OBLIGATIONS.

Definition:
The obligation is the legal bond between specific subjects in general.1, by which a
the part called 'debtor' is in the need to give, do, or not do something in favor of the other,
creditor call.
The obligation is the counterpart of the credit.

Elements of the obligation:

The Legal Link
The parts (subjective element)
●The benefit U OBJECT (Target element)

Why objective and subjective element?

We saw, when studying capacity, that the legal subject (or entity with capacity for enjoyment) can
to have or not have "capacity to act" but this is not conceived without the capacity to enjoy.2. For
The above, in modern law, this distinction is born that studies on one hand the being
subjected to the law (objective) and that subject who is obligated to comply with it (subjective)

Legal bond:
Definition:
It is the relationship recognized and regulated by law, which links the subjects of the obligation.
which finds its sources in the sources of obligations in article 1437 of the Civil Code.
Characteristics of the VJ:
a. It arises from the sources of obligations (article 1437).
b. It is a time-bound link. Once the obligation is fulfilled, the link is dissolved.
c. It is an exceptional bond: Normal is not being obligated.
d. There can be an obligation with several links. E.g. Simply joint obligations. If
Pedro, Juan, and Diego are asking me for money... And only Juan pays his part, but Pedro and Diego still owe.
They owe me. The links persist regarding them.

The parts
They are the subjects of the legal relationship: creditor and debtor respectively.
Characteristics.
A. Each party can be one or several people3Acting personally or represented.
B. The Subjects can be natural or legal persons (as a general rule).
C. The capacity will be determined according to its source: The capacity in crimes is not the same as
in the contracts.

1Note that we also have the obligations of an indeterminate subject, which are the obligations propter rem.
or outpatient subject.
2In Rome, slaves had the capacity to act, without having the capacity to enjoy.
3For example, we have joint obligations, which are obligations where there must be a
plurality of subjects
Several debtors (passive plurality)
Several creditors (active plurality).
Several of some and several of others (mixed plurality).
But there must be a plurality of subjects for solidarity to exist.

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 The Provision or OBJECT of the obligations:

Every obligation must have an object, which we also know as performance.

There are obligations where the object is unique, and there are obligations with multiple objects, such as in the
alternative obligations.

REQUIREMENTS OF THE OBJECT. 1461

It must meet the common requirements for all legal acts.
There must be or be expected to exist4
2. It must be marketable
3. Determined or determinable
It must be lawful.

CLASSIFICATION OF OBLIGATIONS:

1. CLASSIFICATION ACCORDING TO ITS OBJECT.

a. Attending to the Nature of the object:
Obligations to Give, Do and Not Do

b. Attending to the determination of the object.

Obligations of gender and of species or certain body.

c. Attending to the purpose of the object.

Obligations of means and results.

d. Taking into account the number of objects of the obligation

Single Object
Obligations with plurality of objects5.
- Cumulative Obligations6I owe you this and that
- Alternative or disjunctive obligations71499 to 1504 'I owe you this.'

4
If the thing existed but perished before the birth of the obligation, the obligation is null and void.
absolute, due to lack of object, and for this reason Article 1.814 in the sale states: "The sale of a thing that to
the time to perfect the contract that is supposed to exist and does not exist produces no effect at all. For it is lacking
a requirement for the existence of the act.
5There are 3 categories of obligations with plurality of objects: Cumulative, alternative, and
optional.
6When several objects are owed, the obligation can be satisfied in 2 ways.

a) Distinct objects are owed, without any relation between them. For example, I sell you an industrial mixer and a
oven. They are different obligations and are enforceable separately, regardless of whether the sale that took place
agreed between the same parties was done in the same contract or in 2 different ones.
b) The obligation is one. But it will only be understood as fulfilled if all the prestations to which
the debtor was compelled e.g., one-way plane ticket, hotel stay, city tour, and plane ticket
back.
7 They are those obligations for which several things are owed, in such a way that the execution of one of them ...
they, exonerate the execution of the others

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 - Optional Obligations8art 1505 - 1507.

Abeliuk tells us9That there is a certain vagueness in the designation of obligations

accumulative, and they are also called: 'of simple multiple object', 'joint or conjunctive', but
they are the same.

2. CLASSIFICATION ACCORDING TO THEIR EFFECTS.

a. Depending on whether they provide action to enforce compliance or not

Civil Obligations
Natural Obligations.

b. Attending to the origin of its source

Contractual
Extracontractual.

c. Whether they persist by themselves or not.

