Unit 10 Flashcards
What is the general theory of obligations?
Legal relationship by which one person can demand from another person a certain behaviour or performance, which will be required to comply.
(can require to do or not do something or give something)
What are the sources of Obligations?
1-THE LAW
obligations arising from the direct imposition of the law
2-CONTRACTS
agreements that generate patrimonial rights and obligations for those who celebrate them. it binds the parties to the contract
3-ACTS OR OMISSION INVOLVING ANY KIND OF FAULT OR NEGLIGENCE
obligation to compensate for damages
Describe the difference between “joint” and “joint and several” when it comes to contractual obligations
Joint:
the debt or credit is understood to be divided into as many parts as there are debtors or creditors
[obligation is distributed uniformly]
Joint and Several:
the debt or credit is considered unique
any creditor can demand from any debtor to pay the entirety of the debt
Describe the Extinsion of Obligations
1-PERFORMANCE
(compliance or payment)
when the debtor performs the due contract by virtue of the obligational relationship
(100% of the obligation must be fulfilled within the established term)
2-CONFUSION
when the condition of creditor and debtor are confused in the same person with respect to the same obligation
3-SETOFF
two people are reciprocally creditors and debtors to one from the other
if both obligations are coincident in the economic valuation, they could both be extinguished both for the totality; if they are not coincident, it could be extinguished up to the concurrent amount
4-REMISSION
the creditor voluntarily renounces the credit
5-NOVATION
when by express agreement between the parties to the obligation; it is replaced with a different one
6-PRESCRIPTION AND EXPIRATION
the obligation is extinguished by the passage of time (for legal certainty)
Describe Breach of obligation and the different types
non-compliance by the debtor, attributable to itself
creditor may demand compulsory compliance unless the cause occurred by change “force majeure”
Types:
Emerging Damage:
patrimonial loss suffered by the creditor derived from the default of the debtor.
Loss of profit:
profit lost due to non-compliance
Non-pecuniary damages:
the mental suffering or illness that originated in the breach
What are the elements of a contract?
1- Consent of the contracting parties
consent is provided by people with capacity to act, consciously and freely.
consent given by mistake, violence, intimidation or fraud
2-Object
they are the goods or services on which the contract rests: the obligation
3-Cause
for each contracting party, the provision or promise of a thing or service by the other party
Define commercial contract
the one that arise as an instrument to regulate the relations, legal aspects,of the professional activity of the entrepreneur in the market
What are the Specialties of commercial obligations?
a) Deadline for compliance with the payment of commercial obligations
The autonomy of the will is limited: 30 calendar days if there is no term fixed in the contract
(dispositive rule, maximum 60 days).
b) Delinquency in compliance
The effects of default occur automatically (computation of interest,…)
c) Presumption of joint and several obligation if otherwise is not expressly agreed
(jurisprudential doctrine)
Define a buy and sell contract and explain when these can be described ad commercial
A contract by which a person (natural or legal), the seller undertakes to deliver one thing to another, the buyer, who agrees to pay a price.
These are commercial if the sale is made by entrepreneurs to entrepreneurs who is going to adopt this purchase in his business activities
What is the obligation regime for the seller?
DELIVERY OBLIGATIONS
Deliver the thing sold, at the agreed time and place, placing it in the possession of the buyer.
WARRANTY OBLIGATIONS
1- no eviction:
guarantee of the legal and peaceful possession of the thing acquired
2- no defects:
the thing will be delivered without defects, without differences with respect to what was expected to be received.
deadline to report:
- for apparent vices or defects –> upon delivery
-hidden flaus or defects: within 30 days
What is the obligation regime for the Buyer?
PAYMENT
at the time and place established in the contract, failing taht, before 30 days from the delivery of the goods
if the buyer defaults:
-automatic accrual of interest from the following day
-faculty of the seller to terminate the contract
RECEPTION
- at the agreed place and time
- it is presumed that the provision of the buyer is in the establishment of the seller
- If the buyer refuses, without just cause the receipt of the purchased merchandise, he will be incurringin breach of contract. (default)
the seller can
-demand compliance by judicially depositing the merchandise or guarding the good
-terminate the contract
