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28 Cards in this Set
- Front
- Back
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Obligations Defined
1 |
a legal relationship b/w 2+ parties that exists when (1) Obl’or owes a performance in favor of an Obl’ee & (2) the performance or duty is legally enforceable. Overriding duty of GF on all Obl’ee & Obl’or
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Obligee Abuse of Right
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doctrine preventing Obl’ee from exercising a right w/primary I of harming Obl’or
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Natural Obl
3 |
a legally implied moral, but not judicially enforceable, duty to render performance
• No Judicial Action for Obligee • Performance freely rendered in compliance w/a natural obl cannot be reclaimed • “freely rendered”→ w/o fraud/duress; still “freely rendered” even if obl’or didn’t know Rx had run • A new K made for the performance of a natural obl is onerous & enforceable • Promise must be express & show clear, distinct, & unequivocal recognition that new K is binding • Mere acknowledgment isn’t enough • &, if the natural obl is a prescribed debt, the new promise must be in writing • Examples of natural obl→ (1) prescribed debt (2) obl lacks capacity (3) debt discharged in bankruptcy |
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Real Obligation
4 |
ob incurred as a result of a real right (transferred to the person who acquires the thing)
➢ Heritable & Strictly Personal Obls→ obls are presumed to be heritable, but are strictly personal 4 (1) O’ee if performance is intended 4 his exclusive benefit & (2) O’or if perform requires his skill / for personal services. |
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Conditional Obls
5 |
→ occurrence depends on the happening of uncertain event (WHETHER, if certain - term)
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Suspensive Condition
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→ suspends enforceability unless & until the uncertain event occurs
• If purchaser who doesn’t make a GF effort to comply w/suspensive condition, it’s considered fulfilled • A condition that fails b/c of fault of a party who has an interest in its failure is considered fulfilled |
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Resolutory Condition
7 |
→ immediately enforceable, but comes to an end if the uncertain event occurs
• Credit sales include what’s in essence a resolutory condition that it’ll be nullified if price isn’t paid |
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Potestative Conditions
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→ condition whose fulfillment is w/in a party’s power
• A suspensive potestative - condition whose fulfillment depends on obl’or’s whim is null • “whim”→ depends entirely on obl’or’s unbridled discretion or arbitrariness ➢ A considered weighing of interests or exercise of reasonable discretion isn’t whim (it’s will) • Resolutory potestative - conditions are not null, but must be exercise in GF |
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Obls w/ A Term
9 |
– a period allowed for performance. If no term perfom due immediately (WHEN)
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Obls w/Multiple Persons - Several
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• Several Obl→ more than 1 obl’or promises separate performances. They’re considered together b/c made in one K, but treat each 1 separately
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Obls w/Multiple Persons - Joint
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• Joint Obls→ only 1 performance is owed, but no obl’or is bound for the whole & no obl’ee is entitled to receive the whole performance. If you determine an obl is joint, look to whether it’s divisible/indivisible to determine effects:
• Divisible→ object of performance is susceptible of division • Each obl’or only must perform his portion & each obl’ee may only receive his portion • Indivisible→ governed by the rules of solidarity |
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Obls w/Multiple Persons - Distinguishing b/w Several & Joint
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→ look to the object of the obl
• In several obls, the objects are different (separate performances), but in joint obls, there’s a single object (one performance). Whether sep/single performance(s) is owed is a matter of parties’ I |
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Obls w/Multiple Persons - Solidary Obls
13 |
→ each obl’or owes whole perform & / or each obl’ee is entitled to receive whole perform
• Effects: Sold for O’ees, the O’Or may extinguish by perf to any O’ee • Sold for O’ors, the O’ee may demand whoel perf from any O’or • Renunciation of Solidarity→ obl’ee may expressly renounce solidarity in favor of 1+ obl’or(s) • Renouncing means the obl’ee will look to an obl’or only for that obl’or’s share • Must be express, but need not be made in any solemn manner • The other obl’ors remain solidarily liable for the obl minus the renounced share • If other O’or goes insolvent – renounces O’or owes his portion of insolvent O’ors share |
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Remission of Debt
14 |
→ Obl’ee remits the debt in favor of 1+ solidary obl’or(s)
• Other obl’ors remain solidarily liable for the obl minus the remitted share • Remitted O’or is free even if other sold O’or goes insovlent • Solidary Obligor who pays has a contribution action against others for their virile share |
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Conjunctive & Alternative Obls
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• Conjunctive Obl→ obl’or must render multiple performances, & each one may be separately rendered
• Monthly Rent payments (Rx runs from each performance dates) • Alternative Obl→ obl’or is bound to render one of 2+ performances (“I will buy either the van/coupe”) • Obl’or may choose either unless the choice was granted to the obl’ee either expressly or impliedly • Obl’or isn’t allowed to render partial performance of both • If one choice becomes impossible or unlawful, the obl’or must do the one that remains • If both become impossible or unlawful w/o the obl’or’s fault, the obl is extinguished |
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Assumption
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→ transfers the duty to a new obl’or. May arise by:
• agreement b/w the obl’or & 3dP whereby 3dP agrees to assume the obl’or’s obl. • “I sell my house to Jill & she assumes the mortgage” • Obl’ee may enforce a/g 3dP ONLY if it was made in writing • But, even if not in writing, it’s enforceable b/w the obl’or & 3dP • agreement b/w obl’ee & a 3dP whereby 3dP agrees to assume an obl owed to obl’ee • This must be in writing to be enforceable & doesn’t affect a release of the original obl’or |
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Subrogation
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→ the substitution of one person to the rights of another.
