6. Performance of Obligations Flashcards
What is payment?
The fulfilment of the duty of performance agreed by the parties. It can consist of a delivery of a sum of money, a thing or the performance of a service. Once done, the obligation is extinguished.
What are solvens?
The subject that makes the payment. Debtors.
What are accipiens?
The subject that receives the payment. Creditors.
The payment can also be made by…
- Someone empowered by the debtor.
- By the successors of the debtor.
- By a third party, whether or not they have interest in the performance or whether the debtor knows and approves or ignores it. However, it liberates the debtor but entails consequences between the debtor and the third party.
What happens if the payment made by a third party is made in agreement with the debtor?
Reimbursement + subrogate in the position of previous creditor (possibilities to benefit from the guarantees of the debt).
What happens if the payment made by a third party is against the will of the debtor?
Only can claim the benefit received from the payment. Shall NOT subrogate.
What happens if the payment made by a third party is made without the debtor’s knowledge?
Reimbursement + NOT subrogate.
Who else can receive the payment?
- His representative.
- Payment to a third party: if it is useful for the creditor. It does not extinguish the obligation, asa the creditor shall not see his interests satisfied.
- Apparent creditor: The payment made in good faith releases the debtor. The creditor is NOT able to go against him anymore (he could only sue for unjust enrichment of the apparent creditor).
What are the requirements regarding the object for a payment to extinguish an obligation?
Identity, Integrity & Indivisibility.
Can the creditor be forced to receive something different to the agreed?
No, no matter if it is something of the same value or more.
Explain identity:
The payment must be made the exact duty of the performance agreed. It has to be made in the space agreed.
Payments made with commercial paper shall not be effective until…
collected.
Explain the rule of the “medium quality”:
If the quality and circumstances have not been foreseen.
Creditor cannot ask for more and debtor cannot deliver less. (Debtor would mean to deliver on the medium).
Explain integrity:
Unless provided otherwise, to pay the payment, the performance has to be completely fulfilled.
However, the credit can accept a partial payment IF the performance is divisible and it satisfies his interests.
Explain indivisibility:
Partial performance is not permitted, but the creditor can accept it if it satisfies his interests.
The creditor can refuse incomplete payment.
When does delinquency start for the debtor?
From the moment when performance is asked by the creditor.
What is the essential term of performance?
When the obligation can only be performed in a particular moment, and from the moment the payment, the creditor can enforce the obligation asking for performance. E.g. Santa contracted for Christmas Eve.
What is the non essential term of performance?
The lack of performance can entail a mere delay or the definitive non-performance.
· Pure obligation: shall be enforceable from the present.
· Condition subsequent: shall be enforceable, without prejudice to the effects of termination thereof.
· Condition precedent: performance shall depend don the event constituting the condition.
· Subject to term: Obligation shall only be enforceable upon arrival of such day.
If uncertainty about whether the day shall arrive or not, the obligation is conditional, and shall be governed by the provisions of the preceding.
Anything paid in advance may not be recovered. If the person who paid, when he did so, was unaware of the existence of the forward term, he shall be entitled to claim from the creditor any interest or fruits which the latter has received from then subject.
Where shall payment happen if there is no place designated?
If there is a specific thing being delivered, payment shall be made at the place where the thing was located when the obligation was created.
Rest of cases: domicile of the debtor.
What are the special ways of performance of payment?
- Imputation of payments.
- Accord and satisfaction.
- Payment by assignment of property.
What is the imputation of payments?
When a debtor has different debts with the same creditor, he can decide which of them he wants to extinguish.
Requisites for imputation of payments to be possible:
- ONLY 1 debtor and 1 creditor.
- Debts of the same kind.
- Debts have to be due: the timing for the debtor to pay the debt has come, and if he does not pay: delinquency.
Who decides for imputation?
Generally, the debtor.
However, the can agree on it.
Creditor: if the gives the debtor a receipt that applies the payment made to one obligation in particular and the debtor accepts it, the payment shall be applied to such debt.
If a debt produces interests, can it be understood that payment is made on account of the principal if the interests have not been paid?
NO.
