OBLIGATIONS SUBJECT TO TYPE
The general rule is that obligations to produce their effects immediately below, without restrictions or limitations.
exception, the existence of these effects alters normal patterns.
modalities are clauses that are introduced into a legal act and thus affect the obligation that they generate from the point of view of his birth, termination or exercise.
modalities are usually exceptional and therefore not presumed, unless the condition subsequent cup (1489) and the existence of the trustee or his deputy at the time of restitution (738).
While the first case we are dealing with a condition that is part of nature, whereas in the second we are facing a condition of existence and thus essential and indispensable.
All modes support acts unless special rule, as with marriage, strictly lawful, adoption, or acceptance or repudiation of the assignments. (102, 1192, 9 º Act 7613, 1227). It is generally accepted procedures in the field of heritage.
conditional obligations: Title IV of Book IV and Title IV of Book III. The latter applies under section 1493.
Condition
Article 1473 . "The condition is an uncertain future event upon which the birth or termination of a right or obligation."
Requirements:
must be future (Article 1071). Conditional allocations in the legislature distinguishes situations in relation to a present or past fact. (Article 1072). must also be uncertain. And this is what distinguishes the term. conditions Classes:
a) express or tacit
b) Positive or negative (Article 1474)
c) Certain or indeterminate, as it is known when it will occur or not (if it occurs).
d) possible or impossible, physically and morally (Article 1475).
The positive condition precedent is flawed impossible (Article 1480).
If positive, and decisive; impossible, it is not written. (Article 1480 inciso.4 º).
The negative condition precedent of something physically impossible, making the obligation is pure and simple ( Article 1476). If it is morally impossible or conceived in terms unintelligible, it shall be missed (Article 1476 and Article 1480 paragraph 2 º).
The negative condition and decisive; impossible (physically or morally or unintelligible) we have not written, the obligation is considered pure and simple who has the thing should not return (Article 1480 para 4 º).
e) optional, or mixed causes. (Article 1477).
The facultative depend on a voluntary act of the debtor or creditor or the creditor's sole discretion. These last, the only power which depends on the sole discretion of the debtor are void (Article 1478).
f) Precedent or subsequent (Article 1479).
The condition is called as precedent if not met, suspending the acquisition of a right.
their enforcement for cases where a right is extinguished.
The condition precedent or subsequent, can be found:
- pending, fulfilled or failed (Article 1482).
If the condition is positive and has set a deadline, can be fulfilled if the event occurred within.
Failed If that period elapses without it happen, but if there is no fixed term, means accomplished at any time the check is made, provided that not exceeding ten years (using analogy Article 962).
If the condition is negative and stated term shall be deemed fulfilled if not made within the deadline and failed if it happens, but if there is no fixed term, it shall be fulfilled in any time to have the certainty that not occur
planned or made upon the expiration of a period of ten years without has been verified.
And failed at any time deemed that the failure occurs within the said ten years. But the condition must fail without fault of the debtor (Article 1481 paragraph 2 º).
How should the condition be met? According to the intention of the parties and in no way equivalent. (Articles 1483, 1484, 1485).
effect of the suspensive condition . While conditional pending the creditor only has a germ of law and therefore can not enforce the condition, and if you receive, you received may be repeated (Article 1485). Besides not being enforceable obligation, not at the counter (Article 2514).
But under the "germ of law" which is the creditor, and transmitted (article subsection 1492. 1 º), "can implore conservatory orders" (articles 1492, 1078, 761). Notably 1492 article incurs an inaccuracy it states that the conditional obligation is not transmitted in probate assignments, it is not effective.
As for the risks;
- if the loss is total and haphazard, the obligation is extinguished;
; - If it is partial and haphazard in the state must be found (Article 1486).
- If the loss is total and guilty is because the price and compensation;
- If partial and guilty, the creditor may request the remainder or to seek resolution and any compensation case (clause 2 articles 1486 and 1820).
