Chapter 12 - Transfer & Temination Of Personal Rights Flashcards
Transfer of Personal Rights
Cession
The rights flowing from a contract are personal rights, that is, rights to claim performance by the other party to a contract.
Personal rights arise by
- Contracts
- Delict
- Unjust enrichment
An agreement between the holder of the right and to a third party, to the effect that the third party shall henceforth be the holder of the right.
Sam owes John R100, John owes David R100.
Thus John and David agree that John will transfer his claim against Sam to David.
Cession regulations
Cession can take place freely unless there is:
1 Agreement not to cede
2 Where the law prohibits cession
3 Where the identity of the debtors is important
Eg a doctor will not perform the same duties as a portrait painter.
** A cession must be ceded in its entirety unless debtor consents to cession of parts of the right
** Cession is effected without formality.
Consequence of Cession
1 - Once the cession take place, the personal right forms part of the cessionarys patrimony.
2 only the cessionary can claim the debt
3 once the right has ceded the credent cannot cede it to another person.
4 a cessionary should advise the debtor of the Cession, because if he does not, and the debtor pays the cedent in good faith, then the debtor is discharged from his liability to the cedent.
- if the debtors knows about the Cession and pays the cedent, he will not do so in good faith, and his debt is not discharged.
5 - personal rights are ceded together with all the benefits eg . Interest on money
6 - personal rights are also ceded together with all the disadvantages attached to the right.
Eg defenses that the debtor can raise against the cedent( misrepresentation, duress, undue influence)
Termination of personal rights
- Discharge
- Rescission and cancellation
- Agreement
- Merger
- Set Off
- Impossibility of Performance
- Prescription
- Sequestration and rehabilitation
- Discharge
- Rescission and cancellation
- Agreement
- Merger
- Set Off
- Impossibility of Performance
- Prescription
- Sequestration and rehabilitation
Discharge ( Fulfillment)
This is the performance of the obligation and is the natural way in which a contractual relationship is terminated.
If performance is a payment of money then default form is cash.
If a debtor owes a creditor in respect of several debts and the debtor can decide when what gets paid: if he does not then
- interest he told before capital
- due debts are paid before debts that are not due
- secured debts are paid before non secured debts
- old debts at rapid before new debts.
Rescission and Cancellation
Rescission is withdrawal as a result of misrepresentation, duress or undue influence. Thus when a contract is voidable.
Innocent party has choice to enforce or rescind.
Cancellation is withdrawal from a contract as a result of BOC.
**Agreement
3 Agreements which terminate contracts
Release
Novation
Delegation
At some stage after concluding contract parties can agree to end contractual relationship.
Parole could also agree in advance when they enter into the contract
May be tacit or express
May be required to be in writing.
- 3 TYPES -
Release
An agreement between the debtor and creditor that the creditor releases the debtor from his obligations.
Novation
Agreement between debtor and creditor where old obligations between them are extinguished and new obligation takes places.
- Only works if new Obligation is valid.
- may be subject to new conditions ( pay in settlements)
Delegation
- A form of novation where a new party is introduced and replaces one of the parties.
- can only take place with all the parties consent.
** difference between cession and delegation
Cession take place without debtors consent
Delegation can only take place with all the parties consent
Settlement
Parties dispute the existence of an old debt.
Novation is different because parties agree in existence of old debt.
Merger
When a person becomes both creditor and debtor in respect of the same obligation
- eg A lessee buys the leased property, debtor and creditor marry in community of property.
The merger terminates the obligation.
Set off
4 requirements
The extinguishing of debts owed reciprocally by two parties
4 Requirements
- debts must be similar in nature
- debts must be of exact value (liquidated)
- debts must be claimable.
- debts must be between same persons of the same capacity.
Super-veining impossibility of performance
Performance of Contract becomes impossible due to
Forces of nature, war, death or legislation.
Does not apply if one party assumed responsibility of performance.
Only objective IOP relieves both of obligations.
Subjective does not.
Prescription
Two types
Extinctive
Acquisitive
Extinctive prescription is the release of obligations from the passage of time.
Acquisitive prescription is the acquisition of rights through the passage of time.
Prescription starts as soon as claim is enforceable or as soon as creditor is aware of the debt.
Delaying of prescription
Delayed in the following circumstances:
- outside the country
- debtor and crisis are married to each other
- credit is a minor, insane or under curatorship.
- creditor is a juristic person and debtor is member of governing body
If delaying circumstances ceases less than a year before perception completed the creditor has 1 year form date until perception ends.
Debs can have their prescription periods revived by a reminder to the debtor that a debt is payable.
Perception periods
30 years
- mortgage bonds debts
- judgment debts
- debts in respect of taxation
- debts owed to sate in respect of mining minerals
15 years
- in respect of debts owed to state for loans of money, sale and lease of land.
6 years
- debts arising from Bills of exchange
3 years
- all other debts
