obligations Flashcards
Which of the following is an example of circumstances under which a natural obligation arises?
a. a contract to sell immovable property is unenforceable bc it is not in writing
b. a borrower enters into an unenforceable agreement to pay interest at a usurious rate
c. a civil obligation has been extinguished by prescription
d. a contract unenforceable bc predicated on unlawful cause
e. all
c. a civil obligation extinguished by prescription
what is an obligation
legal relationship between two or more parties where an obligor owes a performance in favor of an obligee and the performance is legally enforceable. duty of good faith on all parties
what is a natural obligatioN?
exists only where the law implies a moral duty to render performance. Obligations extinguished by prescription are the most common examples of natural obligations. The law does not imply a moral duty to render performance on an unlawful cause. The illegality of the cause provides good reason for refusing to give agreement effect.
A natural obligation:
a. arises from circumstances in which the law implies a particular moral duty to render a performance
b. is enforceable by judicial action
c. arises when a party agrees to a performance that is contra bonos mores
d. is not onerous cause for a promise to fulfill it
e. all of the above
a. arises from circumstances in which the law implies a particular moral duty to render a performance.
what are the three primary effects of a natural obligation?
a. not enforceable by judicial action
b. performance freely rendered cannot be reclaimed
c. a new contract made for the performance of a natural obligation is onerous, not gratuitous. New promise to perform will elevate debt into a fully enforceable obligation, but it must be express in a language that shows “a clear, distinct, and unequivocal recognition and renewal of debt as a binding obligation” anything short of this is insufficient. Mere acknowledgement is not enough
what are examples of natural obligations?
prescribed debt, bankruptcy debt, obligation by one who lacks capacity, dispositions in a will that is null for want of form. Step fathers duty to pay medical expenses of adult step son, employees duty to reimburse her employer for bad third party check she accepted against employment manual
What are the types of obligations?
personal, heritable, conditional
what is the difference between a real right and a real obligation?
a real right is a right in a thing that is good against the world, a real obligation is an obligation incurred as a result of a real right. The obligation follows the thing when it is a real obligation (a personal obligation does not)
what is a personal obligation?
a strictly personal obligation is only enforceable by the original obligee or against the original obligor and is not heritable. It is presumed strictly personal for obligor if its performance requires special skill or qualification or if it is to perform personal services. It is strictly personal for obligee if performance is meant for that obligee’s exclusive benefit.
What is a heritable obligation?
an obligation is heritable if it can be enforced by or against the successors of the original obligors and obligees and is transferrable
what is a conditional obligation?
an obligation whose occurrence depends on an uncertain event. Uncertainty is key, if it is certain to occur it is not conditional but subject to a term. It may be suspensive or resolutory.
A resolutory condition:
a. prevents enforcement of an obligation until an uncertain event occurs
b. causes an obligation to come ot an end when an uncertain event occurs
c. that depends solely on whim of obligor make obligation null
d. is implied in every synallagmatic contract
e. is satisfied when a corporate officer produces authentic evidence of a resolution authorizing his execution of a contract
b. causes an obligation to come ot an end when an uncertain event occurs.
what is a resolutory condition?
obligation is immediately enforceable but ends if uncertain event occurs
what is suspensive condition
obligation not enforceable unless and until the uncertain event occurs
what is a potestative condition
one whose fulfillment is within a party’s power. the only null potestative conditions are suspensive potestative conditions whose fulfillment depends on obligors “whim”
What is a suspensive potestative condition
an obligation with a suspensive condition that depends solely on the whim of the obligor (this is null)… but if it depends on obligors “will” it is valid. (Whim means dependant entirely on his unbridled discretion, Will is a considered weighing of interest or exercise of reasonable discretion)
what is resolutory potestative condition
an obligation with resolutory conditions whose fulfillment is within a party’s power, not null but conditions must be exercised in good faith.
what are the three types of obligations with multiple persons?
