Provisions of commitment
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| Provisions of commitment |
I tried to make the required english text as much as I can simple and easy ... I am going to provide you three main texts and this is considered as a first main text. we will discuss this text in our lectures this week ... so please try to print it (PS: don't worry we will work together to achieve the objective)
An agreement between private parties creating mutual obligations enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality.
*subject of obligation in a one of the following forms:
*Dare: to give something to someone
*Facere: to provide someone with services
*praestare: to restrain ourselves from doing something or a guarantee obligation
civil obligation
-they could be a subject of civil litigation
-they were legal foundation of executing one's right
Natural obligation
Contrary to civil obligation they weren't enforceable by law, which means they weren't protected by suit for execution.
subject of obligation:
-possible to implement
-in accordance with the law
-in accordance with the morality
-sufficiently precise
-economically valuable
kinds of obligation
*As a sanction
-civil or perfect obligation: it is an obligation whose sanction is law.
-natural obligation: is one enforceable by law but nevertheless binding on the obligor by dictate of his conscience and the basic postulates of natural law , justice and equity.
-moral obligation; is a duty imposed by ethical or religious.
*As a subject matter
-real obligation: the obligation to give.
Personal obligation: the obligation to do or not to do.
*As a number of persons obliged
-unilateral obligation: is one where only one party is bound, only one party undertakes a performance.
- Bilateral obligation: is one where both parties are bound, as in the contract of sale.
*As to mode of performance
-positive obligation: is an obligation to give and to do, the essence is affirmative action.
-negative obligation: is an obligation not to give and to do, the essence is inaction or non-action.
*As to sequence of performance
-primary obligation: the principal object of the contract.
-secondary obligation: one which is contracted and is to be performed in case the primary obligation cannot be performed.
*As to object
-principal obligation: one which is arises from the principal object of the engagement of the contracting parties.
-accessory obligation: one which depends upon peripheral or collateral to the principal.
*Kinds of Obligations under the Civil Code
-Pure and Conditional Obligation
-Obligation with a Period
- Alternative Obligation
-Joint and Solidary Obligation
-Divisible and Indivisible Obligation
-Obligation with a Penal Clause
*pure obligation
-Every obligation whose performance does not depend upon a future or uncertain event, or a past event unknown to the parties, is demandable at once and is called a pure obligation.
*conditional obligation
-Conditional obligation is one the fulfillment of which is dependent upon the happening of an event
THE CONDITION MAY BE:
-Suspensive or Condition Precedent: where in the happening of the condition gives rise to the obligation. The obligation is not to take effect until the event happens, it is a suspensive condition
-Resolutory Condition or Condition Subsequent: where in the happening of the condition extinguishes the obligation, obligation with resolutory condition take effect at once, but terminate upon the happening of the event.
- Potestative: where in the condition depends upon the will of the debtor.
- Casual: where in the condition depends upon chance, or on the will of the third person.
-Impossible Conditions: those contrary to good customs or public policy and those prohibited by law, shall annul the obligation which depends upon them.
obligation with a period or term
- Obligations for whose fulfillment a day certain has been fixed is called an obligation with a period or term and is demandable only when that day comes.
- In obligation with a period, the general rule is that it is presumed that the period has been established for the benefit of both creditor and debtor.
*In the following instances, the court may fix the period:
-If the obligation does not fix a period but from its nature and circumstances it can be inferred that a period was intended.
- When it depends on the will of the debtor.
-When the debtor binds himself to pay when his means will permit him to do so.
*Alternative obligation
-An alternative obligation is one where out of two or more prestations which may be given or performed; only one is due and the complete performance of one of them extinguishes the obligation.
-The Obligee or creditor cannot be compelled to receive part of one and part of the other undertaking or prestation.
*As a general rule, the right to choose the alternative belongs to the debtor. However, there are four limitations to this right of choice of alternative by the debtor.
- When the right of choice of the alternative is expressly granted to the creditor by mutual agreement of the parties.
-The debtor has no right to choose those prestations which are impossible, unlawful or which could not have been the object of the obligation.
-The choice cannot produce any legal effect until it has been communicated to the other party.
-The debtor loses the right of choice among the prestations whereby he is alternatively bound when only one alternative is left that is practicable of performance.
Facultative Obligation
-When only one prestation has been has been agreed upon, but the obligor may render another in substitution, the obligation is facultative.
Joint and Solidary Obligation
-A joint obligation may be defined as an obligation where there is a concurrence of several creditors or several debtors, by virtue which each of the creditors has a right to demand, while each of the debtors is bound to render the compliance with his proportionate part of the prestation which constitute the object of obligation.
The Right of the Creditors in Solidary Obligation
-The right to demand entire payment of the debt or the entire compliance with the prestation from any one of the debtors.
-If the debt has not been fully collected from one debtor, the creditor has the right to demand payment from the remaining debtors.
- The right to file an action for compliance with the obligation against one , some all of the debtors simultaneously.
-The right to receive payment or compliance with the entire prestation, from one, some or all of the debtors.
-The right to do whatever may be useful to the other creditors.
-The right to assign his rights with the consent of the other creditors.
- The right to make a novation, compensation, confusion or remission of the debt.
Obligations of a Solidary Debtor
-To pay the entire debt or fulfill the entire prestation when so demanded by creditors. Payment made by one of the solidary debtors extinguishes the obligation. If two or more solidary debtors offer to pay, the creditor may choose which offer to accept.
-To pay his corresponding share in the debt in case one of the solidary debtors made full payment of the obligation, with the interest for the payment already made. If payment is made before the debt is due, no interest for the intervening period may be demanded.
-To pay for the share of the insolvent co-debtor in proportion to the debt of each when one of the solidary debtors cannot, because of his insolvency, reimburse his share to the debtor paying the obligation.
- If the solidary debtor makes payment after the obligation has prescribed or become illegal, he losses the right to reimbursement from his co debtors.
Divisible and Indivisible Obligation
-An obligation to give definite things and those which are not susceptible of partial performance is deemed an indivisible obligation.
-When the obligation gives rise for its object the execution of certain number of days work, the accomplishment of work by metrical units, or analogous things which by their nature are susceptible of partial performance, such obligation is called divisible obligation.
Obligation with a Penal Clause
-An obligation with a penalty is one where if the obligation is not complied with, the penalty imposed shall substitute for damages and the payment of interests, unless otherwise stipulated.
-A penalty imposed for the breach of contract shall be enforced if the agreement is violated, whatever the obligee has suffered from damages or not, inasmuch as one of the primary purposes in fixing a penalty is to avoid damage.
-Proof of actual damages suffered by the creditor is not necessary in order to demand penalty.
*As a general rule is that the penalty takes place of indemnity for damages and for the payment of interest, except:
-when there is express agreement to the effect that damages or interest may still be recovered, despite the presence of the penalty clause.
-When the debtor refuses to pay the penalty imposed in the obligation.
