By Welex, your litigation lawyer in Marbella
What is the fulfilment of the obligations? What is the payment or fulfilment of an obligation? What is the payment by compensation? Your English speaking litigation lawyer in Spain gives you the answers.
Litigation lawyer in Spain
Welex, your trial lawyer in Marbella!
What is the fulfilment of obligations? What is the payment or fulfilment of an obligation?
What is compensation payment? How can obligations be extinguished? These are four questions that we will address in this and future blogs from our Marbella law firm.
The civil law system in Spain gives rise to the obligations in Article 1088 by providing that
“Every obligation is to give, to do or not to do something”
And Article 1089 which states that
“Obligations arise from the law, from contracts and quasi-contracts, and from wrongful acts or omissions or any kind of fault or negligence”.
Common to all these obligations are the causes of extinction of the obligations in Article 1156 which, by listing numerus apertus, as they leave aside other causes such as prescription, address the following:
“Article 1156.
Obligations in Spain are extinguished:
By payment or compliance.
By the loss of the thing due.
By debt forgiveness.
By the confusion of creditor and debtor rights.
By compensation.
By novation.”
Thus we find the regulatory framework of this main cause of extinction of obligations in Spain, a natural way of complying with the consistent performance of the obligation, and framed in Section 1, Chapter IV, Title I, Book IV of the Civil Code, comprising 25 articles, including the allocation of payments, payment by assignment of property and the offer of payment and consignment, all of which, due to their relevance, will be dealt with in detail in other entries on this website.
The first question to be clarified is what is meant by payment or fulfilment of obligations. To this end, article 1157 of the code provides that
“A debt shall be deemed to have been paid only when the thing or performance constituting the obligation has been fully delivered.
Thus, the debt will only be deemed to have been paid when the service in which the obligation consisted has been performed. Thus, in affirmative covenants, it will consist of the delivery of the thing; in those of doing the action or work; and in restrictive covenants, abstention by the obligor will be sufficient.
In respect of the object of the performance, the code itself requires the obligor to deliver what has been agreed, without it being lawful to deliver anything else. This is set out in Article 1166, which provides that
“Article 1166.
The debtor of one thing cannot force the creditor to receive something else, even if it is of equal or greater value than that due.
Nor can one fact be substituted for another against the creditor’s will in the case of affirmative covenants”.
Therefore, the creditor cannot be obliged to receive a different performance from that agreed, except by way of private autonomy.
The Code also provides for the integrity of the payment of the benefit due by providing in its article 1169 that
“Article 1166.
The debtor of one thing cannot force the creditor to receive something else, even if it is of equal or greater value than that due.
Nor can one fact be substituted for another against the creditor’s will in the case of affirmative covenants”.
In the next part of this blog from our Marbella law firm we will address the determination of the persons entitled to make and receive payments for the benefit.
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