Details Category: Obligations and Contracts
1. If the debtor fails to comply with the obligation at the time it falls due, the creditor is merely entitled to move for the sale of thing pledged Show
2. The creditor cannot appropriate himself without foreclosure the thing pledged as pledge or under mortgage nor can he dispose of the same as owner
In cases where the obligor breached his/her obligation, s/he shall be liable for damages. [1] If the obligation to give a specific thing is breach by the debtor, the creditor may either compel the debtor to make delivery (specific performance)[2] or rescind. What is the remedy of the creditor in case one of the debtors does not comply with his undertaking in a joint indivisible obligation?A joint indivisible obligation gives rise to indemnity for damages from the time anyone of the debtors does not comply with his undertaking. What is the remedy available to the creditor when the debtor fails or refuses to perform his obligation to deliver a determinate thing? ARTICLE 1204. The creditor shall have a right to indemnity for damages when, through the fault of the debtor, all the things which are alternatively the object of the obligation have been lost, or the compliance of the obligation has become impossible. What are the remedies available to the creditor? Remedies available to Creditors- a brief explanation
What are the remedies of creditor in real obligation?The only remedy of the creditor is to have the obligation executed by another at the expense of the debtor or ask for damages. Moreover, the obligor cannot substitute others to perform his obligation to do without the consent of the obligee (creditor) because the obligation is personal in nature. What are the remedies available in case of breach of obligation?Remedies for the plaintiff The plaintiff can file a case and ask for damages for any harm or injury that they may have sustained as a consequence of the breach in the other party’s contractual obligations. What is alternative obligation? Alternative Obligation- is one where the debtor is alternatively bound by different prestations but the complete performance of one of them is sufficient to extinguish the obligation. The delivery of one is enough to extinguish the obligation. Creditor cannot be Compelled to Receive Parts of the Different Prestations. What are remedies at law? A remedy is a form of court enforcement of a legal right resulting from a successful civil lawsuit. Coercive remedies – requiring a party to do or omit doing a specific act through injunctive relief or a court order of specific performance (a court mandates that the party fulfill contractual obligations. What are the remedies of the obligee if the obligor fails to comply with his obligations under Article 1167?Article 1167. If a person obliged to do something fails to do it, the same shall be executed at his cost. Is the failure to perform an obligation on time which failure constitutes a breach of the obligation?Legal Delay or default or mora – is the failure to perform an obligation on time which failure, constitutes a breach of the obligation. What are the remedies of debtors? The only remedy of the creditor is to have the obligation executed by another at the expense of the debtor or ask for damages. Moreover, the obligor cannot substitute others to perform his obligation to do without the consent of the obligee (creditor) because the obligation is personal in nature. What happens if a creditor fails to comply with a debt? The obligation includes the delivery of all its accessions and accessories. If the debtor fails to comply, the creditor has the right to have the obligation performed by himself, or by another, (unless personal considerations are involved) at the debtor’s expense and to recover damages. Click to see full answer What are the obligations of a creditor?Explain them. The obligation includes the delivery of all its accessions and accessories. If the debtor fails to comply, the creditor has the right to have the obligation performed by himself, or by another, (unless personal considerations are involved) at the debtor’s expense and to recover damages. How does a creditor enforce a judgment?Once a judgment is obtained, the creditor can enforce the judgment by claiming enough of the debtor’s property to cover the debt, usually with the assistance of the local sheriff. The sheriff may actually take the property, or will record the creditor’s lien against the property, such as when real estate is involved. The Latin aphorism "pacta sunt servanda" (what is agreed obliges) is a key principle of the Spanish Civil Code, which establishes specifically that "the obligations arising from contracts have the force of law between the contracting parties, and must be complied with in accordance with their own terms" (article 1091 of the Civil Code). Contracts are valid and by mere consent, and from then on they oblige not only to what has been expressly set out, but also to the consequences which, according to their nature, can be expected in accordance with good faith, common usage and the law. (article. 1.258 CCiv) 2. DESPITE BEING BINDING CONTRACTS ARE BREACHED: WHAT IS THERE TO DO THEN?Even though they are binding from the moment they are entered into, contracts are breached, as everyone knows. 2.1 So what can one do when the agreement you have entered into is breached by the other party?
