Chapter 15: TerminAtion Of Obligations Flashcards

1
Q

Can novation carry a suspensive condition, explain

A

Yes! Novation comes alive the moment the condition is fufilled

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2
Q

Can novation carry a resolutive condition?

A

Yes! Original obligation is revived once condition is fulfilled

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3
Q

What is the replacement of a debtor by novation known as (with party aggreance)

A

Delegation

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4
Q

What must be proved before rights can be waived?

A

Party knew about rights and deliberately chose to abandon them

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5
Q

WhAt is the difference between a waiver and a release agreement! Give example

A

Waiver- party who has right/remedy solely for own benefit abandons right/remedy (suspensive condition)
Release agreement- creditor releases debtor from obligations (remeber–> whole or part)

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6
Q

What is a debt-extinguishing agreement?

A

Agreement that a certain action fulfills obligation
A buys chair from B ( they agree that delivery is the point at which they obligation has been fulfilled- not transfer or etc)

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7
Q

What is done if there is an absence of agreement on the time of performance?

A

Performance due when creditor demands…. But must be a reasonable amount of time

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8
Q

What will the court consider ,In absence of agreement, to determine place to perform

A
Place of contracting
Place where goods are situated
Usages
Nature of performance 
PPUN
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9
Q

What is the type of third party authorized to to receive performance (not agent)

A

Adjectus solutionis causa

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10
Q

When can creditor refuse a 3rd party performance

A

If performance is personal in nature(actor)= delectus personae

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11
Q

If a 3rd party acts on behalf of the debtor, can they be reimbursed? Explain

A

Yes! Either through negotiorum gestio(managing another’s affairs) OR unjustified enrichment
Based on…..contract of mandate

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12
Q

General rule of 3rd party performance (rebuttable presumption)

A

Person who agreed to perform is one that should perform (contra 3rd person)

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13
Q

Payment made by check- check dishonored- creditor may sue on?

A
  • original obligation

- obligation created by check

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14
Q

On what grounds can creditor sue if a substitute performance(only if accepted by creditor) is defective

A
  • original obligation

- defect of substitute performance

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15
Q

creditor may accept a different performance, what is this known as??

A

Datio in solutum

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16
Q

What is the view when a debtor has not made it clear whether an offer of compromise is intended or whether he simply intends to pay the part of the debt he admits to?

A

The contra proferentem rule applies

No offer to compromise may be inferred if the creditor. Ay sue for outstanding amount

17
Q

What happens if the debtor breaches an agreement of compromise?? (Ito of suing debtor)

A

Creditor can only sue on old obligation if this is what is expressly or tacitly agreed on by parties

18
Q

What does the principle of effluxion of time state?

A

If a contract fixes a specific period for its duration it will terminate at the end of that period

19
Q

Section 14(2)(b) of the CPA states that….

A

Ito a consumer-supplier contract for a fixed term- a Consumer may cancel an agreement at any time by giving the supplier 20 business days working notice
Supplier can impose reasonable penalty fee

20
Q

What does sec 14(2)(d) state

What is the aim?

A

On expiry of fixed term….agreement will be automatically continued on month to month basis as long as consumer did not expressly state termination OR renewal of the contract
Aim: prohibition kf automatic renewal

21
Q

A continuous contract is normally terminable upon a……..

Also the main aspect of termination by notice!

A

Reasonable notice

22
Q

Requirements for a set-off of debts

A
  1. Debt must exist between two same persons in same capacities
  2. Debt must be of same kind or nature
  3. Both debts must be due and enforceable
  4. both debts must be liquidated (damages NOT liquidated)
23
Q

If a debt cannot be set-off because one debt is not liquidated what can creditor do?

A

Claim it in reconvention

24
Q

What is a merger

A

When one person becomes both debtor and creditor in respect of a certain debt
Obligations are extinguished by merger

25
Q

Requirements for supervening impossibility of performance

A
  1. OBJECTIVE impossibility(no one can perform) (note 3 others)
  2. Impossibility must be unavoidable by reasonable person (impossibility must not be due to fault but rather event)
26
Q

Discuss the effect that voidneas has on the original obligat and novation(both ways)

A

Original obligation is void= novation is void

Novation is void= original obligation is still valid

27
Q

When is supervening not applicable?

A
  • debtor is in mora

- undertook risk for performance becoming impossible (expressly or tacitly)

28
Q

Duty of parties once obligation becomes extinct (ito supervening and counter obligation)

A

Obligation to return performance….enforceable through enrichment action

29
Q

What if divisible obligation is only partially impossible?(supervening)

A

Debtor will be released only from those parts rendered impossible

30
Q

What if an indivisible had become partially impossible?

A

Option 1: accept partial performance for reduced price

Option 2: escape contract

31
Q

If essence of contract is still possible, which rule applies and what does it mean?

A

De minimis rule(party cannot escape eobligations)

Exception: temporary impossibility which is betond reasonable time

32
Q

What is extinctive presciption? Regulated by?

NOTE APPLICATION

A

The extinction of obligations by lapse of time
Regulated by chapter 2 of prescriptions act
Applies only to DEBTS

33
Q

Which debts have a 30 year prescription period

A

1.debts secured by mortgage bond
2judgment dept
3. In respect to any taxation imposed
4. Debt owed to the state (profits,loyalties)

34
Q

When does prescription begin to run?

A

(2),(3),(4)–> commences to run

as soon as debt is due