2 Types→ conventional & legal • Conventional→ arises in 2 situations: • Agreement w/obl’ee→ Effective w/o the obl’or’s consent. Governed by rules for assignment of right • Agreement w/obl’or→ Effective w/o obl’ee’s consent. (In Writing & State purpose of loan = pay debt) |
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Legal Subrogation
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→ entitles new obl’ee to recover only to extent that he has performed. Takes place in 5 situations: (1) when 1 obl’ee pays another obl’ee w/superior rights (2) when a purchaser of prop uses the purchase $ to pay a C w/a real right to prop (3) when an obl’or who owes a debt w/others pays that debt & has recourse a/g those obl’ors b/c of payment, (4) Successor pays debt with own funds (5) by law
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Proof of Obls
19 |
→ some K must be in writing in which case is can’t be proved by testimony UNLESS the instrument has been destroyed/lost/stolen. (Electronic sigs satisfies the req)
• Authentic Act→ executed in front of a notary & 2 Ws & signed by parties, notary, & Ws. • Act Under Private Signature Duly Acknowledged→ originally executed w/o notary present, but a party thereafter acknowledges the signature b/4 ct or notary & 2 Ws. • Act Under Private Signature→ signed but not necessarily written by the parties. BUT, may be enforced a/g party who didn’t sign it if that party’s conduct demonstrates that he’s availed himself of the K. |
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Transfer of IMMs
20 |
→ must be in writing either by an authentic act or an act under private signature
• Exception→ oral transfer is valid if there’s been delivery & transferor recognizes the transfer under oath • However, to affect 3d parties, it must be recorded in parish where IMM is situated |
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Obligations that Must be in writing
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➢ The Following Must be in Writing (offer & acceptance) to be Effective→
(1) transfers of IMM, including creation of any real rights on IMMs, except a verbal K cancelling a written K to sell IMM prop (2) a mandate authorizing the transfer of IMM prop (3) a promise to pay a debt extinguished by Rx (4) a promise to pay the debt of a 3dP (5) compromise & (5) suretyship |
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Obl is Extinguished by 6 ways:
22 |
• Performance
• Impossibility of Performance • Novation • Remission of Debt • Compensation • Confusion |
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Obl is Extinguished by 6 ways: Performance
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• Performance→ extinguishes the obl (even if rendered by a 3dP, unless strictly personal)
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Obl is Extinguished by 6 ways: Impossibility of Performance
24 |
• Impossibility of Performance→ obl’or isn’t liable if failure to perform is caused by a fortuitous (not reasonably foreseeable at time K made) event that makes performance impossible.(Except if default b4)
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Obl is Extinguished by 6 ways: Novation
25 |
• Novation→ the extinguishment of an existing obl by the substitution of a new one
• Never presumed. Obl’ee’s I must be clear & unequivocal. Mere modification isn’t enough • Objective Novation→ substitution of new performance or new cause in place of the original one ➢ The obl’or remains the same, but a new obl is substituted for the original obl (Giv in payment) • Subjective Novation→ sub of a new o’or for the original o’or (org ob exting – dif than assump) • If novation is made by obl’ee & 1 solidary obl’or, other solidary obl’ors are released, unless consent to new obl |
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Obl is Extinguished by 6 ways: Remission of Debt
26 |
• Remission of Debt→ voluntary relinquishment by the obl’ee of her right to demand performance
• Acceptance is always presumed unless he rejects w/in a reasonable time, • Remit debt in favor of PO - sureties released • Remission is a grat K that does not req a writing, b/c the liberality is more indirect than in a donation |
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Obl is Extinguished by 6 ways: Compensation
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• Compensation→ method of extinguishing 2 obls simultaneously ( to the lesser amount)
• Occurs by operation of law if (1) 2 persons owe each other sums of $ or quantities of fungible things identical in kind & (2) these sums or quantities are liquidated & presently due • Special Rules for Multiple Parties. Compensation between: • Obl’ee & principal obl’or→ extinguishes surety’s obl • Obl’ee & surety→ doesn’t extinguish principal obl’or’s obl |
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Obl is Extinguished by 6 ways: Confusion
28 |
• Confusion→ if qualities of o’ee & o’or are united in the same person, obl is extinguished (not for surety)
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