Understanding Obligations in Spanish Civil Law: Sources, Types, and Effects, Apuntes de Derecho Contractual

¡Descarga Understanding Obligations in Spanish Civil Law: Sources, Types, and Effects y más Apuntes en PDF de Derecho Contractual solo en Docsity! SESSION 6. THE OBLIGATION OBLIGATION . Content of obligations: The Code does not give us a concept of obligation, it only describes its contents. Article 1088 CC provides that every obligation consists on: Giving something Doing something Refraining from doing something (not doing something) The Obligation is a double legal situation: 1. There is the debtor, who is the subject to an obligation which can be legally asked for, and makes him behave in a certain manner. 2. There is the creditor, who's the owner of a personal right that empowers him to ask the debtor for what is due. The article 1911 CC provides that “a debtor is liable for the performance of his obligations which all of his current and future assets”. That means that the liability of the debtor consists on all his patrimony to satisfy his due. The object of the obligation has to comply with certain requirements: It has to be possible It has to be lawful It has to be determined or subject to determination. It can not be left up to discretion of one of the parties. It has to be patrimonial (in case of non-performance of the obligation . Sources of obligations: Article 1089 CC says that obligations can be born from 4 sources: . The law (article 1090 CC). They are not presumed and they need to be expressly determined by the Civil Code or special laws. Obligations also come from quasi-contracts. They are voluntary acts that even there's no agreement, the law makes the obligation to be born. There are 3 quasi-contracts: 1. The collection of non-existing debt; 2. Negotiorium gestio; 3. Unjust enrichment. Contracts (article 1091 CC) Criminal offenses (article 1092 CC) 4. Actions or omissions under fault or negligence (article 1093 CC) 3. Types of obligations: Depending on the object: A. Positive and negative obligations: Positive obligations are those in which the duty of performance consists on the obligation to give or do something. Negative obligations are those in which the right of performance consist on not doing something. B. Specific and generic obligations: In a specific obligation the thing which is the object of the duty of performance is individually determined. Article 1166 CC provides that in an obligation to give, the debtor of a thing can not compel his creditor to receive something different, even if its value is equal or greater than the thing due. In a generic obligation the thing which is the object of the duty of performance is determined which regard to the goods pertaining to a kind of goods. The obligation is fulfilled by delivering any object pertaining to such class. C. Simple and complex obligations: In a simple obligation there's only one object involved. In a complex obligation there's more than one object. There are 3 kinds of them: 1. Cumulative obligations: there are several objects in the obligation and all of them are subject to demand. 2. Alternative obligations: there are several objects in the obligation which shall be fulfilled performing only one of them. If one of the duties of performance becomes impossible, the debtor shall still perform the other one. The debtor can choose the object (article 1132 CC). The choice cause no effect until it is communicated. The debtor looses the right to choose when only one of the duties can be carried out (article 1134 CC). 3. Optional obligations: the debtor has an obligation towards the creditor but, at the time of the performance, he/she can substitute it for another obligation that the creditor could not ask for (for instance, because the object due has been lost and the debtor gives money in exchange). D. Divisible and indivisible obligations: Divisible obligations can be fulfilled in part without altering the essence of the obligation. If the obligation is naturally subject to division, the divisibility has to be expressly agreed. Indivisible obligations can not be fulfilled bit by bit, they have to be completely fulfilled. E. Principal and subordinate obligations: In a principal obligation the duty of performance is the main object of the agreement. A subordinate obligation is accessory to a principal obligation. If the subordinate obligation disappears, the principal obligation is not affected, but not the other way around. the debtors can perform by delivering the amount that corresponads to him on the value established for the good. The debtors who were ready to fulfill, will not have to contribute on the amount of money added in case of damages. B. Joint and several obligations: (obligaciones solidarias) In joint and several obligations each creditor has the right to ask and each debtor has the obligation to fulfill the whole right of performance (article 1137 CC). Solidarity is every advantageous for creditors because they can claim to any of the debtors the aim. - Effects on joint and several obligations: When the solidarity is active (several creditors), any of the creditors can ask the debtor for full performance of the debt. When one of the creditors has asked for the total performance, a different creditor can no longer go against the debtor because he's liberated as he already performed. The creditor who got it, is responsible for giving the corresponding part to the other creditors (article 1142 CC). When the solidarity is passive (several debtors), the creditor may sue any of the debtors or all of them simultaneously for the total performance (article 1144 CC). If one of the debtors performs the obligation, he extinguishes the debt, but the other debtors have to give him back their parts (“action for contribution”). The insolvency of one of the debtors affects the others who have to replace him making good the part if the insolvent in proportion to their single debts. PAYMENT Subjects of payment: Article 1156 CC: payment is the most common way to extinguish obligations. For the Civil Law, payment is the fulfillment of the duty of performance agreed by the parties; the correct and timely execution of the duty of performance which satisfies the creditor's interest. The main subjects of payment are the creditor (accipiens), that is the active part that claim for the obligation to be performed, and the debtor (solvens), that is the passive part that has to endure the claim for the performance. There can also be a third party. 