several (obligation when separate performances are owed)
joint (one performance owed, no obligor bound for the whole, no obligee entitled to the whole)
solidary (obligors- each owes whole performance, solidary for obligees when each is entitled to recieve whole performance)
An obligation is solidary for the obligors:
a. when different obligors owe together just one performance to obligee but neither is bound for the whole
b. only when the obligation derives from same source for each obligor
c. when each obligor is liable for the whole performance
d. when an obligor is bound to render only one of two or more items of performance
e. when each of different obligors owes a separate performance to one obligee
c. when each obligor is liable for the whole performance
when an obligation is alternative:
a. the obligor is bound to multiple items of performance that must be separately rendered or enforced, each item being regarded as the object of a separate obligation
b. the choice of the item of performance belongs to the obligee unless it has been expressly or impliedly granted to the obligor
c. the obligor is bound to render only one of two or more items of performance
d. the obligor may perform the obligation by rendering as performance a part of one item and part of another
e. the obligation is extinguished if one of several items contemplated in the alternative obligation becomes impossible or unlawful without obligors fault
c. the obligor is bound to render only one of two or more items of performance
what is an alternative obligation
obligor is bound to render one of two or more items of performance (ex. may return thing or pay value)
what is a conjunctive obligation
obligor must render multiple items of performance, each of which may be separately rendered
what is a divisible obligation
object of performance may be divided
what is indivisible obligation
object of performance, by its nature or agreement, is not susceptible to division
In the case of an assumption agreed upon by an obligee and an assuming obligor:
a. the agreement effects a release of the original obligor
b. the assuming obligor may raise against the obligee any defense based on the relationship between the obligor and original obligee
c. the assuming obligor may invoke compensation based on an obligation owed by the obligee to the original obligor
d. the assuming obligor is subrogated by law to the rights of original obligor
e. the agreement between the assuming obligor and obligee must be made in writing
e. agreement between assuming obligor and obligee must be made in writing
How does assumption arise?
conventional assumption of an obligation may arise by agreement between the obligor and a third person, or by agreement between the obligee and a third person.
An agreement between obligor and third person wher ethird person agrees to assume obligation is enforceable against the third person by the obligee IF MADE IN WRITING.
Agreement between obligee must also be IN WRITING.
subrogation occurs when:
a. one person is substituted to the legal rights of another
b. an obligor and third person agree to an assumption by the latter of an obligation of the former
c. two persons owe each other money
d. by agreement of the parties, a new performance is substituted for that previously owned
e. a new obligor is substituted for a prior obligor who is discharged by obligee
a. one person is substituted to the legal rights of another
subrogation is:
a. an assumption by a third person of an obligation of an obligor
b. the extinguishment of a new obligation by the substitution of a new one
c. an agreement under which a new obligor is substituted for a prior obligor who is dicharged by obligee
d. the substitution of one person to the rights of another
e. the extinguishment of obligations arising by operation of law
d. the substitution of one person to the rights of another
Which of the following is not ground for extinction of obligation?
a. performance
b. novation
c. subrogation
d. remission
e. confusion
c. subrogation
what are the effects of subrogation?
the obligation is extinguished only for the original obligee, however the obligation itself remains for the new obligee
what are the two types of subrogation/ define them
Conventional and Legal
Conventional may arise by agreement with either the obligor or obligee. Subrogation by agreement with obligor is effective without obligee’s consent. Must be in writing and must state that the purpose of hte loan is to pay the debt. Governed by rules for assignment of right.
Legal takes place in 5 situations: when one obligee pays another with superior rights; when a purchaser of property uses the money to pay a creditor with a real right to the property; when an obligor who owes debt with others pays that debt and has recourse; when a successor pays an estate debt with his own funds; when the law provides for it to the extent he has performed.
