Chapter 15: TerminAtion Of Obligations Flashcards
Can novation carry a suspensive condition, explain
Yes! Novation comes alive the moment the condition is fufilled
Can novation carry a resolutive condition?
Yes! Original obligation is revived once condition is fulfilled
What is the replacement of a debtor by novation known as (with party aggreance)
Delegation
What must be proved before rights can be waived?
Party knew about rights and deliberately chose to abandon them
WhAt is the difference between a waiver and a release agreement! Give example
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)
What is a debt-extinguishing agreement?
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)
What is done if there is an absence of agreement on the time of performance?
Performance due when creditor demands…. But must be a reasonable amount of time
What will the court consider ,In absence of agreement, to determine place to perform
Place of contracting Place where goods are situated Usages Nature of performance PPUN
What is the type of third party authorized to to receive performance (not agent)
Adjectus solutionis causa
When can creditor refuse a 3rd party performance
If performance is personal in nature(actor)= delectus personae
If a 3rd party acts on behalf of the debtor, can they be reimbursed? Explain
Yes! Either through negotiorum gestio(managing another’s affairs) OR unjustified enrichment
Based on…..contract of mandate
General rule of 3rd party performance (rebuttable presumption)
Person who agreed to perform is one that should perform (contra 3rd person)
Payment made by check- check dishonored- creditor may sue on?
- original obligation
- obligation created by check
On what grounds can creditor sue if a substitute performance(only if accepted by creditor) is defective
- original obligation
- defect of substitute performance
creditor may accept a different performance, what is this known as??
Datio in solutum
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?
The contra proferentem rule applies
No offer to compromise may be inferred if the creditor. Ay sue for outstanding amount
What happens if the debtor breaches an agreement of compromise?? (Ito of suing debtor)
Creditor can only sue on old obligation if this is what is expressly or tacitly agreed on by parties
What does the principle of effluxion of time state?
If a contract fixes a specific period for its duration it will terminate at the end of that period
Section 14(2)(b) of the CPA states that….
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
What does sec 14(2)(d) state
What is the aim?
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
A continuous contract is normally terminable upon a……..
Also the main aspect of termination by notice!
Reasonable notice
Requirements for a set-off of debts
- Debt must exist between two same persons in same capacities
- Debt must be of same kind or nature
- Both debts must be due and enforceable
- both debts must be liquidated (damages NOT liquidated)
If a debt cannot be set-off because one debt is not liquidated what can creditor do?
Claim it in reconvention
What is a merger
When one person becomes both debtor and creditor in respect of a certain debt
Obligations are extinguished by merger
Requirements for supervening impossibility of performance
- OBJECTIVE impossibility(no one can perform) (note 3 others)
- Impossibility must be unavoidable by reasonable person (impossibility must not be due to fault but rather event)
Discuss the effect that voidneas has on the original obligat and novation(both ways)
Original obligation is void= novation is void
Novation is void= original obligation is still valid
When is supervening not applicable?
- debtor is in mora
- undertook risk for performance becoming impossible (expressly or tacitly)
Duty of parties once obligation becomes extinct (ito supervening and counter obligation)
Obligation to return performance….enforceable through enrichment action
What if divisible obligation is only partially impossible?(supervening)
Debtor will be released only from those parts rendered impossible
What if an indivisible had become partially impossible?
Option 1: accept partial performance for reduced price
Option 2: escape contract
If essence of contract is still possible, which rule applies and what does it mean?
De minimis rule(party cannot escape eobligations)
Exception: temporary impossibility which is betond reasonable time
What is extinctive presciption? Regulated by?
NOTE APPLICATION
The extinction of obligations by lapse of time
Regulated by chapter 2 of prescriptions act
Applies only to DEBTS
Which debts have a 30 year prescription period
1.debts secured by mortgage bond
2judgment dept
3. In respect to any taxation imposed
4. Debt owed to the state (profits,loyalties)
When does prescription begin to run?
(2),(3),(4)–> commences to run
as soon as debt is due
