Topic 6 - the obligation Flashcards
The Obligation
Legal relation between two persons leading to one of them obtaining goods or services from the other person, secured by all the patrimony of the person obliged.
Article 1088 C.C.:
Article 1088 C.C.: “Every obligation consists on giving, doing or not doing something.”
The obligation is a two-fold situation:
Debtor: subject to an obligation which can be legally asked for.
Creditor: the owner of a personal right that empowers him to ask the debtor for what is due.
The obligation means both the right of the creditor and the duty of the debtor (duty of performance).
The breach of the duty of performance generates…….?
The breach of the duty of performance generates an obligation to give compensation.
Obligation:
- Debt: the obligation to behave in a certain manner.
- Liability: universal patrimonial liability; the creditor can attack all of the debtor´s patrimony to satisfy his credit.
Art. 1911 C.C.: “A debtor is liable for the performance of his obligations with all of his current and future assets.”
Sources of obligations:
Sources of obligations:
- Law
- Contracts
- Quasi-contracts: collection of non-existing debt,negotiorum gestio (principle of unjust enrichment)
- Illicit acts or omissions or those in which any kind of fault or negligence intervene (non contractual liability).
1.- Persons subject to the obligation
- Creditor: who holds the right of credit.
- Debtor: who has to fulfil the obligation.
- Possibilities:
. One person in each role.
. Several persons in any of the roles.
. Several persons in one role and only one in the other. - Natural or artificial?
2.- Object of the obligation
It´s the duty of performance, the behaviour that the creditor can ask from the debtor (giving, doing or not doing something).
Requirements:
. Possible.
. Lawful: it cannot go against the law or the morals.
. Determined or subject to determination.
. Patrimonial: subject to valuation in case of non-performance.
3.- Bond created by the obligation
Link created by the obligation between debtor and creditor, between credit and debt.
Types of obligation
Obligations depending on the persons subject to it:
. Usually, obligations have one creditor and one debtor, but it is not always the case.
. Several creditors: active obligations.
. Several debtors: passive obligations.
. Several creditors and debtors: mixed obligations.
Types of obligation:
Joint obligations
Passive: each of the debtors only has to fulfil the part of the performance which corresponds to him. The creditor cannot ask one of the debtors to fulfil the totally of the performance.
Active: each of the creditors can only ask the debtor for the part that corresponds to his credit.
If the degree of participation of each debtor or creditor is not stated by the parties, the credit or the debt shall be presumed to be divided in as many equal parts as there are creditors and debtors.
Types of obligation:
Joint and several obligations (solidarity)
Each creditor has the right to ask and each debtor has the obligation to fulfil the whole performance.
Active solidarity: any of the creditors can ask the debtor for full performance of the debt.
Passive solidarity: the creditor may sue any of the debtors for the total performance (see procedural point of view).
If one of the debtors performs the obligation, he extinguishes the debt but he can claim each of the other debtors for their part.
Obligations are presumed to be joint. Solidarity needs to be expressly determined (see case law on non contractual liabilitity).
2) Obligations depending on the bond.
and consequences
a) Unilateral and bilateral obligations.
. Unilateral: only one of the parties has a duty of performance.
. Bilateral: both parties are obliged, there is reciprocity.
consequences of obligations depending on the bond A) unilateral and bilateral.
Consequences:
- When one of the parties does not fulfil his obligation the other party can terminate his own, or ask the other for performance with a claim of damages in both cases (art. 1.124 C.C.) - None of the parties shall incur in (delinquency) if the other one does not fulfil either. From the moment one of the parties fulfils, delinquency starts for the other. b) Pure and conditional obligations and obligations subject to a term. 1. Pure obligations: can be asked to be performed from the moment of constitution of the obligatory relation. 2. Conditional obligations: the performance and effects depend on a future and uncertain event.
—–Suspensive condition: the condition suspends the effect of the obligation until such an uncertain event happens. When the condition takes place the conditional obligation turns into a pure obligation.
—–Resolutory condition: the condition entails that the obligation expires upon its taking place.
While the condition is pending, the obligation can be asked to be performed, but when the condition occurs, then the obligation is terminated.
Obligations subject to term: the performance and effects depend on a fixed date.
. The term established can be initial: the performance of the obligation can be asked for from the moment the term arrives.
. Or final: the arrival of the date entails the extinction of the obligation.
3) Obligations depending on the object
a. Positive and negative obligations.
b. Specific and generic obligations:
- Specific: the thing which is the object of the duty of performance is individually determined.
- Generic: the thing which is the object of the duty of performance is determined with regard to the goods pertaining to a kind of goods.
c) Divisible and indivisible obligations.
. Divisible: can be fulfilled in parts without altering the essence of the obligation. The divisibility of the performance has to be expressly agreed.
. Indivisible: they cannot be fulfilled bit by bit.
d) Principal and subordinate obligations.
- Principal: the duty of performance is the main object of the agreement.
- Subordinate: this obligation is accessory to a principal obligation. If the subordinate obligation disappears, the principal obligation is not affected, but not the other way around.
