PAYMENT
is the provision of what is due (Article 1568), or the fulfillment of the obligation. It is the most usual of extinction of obligations. Pay not only gives a sum of money, but usually gives the proper thing, run the fact or fails because of the fact which had been forced to abstain.
Any payment is caused by an outstanding obligation, whether civil or natural.
Who can make payment . Article 1572. Not only the debtor, unless the obligation was incurred in consideration of the ability of the debtor.
a) the debtor can pay , under whose name we can include their agents or legal representatives, heirs and legatees.
b) can pay anyone interested in extinguish the obligation, as might occur with the fixative, the jointly and severally liable or third owner of the mortgaged property. In these the third is subrogated to the creditor's rights (articles 2370, 1522, 2429, 1610 No. 2 and 3).
c) may also pay a third stranger ,
With the consent of the debtor . In this case the payer has acted in exercise of a mandate to pay. The obligation to the creditor is extinguished but the third is subrogated to the rights of the creditor to whom paid (Article 1610 No. 5). The change in the ownership credit. But besides the third party has the right to bring actions under the contract of mandate (Article 2158). The third choice.
- Without knowledge of the debtor. The third is an unofficial agent. The obligation is also extinguished the creditor but the third must be repaid (although not subrogated, in this case, the rights of the creditor unless operating a subrogation) (Article 1573).
- against the debtor's will . This third "rebel" is not entitled to subrogation or reimbursement. Only if the conventionally subrogated creditor voluntarily cedes or action may take action against the debtor (Article 1574). Exception: Article 2291. On the apparent contradiction of these standards have been given several interpretations.
Some believe that Article 2291 applies where payment has been useful and 1574, when it has been. Others, that Article 1574 applies in cases of isolated and 2291 payments when the payment is part of a set of actions.
Others believe that the 1574 article there is no right to restitution of the amount paid and not 2291, although action in rem verso on what the payment was actually useful.
Conditions for the validity of the payment .
Article 1575. Bear in mind that payment is to provide what should and can therefore take place on the obligations of doing and not doing. Article 1575 applies only to obligations or even to all but only those that "property must be transferred."
a) He who pays must be owner of the thing right delivery or transfer. Some believe this is indicating that payment and is not the same tradition, for tradition made by people who do not own the thing or right is valid (although not its natural effect which is to transfer the right or thing), whereas in the case of payment would entail the nullity of payment. It seems to me that just here the code was wrong and spoke of nullity when the payment actually made by a non-owner is valid, just not the effect itself (extinguish the obligation), the legislature spoke of invalidity analogue ( as does the talk of mutual consent).
But the payment made by a non-owner is valid in certain circumstances. Of course, when checked with the consent of the owner (Article 1575 item 1), which can be pre or post. (Articles 672 and 1818). Or the person paying acquired after the domain (Article 682 clause 2) or when the thing paid is fungible and the recipient of a used in good faith (article 1575 paragraph 3 º).
As the payment made by a non-owner does not extinguish the obligation, the creditor may sue the debtor a new payment (refund before, obviously, what you received) and the debtor is entitled to recover what " paid "(actually just gave it.)
As the true owner of the thing, you can vindication that the "payment" it is unenforceable. This action will prescribe when the creditor acquiring the domain for acquisitive prescription (Article 2517), but the creditor may waive this requirement and demand provided the debtor has not prescribed as extinctive its action to demand payment.
b) He who pays must be able to dispose (article 1575 paragraph 2 º), as payment is tradition and tradition is done right and intention to transfer the domain. But the payment made by the person who is unable to dispose of is sometimes valid and effective. Of course, if deemed invalid, be validated by the passage of time (invalid absolute) or even the "ratification" of the parties (relative invalidity). Also, when the thing paid is fungible and the recipient have used it in good faith (Article 1575).
c) Payment must comply with the legal formalities (forms of tradition-Article 679 -).
Who should be paying
it is very important to determine if the debtor pays, who does not belong, as the creditor may take action against the debtor (subject that repeat it improperly paid). "THE EVIL THAT PAY PAY TWICE."
The 1576 article says who should be paying:
a) The creditor (including under this concept to the heirs, legatees and assigns). But the payment made to the creditor or such person is in some cases void (Article 1578).
b) Al dor representative of creditors, whether legal (Article 1579), conventional (deputation to receive payment, item 1580 - or-judicial abductions, administrators ,...-).