Failed the condition precedent, the law did not exist and it is understood that ever existed, conservative measures are ineffective.
meeting the condition precedent, created and operates the right effect retroactive, and resulting from Article 77 and 2413 and is the reason for the transfer of rights and obligations conditional.
Exceptions to this retroactivity:
- the fruits are not returned (1488 items , 1090)
- disposals do not expire upon third parties of good faith (Articles 1490 and 1491).
Effect of conditions precedent .
Concept: ordinary conditions precedent is any uncertain future event "that does not consist in fulfilling contractual obligations" and which depend on the extinction of a right or obligation.
Opera full court and, if requested by any person the court simply stated that it operated. Anyone can allege and can not be ordered, unlike the condition subsequent compliance tacitly or damages.
Concept: The implied condition subsequent is an uncertain future event, upon which the termination of rights or obligations and is in breach of contractual conditions.
is tacit, ie, element of nature and not accidental, as is the ordinary (Article 1444). But it is not essential, may be waived, as it is heritage and looks at only the interests of resigning. May waive part or both.
is negative and simply optional. It is based on equity and likely will of the parties and according to article 1489 is involved in any bilateral contract. However, there is the partitions, or transactions, nor the successive agreements (completed but not resolved).
Some authors believe there may also be in unilateral contracts. Others believe that in only some contracts expressly contemplate unilateral as with the bailment (Article 2177), the pledge (Article 2396).
The implied condition subsequent is automatic, ie it is necessary that the diligent creditor demands the resolution (by exercising of the condition subsequent), together with which may also sue for damages.
But the diligent creditor can also do otherwise forced to demand compliance with compensation. To order the resolution is necessary for the implementation has not been accidental but has arrears guilty. That is a requirement for appropriate compensation for damages (Article 1557), which is confirmed by articles 1826, 1873 and 2101.
discuss whether any breach is sufficient to proceed to resolution. Some think so, because the 1489 article does not distinguish. Others believe that, based on Articles 1939, 1972, 1979, and 1852 subsection. 4 º. I think the resolution is in Article 1483.
Exercised the contract the condition subsequent is solved since the fault passes decisional authority of res judicata. That means that while that happens, the defendant can enforce the contract.
| ordinary condition subsequent | implied condition subsequent |
| 1 .- The ordinary is automatic. 2 .- The regular meeting can not be avoided | The tacit ruling. The tacit yes. |
| 3 .- The ordinary claims any interested | The tacit contracting can only rely on the diligent |
| 4 .- The ordinary does not entitle to compensation | The tacit if entitled to compensation |
| 5 .- In the ordinary can not be enforced because it operates the required resolution, and full | The tacit if it can be called forced compliance |
commissory THE COVENANT.
Concept: the conditions precedent stipulated tacit.
it is code regarding the sale and more precisely in relation to the buyer's obligation to pay the price, but you can apply these rules with general effect. Indeed, it is undisputed that can be agreed in any contract which would be discussed although the rules.
commissory Pact can be of two kinds:
commissory Covenant Simple This is the one that merely provides that the contract be resolved if the agreement is not fulfilled. For example, mutual non-timely payment of a fee, will be entitled to demand resolution of all the capital borrowed. In these cases the resolution does not operate its own right, but it is necessary to ask. So Article 1878 allows for the resolution or compliance. commissory The importance of the covenant is twofold. On the one hand, involves the exercise of action different from the time of enforcement actions issued by the implied condition subsequent. Also in bilateral contracts is an additional important reason, according to some, which is filling the legal requirement that the condition is expressed. (Articles 1491 and clause 680. 1 º).
qualified commissory pact: is one in which further provides that if not fulfilled the agreement in the agreed time will resolve the contract ipso facto. In that case the contractor can make ends meet paying meeting within twenty-four hours after judicial notice of claim (Article 1879). The deadline to invalidate the action is twenty-four hours (Article 48 item 1). We discuss later whether waivable or not. In any case, it is clear that also requires a judicial finding. Effects of condition subsequent .
