligation is …; If the condition does not take place, it is turned into a …

Answer 22

a) can be asked to be performed.
b) terminated.
c) pure obligation.

Question 23

Explain subject-to-a-term obligations:

Answer 23

They depend on a future event.
They can be initial (from that date) or final (until that date).

Question 24

Explain unilateral obligations:

Answer 24

Only one of the parties has the duty of performance.

Question 25

Explain bilateral obligations:

Answer 25

Reciprocity in the duties of performance.
e.g. contracts of sale.

Question 26

Explain simultaneous fulfilment, exceptio non adimplendi contractus

Answer 26

Exception for non-performance.
Not of the parties can ask for the performance without having fulfilled their own.

Question 27

Explain simultaneous fulfilment, exceptio non rite adimplendi contractus

Answer 27

Exception for inaccurate performance.
The defendant can refuse to perform his obligation until the claimant has performed his own obligation.

Question 28

Explain compensatio mora:

Answer 28

From the moment one of the parties fulfils, delinquency starts for the other.

Question 29

Explain the compulsory performance and termination regime:

Answer 29

When one of the parties does not fulfil his obligations the other can terminate the obligation OR ask for the performance with a claim for damages.

Question 30

Types of obligations depending on the persons subject to it:

Answer 30

Passive obligation – several debtors; active obligation – several creditors; mixed obligation –several creditors and debtors.

Joint obligations v joint and several obligations.

Question 31

Explain briefly joint obligations:

Answer 31

(mancomunadas).

Each debtor only has to fulfil their part. Their debts are independent from the others.

Question 32

Explain briefly joint and several obligations:

Answer 32

(solidarias).

Each creditor has the right to ask and each debtor has the obligation to fulfil the whole right of performance.

Question 33

Are joint obligations presumed always?

Answer 33

If the degree of participation is not stated by the parties:
Obligations are joint unless expressly provided. Solidarity has to be expressly determined.

The credit or the debt shall be presumed to be divided in as many equal parts as there are creditors or debtors and they shall be considered different from one another.

An obligation is joint and several when it can be inferred from the will of the parties or from the nature of the agreement.

Question 34

Explain active joint obligation

Answer 34

Each of the creditors cannot ask the debtor only for the totality of the performance but only for the part that corresponds to their credit.

Question 35

Explain passive joint obligation

Answer 35

The creditor cannot ask any of the debtors for the totality of the performance but only for their part in the debt.

Question 36

Dos insolvency of one of the debtors affect the others in joint obligations?

Answer 36

NO.

Question 37

Explain mixed joint obligation

Answer 37

Each of the debtors can only be asked to fulfil their part in performance and each of the creditors only has the right to ask their part in the credit.

Question 38

Effects of joint obligations:

Answer 38

· Divisible object: each debtor can perform his correspondent portion in the debt.
· Indivisible object: the non-performance of one of the debtors does not affect the others but the compliance is not possible unless the obligation is transformed into a divisible one.

Question 39

The non-performance of one debtor in joint obligations –>

Answer 39

total breach of the joint obligation –> compensation for damages.

In this case, for the performance to be possible, it turns into a monetary obligation so that each debtor performs by delivering the amount that corresponds to him on the value established for the good, they shall not pay for other possible damages.

Question 40

Effects of joint and several obligations (active solidarity):

Answer 40

Any of the creditors can ask the debtor for the full performance of the debt.

External relationship (creditor-debtor):
The novation, compensation, confusion or remission of the debt made by any of the creditors liberated all joint and several creditors. If one creditor has already asked for full performance, another creditor cannot go against the debtor because he is liberated as he has already performed by the first creditor.

Internal relationship (between creditors): the creditor who recovered is responsible towards the other creditors for their part.

Question 41

Effects of joint and several obligations (passive solidarity):

Answer 41

External relationship (creditor-debtor):
The creditor may sue any of the debtors or all of the simultaneously for the total performance. If the creditor goes against one of the debtors and does not perform, he can still ask the others for performance. If there is negligence in any debtor, all of them shall be liable towards the creditor for the price and damages, making good the part of the insolvent in proportion to their single debts. If performance becomes impossible without any of the debtors fault, the obligation shall be extinguished.

Internal relationship (between debtors):
If one of the debtors performs, he extinguishes the debt but, as he has performed for the others, he can claim for other parts.
The insolvency of one of them affects the others who have to replace him, making good the part of the insolvent in proportion to their single debts.