What is needed to show proof of obligations
party demanding performance must prove existence of the obligation. Some must be in writing, may be proved by testimony only when instrument destroyed, lost, stolen.
what is an authentic act?
in front of notary and two witnesses, signed by all parties
what is act under private signature duly acknowledged
originally executed without a notary present, but a party thereafter acknowledges the signature before a court or before a notary and two witnesses
act under private signature
signed but not necessarily written by the parties
when the law requires a contract to be in written form , the contract may not be proved by testimony or presumption unless:
a. the consent of one of the parties to the contract was vitiated by a vice of consent
b. the written instrument has been destroyed, lost, stolen
c. proof of the contract is established by at least one witness and other corroborating circumstances
d. both parties to the admit its existence when interrogated on oath
e. the proponent of has made valid tender of performance
b. the written instrument has been destroyed, lost, or stolen
what transfers must be in writing to be effective?
immovable property
mandate authorizing transfer of immovable
promise to pay the debt of a third person
promise to pay debt extinguished by prescription
compromise
suretyship
a transfer of immovable property:
a. must be made by authentic act
b. is never valid unless in writing
c. is valid even though agreement of transfer is oral, if the property has actually been delivered and the transferor recognizes the transfer when interrogated on oath
d. has effect agains tthird person only from time instrument is filed in parish of domicile
e. is effective between the parties only if passed before notary
c. is valid even though agreement of transfer is oral, if the property has actually been delivered and the transferor recognizes the transfer when interrogated on oath
what extinguishes obligations?
Performance Impossibility Novation Remission of Debt Compensation Confusion
The extinction of the principal obligation:
a. extinguishes ordinary suretyship for the obligation but does not extinguish commercial suretyship
b. extinguishes suretyship for the obligation but not mortgage securing obligation
c. extenguishes all mortgages securing obligation, but not suretyship
d. extinguishes both suretyship and mortgages securing the obligation
e. has no effect on either suretyship or mortgages securing the obligation
d. extinguishes both suretyship and mortgages securing the obligation
what is impossibility of performance (rule)
an obligor is not liable when failure to perform is caused by fortuitous event that makes performance impossible, unless he has assumed the risk of loss by fortuitous event or has been put in default before the event occurred. The exception is if the fortuitous event woudl have destroyed the object had it been in the hands of the obligee and timely rendered, the obligor is not liable except for delay damages. If entire performance is impossible contract is dissolved.
an obligor in good faith who fails to perform a conventional obligation is liable:
a. only for damages foreseeable at time of
b. only for moratory damages
c. for all damages as a direct consequence of his failure to perform
d. for all damages including nonpecuniary losses
e. for damages that might have been avoided by reasonable efforst to mitigate
a. only for the damages foreseeable at time of k
what is novation
extinguishment of an existing obligation by the substitution of a new one. This is never presumed, intent must be clear and unequivocal. Objective novation changes the object, subjective replaces the person.
rescission available based on error, fraud, duress (know when fraud vitiates consent), or for impossibility of performance.
which of the following is correct:
a. novation is extinguishment of an existing obligation by the substitution of a new one
b. objective novation is when new obligor is substituted
c. novation made by obligee and one of obligors of solidary obligation does not effect a release of the other solidary obligors
d. execution of a new wirting and modification of obligation, made without intent to extinguish are examples of novation
e. all of above
a. novation is extinguishment of an existing obligation by the substitution of a new one
what is remission of debt?
voluntary relinquishment by obligee of right to demand performance. Presumed when surrender of document that evidences obligation but not when obligee releases real security. Acceptance by obligor is required. Remission of debt in favor of principal obligor releases sureties, but remission in favor of sureties does not release obligor.
a remission of debt:
a. may be express or tacit
b. is presumed to exist when obligee voluntarily surrenders to the obligor the instrument evidencing obligation
c. that is granted to principal obligor releases surety
d. is effective when the obligor receives communication of remission from obligee
e. all of above
e. all of above.
Remission of debt:
a. is effective only when express
b. granted to surety releases principal obligor and all other sureties
c. granted to one surety, release other sureties only to extent of contribution they might have recovered from the surety to whom remission was granted
d. is not effective until the obligor expressly accepts remission
e. is presumed to arise from the release of a real security given for performance of debt.
c. granted to one surety, release other sureties only to extent of contribution they might have recovered from the surety to whom remission was granted
what is compensation?
(offset) a method of extinguishing two obligations simultaneously. Occurs by operation of law when two requirements are met:
1. two persons owe each other money or fungible things identical in kind
and
2. those sums or quantities are liquidated and presently due
It extinguishes both obligations
What is confusion?
civil law counterpart to merger. exists when obligee and obligor become same person. extinguishes obligation except when it is a surety.