Whether the condition is operated by action of law or precedent.
Pending status, the contract and the obligation to produce their normal effects as if it were pure and simple, just that there are uncertainties about the duration.
Failed, the contract and its effects are consolidated as if it were pure and simple and the condition is considered invalid.
Accomplished, extinguish the rights and obligations as if the contract had never produced its effect (retroactively). So the RESOLUTION is a mode of extinguishing obligations (Article 1597 No. 9).
In successive contracts such as leasing and contract work, the return of the parties to the previous state is impossible and so he applies a different institution is the ending. resolution between the parties include an obligation to return (Article 1487) since that is the thing does not own or have
no right to it.
But leaving and applying logical rules of equity, the legislator said that however, the fruits should not be unless there are contractual or statutory provision to the contrary (Article 1488), thus the principle of retroactivity experienced a notable exception.
The law provides that in certain cases notwithstanding, produced resolution the fruit must be returned (articles 1875 and 1090).
For others, ie, those who have the right thing or the thing, by the debtor, before the resolution had alienated or encumbered, the code gives the rule that resolution does not affect third parties in good faith, ie those who were not aware of the condition.
case of movable Article 1490 does not add anything special, just says they can not rebound from third parties in good faith, which "must be kept in mind, it is presumed. So to claim a third party is necessary proof of bad faith.
case of real estate the rule is the same, but it is not necessary to prove bad faith. This condition is presumed comprised the respective title, registered or granted by public deed (Article 1491).
is discussed is meant by the record. Some say it has tacit to the condition, but does not specify when the title is clear that pending the fulfillment of a contractual obligation and has not been set to the condition implied. The title "respective" is the original, the one that gave rise the conditional right. Needless to the legislature demanded that the title is "registered or granted by public deed, as if registered is because public deed has yet proven by deed, will need to register in order to surrender the right.
For donations inter vivos is a special rule in Article 1432.
Analysis article 1490. If the chattel to be a term or condition precedent or subsequent, the alienated, there is no right to claim against third possessors in good faith.
's not that they "must" (this only happens if the condition is fulfilled and since) but has or has conditionally. should not refer to that had one thing to run, as in this case is a lease, which can not claim the same thing, on which is just a mere fork. should not refer to conditions precedent or subsequent, as indeed it is a condition subsequent, what happens is that you have the thing is subject to conditions the condition precedent, which means that unless the condition is not. Why Article 1490 when he speaks of alienation? refers to the alienation in the strict sense, excluding charges. In effect, mortgage, census, and the room servitude applies only to real estate. For its part, the enjoyment and use relating to property, are extinguished by the resolution of the constitutional law (Articles 806 and 812). Analysis article 1491. If that condition is a property so disposed of, or gravel with a mortgage, or census servitude, you can not resolve the alienation or encumbrance, but when the condition reflected in the respective title, registered or granted by public deed.
should not say "must" but "have or possess." In any case, does not speak of time so the standard is more accurate than Article 1490. Just apply the mortgage, census or servitude? Yes, because it is exceptional, as is an exception to the retroactive effect of the resolution, must be interpreted strictly. When the article speaks of "can not resolve the alienation or encumbrance" means that there will be no action for restitution against the third. The language is inappropriate because it has the disadvantage of suggesting that enforcement actions could be directed against third parties which is absurd, it is personal. Articles 1490 and 1491 only apply, however the broad terms to:
- sales (articles 1873 and 1876)
- exchange (Article 1900)
- the repurchase agreement (Article 1882).
enforcement actions . Is born of the conditions precedent commissory tacit covenant to seek the termination of the contract for breach of obligations.
Its aim is to annihilate the contract to destroy consequentially the obligations arising therefrom.
resolutory action feature .
