Breach Of Obligation Flashcards
Arises from the modes (Art. 1170)
Voluntary
Arises because of fortuitous events/force majeur
Involuntary
Will not be permitted for a slight or casual breach of the contract, but only for such breaches as are so substantial and fundamental as to defeat the object of the parties in making the agreement
Rescission
Modes of Breach
-Fraud/Deceit (Dolo)
-Negligence (Culpa)
-Delay (Mora)
-Contravention of Tenor
-Absolute Non-performance
Is the voluntary execution of a wrongful act or a willful omission, knowing and intending the effects which naturally and necessarily arise from such act or omission
Fraud (Dolo) 1171
Deliberate and intentional invasion of the normal fulfillment of obligations
Fraud
Any voluntary and willful act or omission which prevents, knowing and intending the effects which naturally arise from such act
Fraud
Fraud in the performance of pre-existing obligation
Fraud
Cannot cover mistake and errors of judgement made in good faith, ergo synonymous to bad faith (dishonest) purpose or some moral obliquity and conscious doing of wrong
Fraud
The element of _________ and _________ the harm done is the test
Intent, Not
Kinds of Fraud
-Fraud in performance
-Fraud in the execution/creation/birth of the contract
Article of dolo causante
Art. 1338
Article of dolo incidente
Art 1344
Article of negligence
Article 1172
Absence of due diligence
Negligence (Culpa)
It is anyvoluntary actor omission on there being no malice which prevents the normal fulfillment of an obligation
Negligence
Negligence as a source of obligation
Culpa Aquiliana
Fault or negligence which constitutes an independent source of obligation between parties not preveiously found
Culpa aquiliana
Negligence in the performance of a contract
Culpa contractual
Fault or negligence of the debtor as an incident in the fulfillment of an existing obligation
Culpa contractual
A party to a contract is relieved from the effects of his fault or negligence by a thurd person
Insurance
Effects of negligence
-Damages are demandable, which the courts may regulate according to circumstance
-invalidates events of fortuitous events
Non-fulfillment of obligation with respect to time
Delay (MORA)
Article number of MORA
Art 1169
Neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the partners fulfill his obligation, delay by the other begin
Reciprocal obligations
There can only be delay in
Positive obligation
Parties in bilateral contract can regulate the order in which they shall comply with their reciprocal prestations. The fulfillment must be simultaneous and reciprocal
Compensatio morae
Ex re referring to
Obligations to give
Ex persona referring to
Obligations to do
Insertion of the clause “without further notice”
Express stipulation
Delay in the performance based on the omission by the creditor of the necessary cooperation, especially acceptance on his part
Mora Accipiendi
Debtor becomes liable for damages of the delay
Effects of mora solvendi
The creditor becomes liable for damages
Effects of mora accipiendi
Deposit a thing due with a court/judicial authorities
Consignation
The debtor may relieve himself of the obligation by the consignation of the thing
Effects of mora accipiendi
One is not compelled to perform his prestation when the other contracting party is not yet prepared to perform his prestation, default of one compensates the default of the other
Exceptio non adempleti contractus
Any illicit act which impairs the strcit and faithful fulfillment of the obligation or every kind of defective performance
Contravention of tenor
Malicious or negligent violation of the terms and conditions stipulated in the obligation
Contravention of tenor
when demand is not required
-law so provides
-express stipulation
-period is the controlling motive or principal inducement for the creation of the obligation
-when demand would be useless
liability for fortuitous events
No person shall be liable for fortuitous event i.e., his obligation will be extinguished
Vitiation of consent;
Voidable contract
dolo causante
Right of the innocent party to annul the contract
dolo causante
Does not result in the vitiation of consent
dolo incidente
Gives rise to a right of the innocent party to
claim for damages
dolo incidente
Secure the consent of another to enter into
contract BUT fraud was not the principal
inducement in making the contract
dolo incidente
During the perfection of a contract
dolo causante and dolo incidente
total
substantial
partial
casual
a part is performed
casual
amounts to non-performance
substantial
Basis for rescission and payment of damages
substantial
Gives rise to liability for damages
casual
obligation to do
EX PERSONA
obligation to give
EX RE
