Chapter 4 Section 6 (Novation) Flashcards
Obligations may be modified by: (1) Changing their ______ or principal conditions; (2) Substituting the person of the _____; (3) _______ a third person in the rights of the creditor.
object, debtor, Subrogating
Novation is:
The total or partial extinction of an obligation through the creation of a new one which substitutes it
Novation is a contract containing two stipulations:
one to extinguish or modify an existing obligation, the other to substitute a new one in its place
T/F: Novation operates as an absolute extinction of an obligation.
False. It does not operate as an absolute but only as a relative extinction of an obligation which is only “modified”
Kinds of Novation:
1.) According to origin a.) Legal b.) Conventional 2.) According to how it is constituted a.) Express b.) Implied 3.) According to extent or effect a.) Total or extinctive b.) Partial or modificatory 4.) According to the subject a.) Real or objective b.) Personal or subjective c.) Mixed
Legal Novation:
takes place by operation of law
Conventional Novation:
takes plae by agreement of the parties
Express Novation:
When it is so declared in unequivocal terms
Implied Novation:
When the old and the new obligations are essentially incompatible with each other
Total or extinctive Novation:
When the old obligation is completely extinguished
Partial or modificatory Novation:
When the old obligation is merely modified, i.e., the change is merely incidental to the main obligation
Real or objective Novation:
When the object or principal conditions of the obligation are changed
Personal or subjective Novation:
When the person of the debtor is substituted and/or when a third person is subrogated in the rights of the creditor
Mixed Novation:
When the object and/or principal conditions of the obligation and the debtor or the creditor, or both the parties, are changed. It’s a combination of real and personal novations
Art. 1292: In order that an obligation may be extinguished by another which substitute the same, it is imperative that it be so declared in _____ terms, or that the old and the new obligations be on every point _____ with each other
unequivocal, incompatible
Requisites of Novation:
1.) Previous valid obligation 2.) Capacity and intention of the parties to modify or extinguish the obligation 3.) The modification or extinguishment of the obligation 4.) The creation of a new valid obligation
T/F: Novation may be presumed.
False. Novation is never presumed. It must be clearly and unmistakable established either by the express agreement of the parties or acts of equivalent import or by the incompatibility of the 2 obligaions with each other in every material respect.
The burden of showing novation is on the party who ____
claims its existence
Choose the correct answer: If two obligations cannot stand together, the (subsequent/first) obligation novates the (subsequent/first).
subsequent, first
Art. 1293: Novation which consists in substituting a new debtor in the place of the original one, may be made even without the ______ or ___________, but not without the ______. Payment by the new debtor gives him the rights mentioned in articles 1236 and 1237
knowledge, against the will of the latter, consent of the creditor
Kinds of Personal Novation:
1.) Substitution (the person of the debtor is substituted) 2.) Subrogation (a third person is subrogated in the rights of the creditor)
Kinds of Substitution (a kind of personal novation)
1.) Expromision (that which takes place when a third person of his own initiative and without the knowledge or against the will of the original debtor assumes the latter’s obligation with the consent of the creditor. It logically requires the consent of the third person and the creditor) 2.) Delegacion (that which takes place when the creditor accepts a third person to take place of the debtor at the instance of the latter. The creditor may withhold approval. In delegacion, all the parties, the old debtor, the new debtor, and the creditor must agree.)
T/F: Creditor’s consent is necessary in both modes of substitution. (State why True/False)
True because the substitution implies a waiver by the creditor of his credit and it may be prejudicial to him. Prejudice in the form of delay in the fulfillment of the obligation or contravention of its tenor, or non-performance thereof by the new debtor, by reason of his financial inability or insolvency.
In expromision, payment by the new debtor gives him the right to ____ under the second paragraph of Art. 1236.
beneficial reimbursement