6. Performance of Obligations

Question 1

What is payment?

Answer 1

The fulfilment of the duty of performance agreed by the parties. It can consist of a delivery of a sum of money, a thing or the performance of a service. Once done, the obligation is extinguished.

Question 2

What are solvens?

Answer 2

The subject that makes the payment. Debtors.

Question 3

What are accipiens?

Answer 3

The subject that receives the payment. Creditors.

Question 4

The payment can also be made by…

Answer 4

1. Someone empowered by the debtor.
2. By the successors of the debtor.
3. By a third party, whether or not they have interest in the performance or whether the debtor knows and approves or ignores it. However, it liberates the debtor but entails consequences between the debtor and the third party.

Question 5

What happens if the payment made by a third party is made in agreement with the debtor?

Answer 5

Reimbursement + subrogate in the position of previous creditor (possibilities to benefit from the guarantees of the debt).

Question 6

What happens if the payment made by a third party is against the will of the debtor?

Answer 6

Only can claim the benefit received from the payment. Shall NOT subrogate.

Question 7

What happens if the payment made by a third party is made without the debtor’s knowledge?

Answer 7

Reimbursement + NOT subrogate.

Question 8

Who else can receive the payment?

Answer 8

1. His representative.
2. Payment to a third party: if it is useful for the creditor. It does not extinguish the obligation, asa the creditor shall not see his interests satisfied.
3. Apparent creditor: The payment made in good faith releases the debtor. The creditor is NOT able to go against him anymore (he could only sue for unjust enrichment of the apparent creditor).

Question 9

What are the requirements regarding the object for a payment to extinguish an obligation?

Answer 9

Identity, Integrity & Indivisibility.

Question 10

Can the creditor be forced to receive something different to the agreed?

Answer 10

No, no matter if it is something of the same value or more.

Question 11

Explain identity:

Answer 11

The payment must be made the exact duty of the performance agreed. It has to be made in the space agreed.

Question 12

Payments made with commercial paper shall not be effective until…

Answer 12

collected.

Question 13

Explain the rule of the “medium quality”:

Answer 13

If the quality and circumstances have not been foreseen.
Creditor cannot ask for more and debtor cannot deliver less. (Debtor would mean to deliver on the medium).

Question 14

Explain integrity:

Answer 14

Unless provided otherwise, to pay the payment, the performance has to be completely fulfilled.
However, the credit can accept a partial payment IF the performance is divisible and it satisfies his interests.

Question 15

Explain indivisibility:

Answer 15

Partial performance is not permitted, but the creditor can accept it if it satisfies his interests.
The creditor can refuse incomplete payment.

Question 16

When does delinquency start for the debtor?

Answer 16

From the moment when performance is asked by the creditor.

Question 17

What is the essential term of performance?

Answer 17

When the obligation can only be performed in a particular moment, and from the moment the payment, the creditor can enforce the obligation asking for performance. E.g. Santa contracted for Christmas Eve.

Question 18

What is the non essential term of performance?

Answer 18

The lack of performance can entail a mere delay or the definitive non-performance.

· Pure obligation: shall be enforceable from the present.
· Condition subsequent: shall be enforceable, without prejudice to the effects of termination thereof.
· Condition precedent: performance shall depend don the event constituting the condition.
· Subject to term: Obligation shall only be enforceable upon arrival of such day.
If uncertainty about whether the day shall arrive or not, the obligation is conditional, and shall be governed by the provisions of the preceding.
Anything paid in advance may not be recovered. If the person who paid, when he did so, was unaware of the existence of the forward term, he shall be entitled to claim from the creditor any interest or fruits which the latter has received from then subject.

Question 19

Where shall payment happen if there is no place designated?

Answer 19

If there is a specific thing being delivered, payment shall be made at the place where the thing was located when the obligation was created.
Rest of cases: domicile of the debtor.

Question 20

What are the special ways of performance of payment?

Answer 20

1. Imputation of payments.
2. Accord and satisfaction.
3. Payment by assignment of property.

Question 21

What is the imputation of payments?

Answer 21

When a debtor has different debts with the same creditor, he can decide which of them he wants to extinguish.

Question 22

Requisites for imputation of payments to be possible:

Answer 22

1. ONLY 1 debtor and 1 creditor.
2. Debts of the same kind.
3. Debts have to be due: the timing for the debtor to pay the debt has come, and if he does not pay: delinquency.

Question 23

Who decides for imputation?

Answer 23

Generally, the debtor.
However, the can agree on it.
Creditor: if the gives the debtor a receipt that applies the payment made to one obligation in particular and the debtor accepts it, the payment shall be applied to such debt.

Question 24

If a debt produces interests, can it be understood that payment is made on account of the principal if the interests have not been paid?

Answer 24

NO.

Question 25

If imputation has not been made, payment shall be applied to which debt?

Answer 25

The most onerous debt (the most unfavourable/burdensome for the debtor).
If all of them are of the same amount, it shall be imputed to all of them a prorrata.

Question 26

What is accord and satisfaction?

Answer 26

The AGREEMENT on giving something or any alternative instead of making the payment.

Question 27

Explain what is pro solute

Answer 27

The “payment” extinguishes the obligation no matter if the vale of the thing given is smaller or bigger, as long as it satisfies the creditor’s interests.

Question 28

Explain payment by assignment of property:

Answer 28

When a debtor doesn’t have enough assets to pay, he can agree with his creditors the assignment of his entire asset bc of his lack of assets.

Question 29

What happens if the value of the assets given through assignment of property exceeds the amount of debt?

Answer 29

Pro solvendo.
The creditors shall return the excess.

Question 30

What happens if the value of the assets given through assignment of property does not cover the total amount of debt?

Answer 30

Debt is only partially extinguished.

Question 31

Explain briefly creditor’s delinquency/mora creditors:

Answer 31

The creditor refuses to receive payment without a proper reason OR cannot receive it.

Question 32

Who bears the risk of loss of the thing due it creditor’s delinquency?

Answer 32

Once demonstrated the impossibility, the creditor.

Question 33

What is the creditor responsible for of the debtor in the case of creditor’s delinquency?

Answer 33

For the increase in the expenses to liberate the debtor.

Question 34

Does delay in the performance, in the case of creditor’s delinquency, entails debtor’s delinquency?

Answer 34

NO.

Question 35

What is the consignment of the thing due?

Answer 35

The deposit of the thing with the judicial authority at the disposal of the creditor.

Question 36

Cases in which the debtor can consign the thing due:

Answer 36

1. The creditor unreasonably refuses to accept payment.
2. The creditor is absent or incapacitated at the moment of payment.
3. The creditor is unknown.
4. The title of the obligation is lost.
5. Several persons claim that they have the right to collect payment.

Question 37

Requisites for consignment of the thing fue to be possible:

Answer 37

1. Must be an obligation to GIVE something.
2. Prove to the judge at the time of deposit that the debtor has previously made the offer of payment to the creditor.
3. Deposit before judicial authorities.
4. For consignment to liberate the debtor, he should announce it to the persons interested previously and once again once the consignment is made.

Question 38

Who bears the expenses of the deposit in the consignment of the thing due?

Answer 38

The creditor.