What Are The Elements of Obligations?
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ScribdTranslationsWhat Are The Elements of Obligations?
Uploaded by
ScribdTranslationsWhat are the elements of
the obligations?
The obligation is an abstract legal bond by virtue of which one party,
referred to as the debtor, commits to executing a performance of content
patrimonial in favor of another, called creditor, being able to the latter
demand its compliance or, failing that, the corresponding compensation.
From this concept of obligation, several elements are deduced, which are
necessary to explain:
1. The subjects
Every obligation necessarily implies the existence of at least two.
subjects, a debtor and a creditor. The debtor is the passive party in the relationship
mandatory; the creditor is the active party. Thus, the debtor is the one who has to
fulfill by executing the object of the obligation, as long as the creditor is the one
has the right to demand compliance with that benefit.
When we find ourselves in an obligation with more than one
creditor and a debtor, of a creditor and more than one debtor, or of more than one
debtor and more than one creditor, we will be faced with the so-called
obligations with multiple subjects or obligations with plural subject.
These obligations with a plural subject are known by the name of
divisible, indivisible, joint and solidary.
2. The object
The object of the obligation is the performance and is defined as the activity
human that will have to be deployed by the debtor and that will consist of
in an effective giving, in an effective doing or in an effective not doing. All
obligation, then, has as its performance the giving, doing, or not doing something.
Having noticed that the exact name to refer to this topic is
obligation to provide, obligation to perform and
obligation not to act, in the course of our exam of
we will skip a step. In this way, in view of
that we are all aware of what we are dealing with, we
we will limit ourselves to referring to them as obligations to give, obligations to do and
obligations not to do.
3. The heritage content
Between the concept of must relationship from gender to species. The obligation is a
legal obligation, whose essential characteristic is precisely its content
heritage. This element that distinguishes obligation from duties
non-patrimonial legal obligations implies that their performance is
susceptible of increasing in value or, in other words, that can
assign a value to that benefit.
It is worth clarifying that in order to determine if the content element is present
patrimonial is not relevant if the parties agreed in the contract a
counterparty. The relevant thing is that we, you, or anyone,
I can mentally carry out an evaluative operation and that evaluation
the economy is accepted by society.
From this statement, we can infer that, in reality, the character
The patrimonial aspect of a benefit is ultimately defined by the notion
that it is managed from that benefit. Thus, although in principle everything is susceptible
When economically valued, there are certain "goods" that society, due to
the perception they have of them denies that patrimonial character.
4. The enforceability
This element implies that, in any obligation, the creditor can demand from
debtor the fulfillment of the obligation; and if the debtor fails to comply with the
obligation, you can demand judicial compliance. If this were not the case
possible, I could claim compensation for the damages and
suffered damages.
This feature of enforceability does not mean, however, that it always
obligations will be enforceable in kind. The limit imposed by the
The law of obligations is the use of violence against the person of
debtor. At the moment when it is necessary to use violence against the
The debtor's person will not allow the enforceable compliance of a
obligation. In these situations, however, the law offers other
alternatives, such as the possibility of claiming compensation for the
damages and losses suffered caused by the breach.
Having made this distinction, we must note that enforceability marks the
difference between the obligations that will be the subject of our work, which
they are also known in doctrine by the name of civil obligations (but,
in this work we will call them, simply and plainly, obligations); and the
natural obligations. This is because natural obligations are
those that have all the characteristics of a civil obligation, with the exception
of the feature of enforceability.
In national law, there are only two cases of obligations.
natural. The first of these is that of debts from non-prohibited gambling, but
also not expressly authorized by law. Whoever wins one of those games,
that are not regulated or supervised by the State, cannot enforce payment
in the courts of justice if the loser refuses to pay and invokes with
success is the natural character of the obligation. In lacking the feature of enforceability,
whoever wins in the game will depend on the goodwill of the loser, for not
will have legal means to rely on.
The second case is that of debts that are already barred. In subsection 1 of the article
Article 2001 of the Civil Code of 1984 (hereinafter, the Code) establishes the term
ten years to exercise the personal action, which is the action that has the
creditor to collect a debt from their debtor. The creditor, then,
You have ten years to file a lawsuit. If the creditor just decided to request
After ten years and one day, the debtor would have the right to
to oppose or deduce the exception of limitation. That exception does not question the
existence of the debt, but its enforceability.
In a prescribed obligation, all the elements of the obligation are present,
less one: its enforceability. Without that element, the creditor does not have
legal mechanisms to demand compliance; nonetheless, the payment
what the debtor would carry out would be valid and could not be qualified as a payment
unjust that grants the right to be restored.