1 .- It is a personal action . Only directed against the defaulting contractor and diligently by the contractor (the one who turned on their part or is plain to comply). Birth of a personal right of the creditor is diligent. Once terminated the contract, the contractor care can also exercises the action for repossession of the thing whose domain is, by resolution, that has not evolved ever.
can also perform two actions jointly (Art. 18 Code of Civil Procedure) but of course that the success of the second result from the success of the first.
2 .- It is an action movable or immovable depending on the nature of the thing properly. And it is wealth and hence waivable, transferable, sublicensable, validity.
3 .- Regarding the requirement is to make a distinction . The enforcement actions issued by the enforcement actions implied is a personal action ordinary and therefore prescribes in five years (Article 2515 item 1) from which the obligation became enforceable (Article 2514 paragraph 2 º) and suspended in favor of the disabled (Article 2520).
If, however, comes from a pact commissory prescribes in four years or shorter period fixed by the parties (Article 1880), without suspending the deadline (Article 2524) and from the date of the contract ( Article 1880).
Accomplished resolutory action, increases and improvements are the creditor, but also loaded with damaged or decreases, precisely because of the retroactive effect of the condition. (Article 1486 paragraph 2 º).
If the loss is fortuitous, entirely suffers the creditor (Article 1550), under the principle that things perish for the owner, but if guilty, basically the debtor, to deliver a thing damaged , will be in breach of the obligations undertaken and therefore the creditor will have the option to request forced execution or resolution, and in both cases entitled to compensation (article 1486 paragraph 2 º), as in the case of Article 1590.
| | termination |
| generally allowed to retain the fruits (Article 1488, except 1875 and 1090) and only allows third-party claim and affect in bad faith (Article 1490 and 1491). | is a form of disability, namely the void, and therefore only authorized to retain the fruits received in good faith (article 1687 paragraph 2, paragraph 4 º and 907 º). And given action claiming against third parties in good or bad faith (Article 1689). |
WITHIN .
applies Title IV of Title IV of Book III (Articles 1498 and 1080).
article 1494 provides that the period is the time to be fixed for the fulfillment of an obligation.
But this concept refers rather to the standstill period.
In doctrine defines the term as a future event and some of which depend on the exercise of a right (or enforceability of an obligation) or extinction of a right (or obligation).
term peculiar thing is the future and certainty. The latter is what distinguishes it from the condition and determines that the contract term subject to rights immediately generated, and what is suspended while not meet the deadline is the exercise of that right.
The term may be uncertain and in this case is rather a condition. Article 1081 states that there may be four different types of response time precisely because of its certainty or uncertainty or indeterminacy and determination.
The certainty or uncertainty, is whether it is safe or not if the time will come. The specification refers to when, if reached, will meet the deadline. Article 1083 contemplates these ideas and provides summary allocations (or bonds) from one day are conditional, unless the day is certain and determined and that the allocations (or bonds) to a day are run unless the day is uncertain and indeterminate.
Assignments from the day (dies ad quo) true and certain: It's time. Section 1084 subsection 1. "The mapping from a certain day and certain given to the assignee, from the time of the testator's death, ownership of the thing assigned, and the right to transfer and transmit, but not the claim prior to the day."
assignments from the day true but unknown: 1085 item item 1 and 2. "The allocation from the date certain, but unspecified, is conditional and involves the assign condition to exist on that day."
If you know that the assignee must exist on that day, as when the assignment is in favor of a permanent establishment will be held as provided in subsection. Item 1. precedent ".
Assignments from a certain day but determined (eg reaching a certain age). This is conditional assignment (Article 1086).
Assignments from a certain day and indeterminate (eg receipt of attorney). Is conditional (articles 1083 and 1086).
Assignments to such day (dies ad quem) and determined way. Is a usufruct (Article 1087 item 1).
to day assignments and indeterminate way. There is also a usufruct (Article 1087 paragraph. 1 º).