The Civil Code regulates the ways in which to award the mandate to receive the payment (item 1580) and what is involved in a general mandate (articles 2132 and 2133). also, the president's judicial powers (Article 1582 in relation to Article 7, subsection 2 of the Code of Civil Procedure) and the ability to be a deputy for the collection (Article 1581), which is the relative capacity (Article 2128). It also regulates the termination of the mandate to receive, which expires on the same grounds that any mandate: First, given that the mandate is a contract intuito personae (which makes the council is delegated (Article 1583), the deputation ends with the death of the President (Articles 1583/2163 No. 5). It also ends with the revocation of the council, as the term is essentially reversible, although it has some scope (Articles 1584 and 1585).
c) can also make payment to the credit holder . (Article 1576 paragraph 2 º). The payment made to any person other than those specified is ineffective, does not extinguish the obligation, but can be validated in some cases (Article 1577).
Where payment must be made?. First of all we must be at the will of the parties (Article 1587), and lack of convention must distinguish whether it is an obligation to species or genus (articles 1588 and 1589). The place of payment determines the jurisdiction of the courts (Article 135 and 138 of the Organic Code of Courts).
Must Do When do you pay?. Where the obligation has been eigible, ie immediately upon completion of contracted or the condition or come within suspension (Article 1826).
EXPENSES ARE PAID BY THE DEBTOR unless otherwise is stipulated (Article 1571).
How payment must be made? Articles 1590 and 1591. Must be total (item 1569), except in the optional obligations (Article 1505) or modal (Article 1093) and literal (Article 1591) unless otherwise Convention (Article 1591) or legal exceptions (Article 1592, 1625).
In kind obligations apply certain rules derived from the nature of the obligation (articles 1590, 1547, 1550, 1672, 1677) and as there are other rules for gender (Article 1509).
PAYMENT ALLOCATION .-
refers to the problem of determining which duty is charged or applying a particular payment as between the same creditor and debtor are several obligations or production requirement of interests, and obligations are of the same nature and the payment is sufficient to extinguish all or part of any of them is not yet able to extinguish them all.
The first option to decide the complaint lies with the debtor (Article 1596) with limitations: If the debt earns interest, you can not charge the debtor to pay the principal and then interest except by consent of the creditor (Article 1595), nor may payment attributable to debts not yet due preferring on overdue (unless consent of the creditor-Article 1596 -) and may not charge a
obligation is met in part rather than one that is completely extinguished (article 1591). If the debtor does not accuse, so does the creditor (Article 1596) and ultimately
caso la ley (articulo 1597).
PRUEBA
DE PAGO . Lo debe probar el
deudor. Como es un acto, le rige la limitación de los articulos 1708 y 1709.
Además, hay algunas normas especiales que contienen presunciones: articulos
1595 inciso 2º; 1570.
PAGO
POR CONSIGNACIÓN . Al deudor
le puede interesar pagar por varios motivos: evitar la resolución del contrato,
no seguir devengando intereses, evitar que se le aplique una multa, liberarse
de los riesgos de la cosa, recobrar una cosa dada en pledge, mortgage boost ... The refusal of the creditor can not be affected. Moreover, the refusal of the creditor to receive not excuse you from the obligation to pay. The delay of the creditor to fulfill his own obligation purge the delay of the debtor, but does not purge the mere fact that the creditor is in default to receive. As the debtor can make the payment, notwithstanding the refusal of the creditor (Article 1598), by the appropriation.
Payment for provision requires two operations: the supply and allocation. The offer is a unilateral act by which the debtor gives the creditor the opportunity to receive voluntary and demonstrates their resistance to receiving. Payment strictly speaking is done by the appropriation, which is the repository of the thing due, with legal formalities and in the hands of another, against the wishes of creditors r, made under the repugnance or default of the creditor to receive or by uncertainty about the person of the creditor (Article 1599).
The provision should therefore be preceded by the offer. Forms of supply are:
a) THIS IS THE CREDITOR. In this case you must meet certain substantive requirements (Rules 1600 No. 1, 1600 No. 2 on the 1578, 1600 and 1600 No. 3 No. 4) and form (articles 1600 N º 5, 6 and 7).
b) THE CREDITOR DOES NOT ADDRESS IN PLACE OR IS NOT BEEN OR IS UNCERTAINTY ABOUT THE PERSON CREDITOR. In which case you should meet the requirements of Article 1600 N º 1, 3, 4, 5 and 6 and the offer is made to the creditor or his legal representative (clause 2 Article 1600). The offer may also be omitted in some cases (articles 1600 and 1601 No. 7 item 5 º).
The creditor may not object (section 1601 subsection. 4 º). After the consignment must qualify the adequacy of payment (item 1603). If there is no pending lawsuit, as management is voluntary (Article 817 et seq of the Code of Civil Procedure).
expenditures are paid for appropriation by the creditor (Article 1604) and as a result and from the day of the provision will nullify the obligation (Article 1605).
The debtor may withdraw the appropriation until it has been accepted by the creditor or declared sufficient by the Court for final sentence (articles 1606 and 1607).