1. Solvens: The solvens is the subject that makes the payment. Article 1257 CC says that it is for the debtor to pay, but the payment can also be made by the successors of the debtor, as they are also obliged to do so. It can also be made by a third party who assumed the obligation to secure payment if the debtor did not perform his obligation. Article 1161 CC provides that if the duty of the performance ¡is not interchangeable, the creditor shall only accept performance from the person who can properly perform. Any third part can make the payment unless the duty of performance is of a personal 5 nature. Article 1158 CC contemplates the possibility of payment by a third party. It provides that payment can be made by any person, whether it has interest or not in the performance of the obligation, and whether the debtor knows, approves it or ignores it. There are 3 scenarios: A. The payment is made by a third party in agreement with the debtor: The third party makes the payment, so he has the same credit the creditor had against the debtor. So the third party has a right to recover from the debtor what he paid for. The third party can choose between a relimbursement right and a right to subrogate in the position of the previous creditor. B. The payment is made by a third party against the will of the debtor: The third party who paid can only claim from the debtor the benefit he received from the payment. The third party has an action for enrichment, which might lead to the third party recovering a lower amount than in the case on subrogation. C. The payment is made by a third party without the debtor's knowledge: There's no express opposition of the debtor to the payment, so the third party who pays has an action for reimbursement. The third party does not have the possibility to subrogate in the rights of the prior creditor, he can not benefit from the accessory rights to the debt (article 1159 CC). 2. Accipiens: Accipiens is the subject that receives the payment. Article 1162 CC says that the payment has to be made to the creditor or his representative. As a general rule, the payment to a third party not involved in the obligation does not extinguish the obligation. Article 1164 CC foresees that a payment done in good faith to the person in possession of the credit releases the debtor. The person in possession of the credit is the one who “apparently” is the creditor. That means that if the debtor pays the person in possession of the credit he is liberated from the debt, although the creditor may not be the real one. If this happens, the creditor has the possibility to sue, for unjust enrichment, the apparent creditor who received the payment. 2. General principles: The payment needs to have some requirements: + Identity: The payment has to be the exact duty of performance agreed by the parties when the agreement was constituted. The creditor can not be forced to receive something different from the duty of performance agreed, not even if it's equal or greater value than the performance owed (article 1166 CC). Payment has to be made on the specie agreed. In the case if generic obligations, being the duty of performance the delivery of a thing pertaining to a kind, if the quality and circumstances of the thing have not been foreseen by the parties, the creditor can not ask for one of the higher quality within the king, neither can the debtor deliver one of the inferior quality (article 1167 CC). Integrity: The performance has to be completely fulfilled. According to article 1157 CC a debt shall not be considered to be paid until complete delivery of the thing due. Indivisibility: Unless otherwise stated in the contract, divided payment will not be accepted (article 1169 cc). Moment and place of payment: The moment of payment is the time from which performance can be requested. Payment has to be made on time. The moment of payment can be fixed on a particular date or when a certain event takes place. The obligations subject to term, shall only be enforceable when the date arrives. If the obligation does not fix a term for performance but from ¡ts nature and circumstances it can be inferred that there was an intention to grant a term to the debtor, the Courts shall fix the duration of the term. They shall also fix it when it has been left to the will of the debtor (article 1128 CC). Neither the creditor can ask for advanced payment, nor the debtor can oblige the creditor to accept payment in advance, unless such benefit has been granted to any of them. Usually the parties establish the place of payment upon constitution of the obligation. However, article 1500 CC establishes that in a contract of sale, lacking an express provision in the contract, payment shall be made at the place of delivery of the thing. Article 1171 CC provides that: 1) payments shall be made at the place designated in the obligation; 2) if the place of payment is not stated in the agreement and a specific thing is to be delivered, payment shall be made at the place where the thing was located when the obligation was constituted; 3) in the rest of the cases, the place of payment shall be the domicile of the debtor. This is a clear reflect of the favor debitoris. Special ways of performance: Imputation of payments: Article 1172 CC provides that when a debtor has different debts with the same creditor, the debtor, at the time of making a payment, has the possibility to decide which of the debts he wants to extinguish. Requirements: a. An only debtor who has several debts.