Chapter 4: General Theory Of Obligations

Question 1

Obligation concept

Answer 1

Obligations consist on giving, doing or refraining from doing something

Question 2

Obligations elements

Answer 2

• Subjective elements
• Objective elements
• Legal binding

Question 3

Subjective elements in obligations

Answer 3

• Creditor

- Debtor

Question 4

Synallgamatic obligation

Answer 4

The role of creditor and debtor should be performed simultaneously and reciprocally

Question 5

Objective elements in obligations

Answer 5

• Possibility
• Lawfulness
• Determination

Question 6

Possibility as objective element

Answer 6

The consideration is achievable

Question 7

Lawfulness as objective element

Answer 7

Consideration must be lawful and adjusted to morality and public order

Question 8

Determination as objective element

Answer 8

Consideration must be determined or determinable

Question 9

Legal binding in obligations

Answer 9

Link between creditors and debtors until the obligation is extinguished

Question 10

Sources of obligations

Answer 10

• Law
• Contracts
• Obligations born from fraud or negligence
• Special cases

Question 11

Law as source of obligation

Answer 11

Obligations arising from the law should not be presumed, only expressly established

Question 12

Contracts as source of obligation

Answer 12

• It entails the existence of an agreement between at least two people
• Parties may agree on any conditions they want as long as they are according to the law

Question 13

Obligations born from fraud or negligence

Answer 13

A person who, as a result of an action or omission, causes damage to another through his fault or negligence shall be obliged to repair the damage caused

Question 14

Kinds of obligations

Answer 14

• For type of consideration

- For the way of compliance

Question 15

Obligations for the type of consideration

Answer 15

• Obligations of giving something
• Obligations of doing something
• Obligations of not doing something

Question 16

Obligations of giving something

Answer 16

• General: Transfer of possession or property

- Pecuniary: Giving money

Question 17

Obligations of doing something

Answer 17

• Obligations of means: just carrying out the activity

- Obligations of result: a result is expected

Question 18

Obligations of not doing something

Answer 18

Requires the debtor to refrain from executing the prohibited action

Question 19

Obligations fr the way of compliance

Answer 19

• Pure, conditional and term obligations
• Alternative vs facultative
• Joint vs Joint several
• Specific vs generic
• Obligations with penalty clause

Question 20

Pure obligations

Answer 20

Enforceable from the time the obligation is born

Question 21

Conditional obligations

Answer 21

Whose effects depend on the production of certain event.

• Condition precedent
• Condition subsequent

Question 22

Term obligations

Answer 22

Those for whose fulfillment a future date is set

Question 23

Alternative obligations

Answer 23

The creditor offers different ways of compliance

Question 24

Facultative obligations

Answer 24

The creditor may offer another alternative at the time of compliance

Question 25

Joint obligations

Answer 25

Creditor can only claim each debtor for their part of the debt

Question 26

Joint and several obligations

Answer 26

The creditor can claim the whole credit to each one of the debtors, then that debtor shall be compensated by the rest

Question 27

Specific obligations

Answer 27

The object of the obligation is specifically determined

Question 28

Generic obligations

Answer 28

The object of the obligation is determined for reference to its kind

Question 29

Obligations with penalty clause

Answer 29

Persons who, while performing an obligation, were to incur in malice, negligence or default shall compensate the creditor

Question 30

Purpose of penalty clauses

Answer 30

- Dissuades debtor from non-fulfilment | - Determines in advance the damages and prejudices from not performing the obligation

Question 31

Features of penalty clauses

Answer 31

- Subsidiary: if the clause disappears the obligation is still there - Substitutive: the penalty clause substitutes to any other obligation

Question 32

Special cases in the fulfilment of an obligation

Answer 32

- Payment done by a third party - Payment done by a representative - payment done to an apparent creditor

Question 33

Conditions necessary for the release of the debtor in case of an apparent creditor

Answer 33

- Good faith of the debtor, who didn’t know the person he paid was neither creditor nor a repressentative - The possession of the credit

Question 34

Cases for exctinction of obligations

Answer 34

- Loss of object due - Remission - Confusion - Compensation - Novation

Question 35

Loss of object due

Answer 35

Obligation is extinguished when the due thing is lost without the fault of the debtor. - Cannot be caused by the fault of the debtor - Should happen before the time of performance - The loss cannot affect to generic thing

Question 36

Exctinction by remission

Answer 36

Voluntary renunciation of the creditor to his right. - Express: voluntary declaration - Tacit: the will of the creditor may be inferred for his behaviour

Question 37

Extinction by confusion

Answer 37

Obligation shall be extinguished from the moment when the condition of creditor and debtor are combined in a single person

Question 38

Exctinction by compensation

Answer 38

Obligation disappears when debtor and creditor are reciprocally creditors and debtors to one another

Question 39

Exctinction by novation types

Answer 39

- Extinctive novation | - Modificative novation

Question 40

Exctinctive novation

Answer 40

A new obligation replaces the former, being both incompatible

Question 41

Modificative novation

Answer 41

Modification of the same obligation - Change of terms - Change of debtor - Change of creditor