Other articles of the Code also authorize to request the fulfilment of an obligation assumed contractually. Thus, when the obligation is the delivery of a certain thing, Art. 1096 entitles the creditor to compel the debtor to make delivery or, if the thing is indeterminate or generic, to demand specific performance at the debtor's expense. Art. 1098 provides that if the obligor does not do something that is was obliged to do then, it shall be enforced at its own expense. The law also allows for the undoing something which should not have been done (art. 1099) also at the debtor's expense. Certain specific types of agreements such as sale and purchase agreements, assignments of rights, etc. have specific rules and remedies set out in the Civil and Commercial Codes for cases of non-compliance. Be sure to check with a lawyer to verify if your specific agreement has also specific remedies in addition to the above. 2.2 What if a party to an agreement demands payment from me even if they have not fulfilled their obligation, or have only partly done so? In case of reciprocal obligations, if a party is asked to comply with its obligations when the other party has not done so, there are two main defences:
As a rule, in all reciprocal obligations "no one can demand fulfilment of an obligation without having done so itself". This is expressly set out in Supreme Court ruling of 27 December 1990. This means that if one party fails to perform its obligations, the other party may refuse to perform. This is the basis of the exceptio non adimpleti contractus - exception of unperformed contract - and its lesser sibling the exceptio non rite adimpleti contractus - exception of contract not accurately and completely performed. These exceptions are not expressly envisaged by the Civil Code, but are widely recognised case-law creations which are inferred from the collective interpretation of a number of articles (such as art. 1100, 1124, 1466 and 1467 of the Civil Code) So, how can they be used when you are being asked to perform by a non performing party? There a certain requirements to take into account:
2.3 Will the exceptions free me from an obligation? Please check with your lawyer to see if the exceptions are an appropriate defence for you and whether they are likely to succeed and/or provide the relief you need in your specific case. 3. WHAT ABOUT FORCE MAJEURE? DOES IT CHANGE ANYTHING?Yes it does. Force majeure is an impediment to performance which may lead to the extinction of an obligation, the suspension thereof or simply exonerate the debtor from liability for damages. (a) In unilateral obligations
(b) In the case of bilateral or reciprocal obligations the debtor who is affected by force majeure is exempt from liability for failure to perform but the other party may terminate the agreement. As an exception, in the case of generic obligations, the maximum "genus numquam perit" applies, according to which it is understood that the thing does not perish and, therefore, there is no impossibility of performance due to the loss of the things the debtor had counted on for performance. This applies for example to monetary obligations which case law usually determines cannot be affected by force majeure. The maxim "genus nunquam perit" does not apply where parties have specified certain conditions in generic goods. If it is not just wine, but an specific bottle of wine from a certain vintage and winery, then force majeure, which prevents the debtor from obtaining such specific defined type of a genus also has the effect of freeing the debtor: it is not liable for failure to perform but the other party may terminate the agreement. So, generically, if due to an event of force majeure, the debtor is unable to perform, it will not have any liability for non-performance: the obligation would not be performed, but the debtor is not liable for it. This "non-performance" allows the other party to free itself from its obligations under the agreement by exercising the power of termination (Art. 1124 of Civil Code mentioned above), but without the right to claim damages. Note in any case that the agreement is not extinguished ipso facto; it requires express termination by the creditor. If the impossibility to perform is neither total nor definitive, then naturally the right to claim performance is not extinguished completely. Whether your agreement is affected or not by force majeure is a matter of fact which needs to be ascertained on a case by case basis. For force majeure to be accepted by the courts certain specific requirements must be met. In cases where performance is not impossible but has become exorbitantly onerous the "rebus sic stantibus" doctrine may apply. Please do consult your lawyer. |