PAYMENT SUBROGATION. In doctrine, we speak of real subrogation (substituting one thing for another-articles 1727, 1672, 55 Code of Commerce or personal ,...-) (replacement of one person by another). When a third party is subrogated in place of the creditor as a result of the payment, subrogation payment speech. Subrogation is a personal, or replacement of one person by another that takes place legally. Payment by subrogation is the substitution of one person by another as a result of a payment (item 1608).
payment Sense of subrogation is to encourage payment. A third party who pays is entitled to recover the amount paid by the debtor, exercising personal actions of the agency's mandate or informally, as appropriate. But only to those shares, you risk having to pay the debtor's insolvency. Taking the place of the creditor, however, with collateral guaranteeing the creditor's claim, your safety is very different.
subrogation under the payment may be legal or conventional (Article 1609).
The list is not exhaustive, the article lists only 1610 major cases it alludes to occurs "especially benefit" of those states. Article 1610 No. 1: It is necessary that the third party is paying another creditor and the creditor to whom the payment has a greater right because credit that is privileged or mortgage. It may also happen that both are mortgage lenders but one is better right than the other. The usefulness of this figure is calm a creditor to make goods available in unsatisfactory conditions for other creditors. This is to satisfy a creditor "urged" and seek to calm the ideal opportunity for the debtor's assets.
Article 1610 No. 2: For this situation occurs it is necessary that the third party buyer is paying a mortgaged property and the payment is made to a mortgagee of the property. The aim is that the buyer pays the mortgage creditors are paid, once the property at the request of another creditor unpaid mortgage credit-in preference in relation to the mortgagee whose loan was outstanding.
Ramon $ 15 million buying a property with three mortgages, for $ 10 million in favor of Peter, for $ 5,000 .- for John and $ 5,000 .- for Diego. The 15 million price only met Peter and John. Diego then try and draw its foreclosure action to auction the property. The first product will be refunded for Ramon to the extent of what the property cost (using the preference of Peter and John) and only the remainder will have rights Diego. Thus, compared to the shot made at the request of the creditor Diego, Ramon will have lost the house but at least the price paid.
The utility is that the absence of this rule no one would buy a property when the price is insufficient to cover all mortgage holders (as at the behest of dissatisfied, lose their property).
Subrogation operates only in favor of "buyer." The acquisition of another title does not fall into this situation.
1610 Article 3: This subrogation benefits both sureties as the joint and several debtors. If there are several sureties, the obligation is divided between them equally (Article 2378). If several joint and several debtors, each co-debtor is subrogated to the creditor's action but only to you or share (Article 1522).
Item No. 4 1610: This is an heir who accepted a profit of inventory and pay with their own money (beyond what it received by succession), becoming a creditor of the estate. You might want to pay heir to prevent the property from the estate was auctioned in poor condition. If you manage to postpone the auction and prevent such conduct, it will benefit paid debts of the estate or testamentary, the balance belongs in proportion to their share of inheritance.
Article 1610 No. 5: There is a third party that is actually representative of the debtor, as the mandate must not be express. Enough with the tacit acquiescence of a person to manage their business on the other (Article 2123).
1610 Article 6: The case of legal subrogation has certain peculiar characteristics. Here should be recorded in deed that the money goes to pay the obligation and the deed of cancellation, payment is made with borrowed money. Writing can be the same.
Article 1611 .- To hold to the rules of the assignment of meaning that is made between surrogate and surrogate but delivery of title, and for the debtor and third parties is necessary to notice or acceptance by the debtor (Articles 1910 to 1904).
preferences are passed to the surrogate but those inherent in the credits, but not on the quality of the creditor. In the case where the mortgage is transferred, you must be registered (Article 686).
In the case of partial surrogacy, the credit will belong in part to the original creditor and in part to the subrogated to the extent of the amount paid. But the original creditor is entitled to be paid preferably subrogated to the creditor (Article 1612 paragraph 2 º). But this privilege to keep the balance takes precedence over the original creditor only. Where several surrogates, there is no preference between them. (Article 1613).
There is a basic difference between the payment with subrogation and the novation. In the novation by change of creditor, the obligation between the new creditor and the debtor is different than speaking from the original creditor and the debtor. Not so in the payment with subrogation, in which the obligation is the same.
There finally is a fundamental difference between the payment with subrogation and assignment of receivables. The transfer of credits is always a agreement between the assignor and assignee. The legal subrogation does not require the consent of the creditor. In addition, the transfer of credits is always solemn legal subrogation is consensual change (except in the case of Article 1610 No. 6).
is discussed the doctrine of the nature of the payment in kind. Some believe it is a novation by change of object. If so, it would mean that the loan would be extinguished and in case of eviction of the thing received, not revive the credit but would be only right to compensation. This theory is borne out by Article 2382. Others believe that the payment in kind is a simple method of payment, and therefore if eviction occurs, it means that the original credit would not become extinct.
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