Allocations to day uncertain but determined. It is also enjoyment, and no deadline. Why? Because the usufruct is extinguished not only within but also the death of the usufructuary. Then if it fails the term, being uncertain what will happen if the assignee dies, there will simply be a usufruct for life.
Assignments to date uncertain and indeterminate. Is provided (Article 1083).
Classification deadlines.
1 .- Express is the established formal and explicit terms. Tacitus, the necessary to fulfill the obligation (Article 1494). This relates to the notice of default (Article 1551 No. 2).
2 .- Fatal is one that is extinguished by the arrival of the term (Article 49), nonfatal , one who is allowed to meet performance while not rebellion declared by a court.
3 .- Determinate and indeterminate, true or uncertain. This has been seen. The certainty or uncertainty attends the security or insecurity of the period will come. Determination, knowledge of when it will occur within, regardless of whether the event comes or not.
4 .- Voluntary : the one established by the parties, as permitted by Article 1880 or 1866. Legal : the one prescribed by law, for example, shares or rights (articles 2200, 1885 ,...) Judicial : it is exceptionally The judge fixed, authorize the law (articles 378, 904, ..) or ex officio.
5 .- Suspensive : the one that postpones the exercise of the right or the enforceability of the obligation. Not affect the existence of rights, the right arises immediately concluded the contract (Article 1084), by which, pending the standstill period, which is paid is not subject to return, because although there was a slope term, the fact remains that the right existed and that is what justifies the term creditor is entitled to retain (Article 1495): Basically the debtor paid in advance waiver of the term. creditor Unlike parole, which has no right to retain,
as before the suspension is totally co ndición of law (article 1485 paragraph 2 º). Then, the fundamental purpose of the standstill period is not exercised the right or obligation required but missed the deadline (Article 1496). And while not required, can not be compensated (Article 1656 n º 3 º). In addition, pending the term does not run counter (Article 2514). But pending the time the creditor can require conservative measures, because although not specifically allowed by the code applies a fortiori that there is authorization for the creditor conditional. Slope within the law is passed, unless it is deadline day, as in this case is a usufruct and therefore not transferable.
Fulfilled the standstill period, however, the obligation becomes due and the due date that puts the debtor in arrears (Article 1551 No. 1 and 2). Spread the limitation and can operate for compensation.
extinguishment: the one that compliance is extinguished the rights and obligations (Article 1080). Yet discontinuance period, the act produces effects like pure and simple. Getting the right term expires without retroactive effect, the right was taken during that time (ie, the beneficial owner is not required to
return the fruits received).
The extinction of the term not only be checked by your maturity. Also for the withdrawal and revocation. Initially the deadline was set for the debtor and therefore usually can waive the deadline. But not always, they can also be of interest to the creditor, as in the tank (articles 2220, 2219, 1497, 2204, Article 10 of the Act 18,010). Nor can waive the time it was banned (Article 12).
Regarding Lapse , this is the occurrence of circumstances that make risky creditor to wait for the deadline (articles 1496 and 2427) but also in bankruptcy, insolvency and noticeable loss or diminution of the bonds, should be mentioned conventional expiration, or the "acceleration clause."
burden is imposed on who is granted a liberal, either donation or testamentary disposition.
is regulated with regard to the latter, but its rules also apply to the obligations between the living (Article 1493 applies the rules of Articles 1089 to 1096). According to Article 1089, the mode is not a condition precedent, and therefore, does not suspend the acquisition of the thing assigned. The code regulates how mode must be met (Article 1094).
Regarding unable to perform the way it regulates in Article 1093.
If the assignee or grantee does not meet the profile, it would imply the resolution, provided that the obligation or carry modal assignment termination clause (Article 1090). According to Article 1090, in modal assignments is called termination clause that imposes the obligation to return the thing and fruits, but is met modo.No means involving termination clause if the testator express. If it does not and how it is for the exclusive benefit of the assignee, no obligation.
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