Main
Accessories

d. Taking into account the moment and manner (how) in which they produce their effects.
Pure and simple obligations
Subject to modality
➢ Subject to deadline
➢ Under condition
➢ In a way.

3. CLASSIFICATION ACCORDING TO THE SUBJECTS.

Attending to the number of subjects

A. Obligations with individual subject
B. With plurality of subjects
Simply Joint101.511 and 1.526 inc1°
● 11They wonder (solidarity).
Indivisibles.

8
It is the one that aims at a specific object, but granting the debtor the option to pay with
this one or another that is designated. For example, the heir is obligated to pay Mr. Juan "the motorcycle" or 3
millions of pesos if you prefer. It is distinguished from cumulative and alternative obligations because here there is
a single object is due. And it is satisfied by paying this, or that, and the creditor is obliged to receive something else, different.
of the due.
9R.I.P.
10They are also called 'conjunctive' or 'joint'.
11Itis one that has a divisible object and a plurality of subjects. Each debtor is obligated to pay their share.
share in the debt and each creditor can only demand their portion of it. E.g. I lent 30,000 to A, B, and C.
If solidarity is not agreed upon, each of them is obligated to pay 10,000.

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Development...

Considering the nature of the object12.

OBLIGATION TO GIVE. 1548:

Definition: Its purpose is to transfer the ownership of a thing, or to establish some other right over it.
real right. Whatever the real right may be.

For example: The obligation that the seller has to deliver the sold item, the buyer to
pay the price, the tenant to pay the rent... Any obligation to give is tied to the
tradition.

Article 1548 states: 'The obligation to give includes the obligation to deliver the thing...'
In this regard, we find two doctrinal discussions.
1. Rejected thesis: That is no longer followed by anyone: That said that every obligation in which there is
delivery is the obligation to give. With that logic, even in titles of mere possession, there was
obligation to give. Thesis discarded.
2. Thesis mostly accepted: Every obligation to give contains tradition. Every
tradition implies a commitment as a constitutive element. For the Romans when they
it performed the tradition, there was also an obligation to do so. Which was to carry out the
tradition. Andrés Bello says that this delivery is not a separate obligation, but rather that the
The obligation to give includes the obligation to deliver; it is an integral part of the obligation to give.

How to distinguish whether a delivery involves an obligation to give or an obligation to do?

It all revolves around the title that precedes it, if it is a translativity title, there is a delivery that is part of
Tradition, if it is merely a title of possession, that delivery is not tradition, it is an obligation to act.

OBLIGATION TO DO. 1553.

Definition: It consists of the execution of any act that is not the transfer of ownership or
to constitute real rights over a thing.

Examples of obligations to do:

Those contracted by the parties in the promise agreement.
2. The one contracted by the landlord in the service lease,
3. The construction of physical work,
4. The one of the worker in the employment contract,
5. The seller's responsibility regarding eviction,
6. The obligation that the agent has in the mandate.

OBLIGATION NOT TO DO. 1555.:

Definition: It is one in which the debtor must refrain from executing an act. That if there is no intervening
the obligation would be lawful for him to perform.

12
1. Obligations to give, do or not do: The code does not address them systematically, but there are articles
of those that can be taken. For example. The obligation of not doing in article 1,555. Which rather explains
What can the creditor do in case of non-compliance (they can ask it like this).

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 Examples of obligations of NOT doing:
The worker is imposed the obligation not to receive letters from the Service of
Internal Revenue.
The lawyer who is a public official and who cannot carry private cases.
3. The conventional clauses of non-alienation.

IMPORTANCE OF THE DISTINCTION BETWEEN THESE TYPES OF OBLIGATIONS:

1. To determine the requirements that the object must meet:
If the obligation is to give:
a. The object must be tradable
b. It must be determined or determinable, and;
c. It must exist or be expected to exist.
If the obligation is to do:
a. The object must be determined,
b. It must be physically and morally possible.

2. To determine the nature of the action (if the action will be movable or immovable)
In the obligation to Give: The nature of the action will be movable or immovable depending on the
object on which the obligation rests.
In the work of doing or not doing: The nature of the obligation is movable, because the obligation
to do, or not to do refers to facts that must be regarded as movable (art
581).

3. To determine how the creditor demands compliance with the obligation. Or what is the
Same... How do we determine in what way the creditor demands compliance with the obligation?
It is necessary to distinguish whether it is an obligation to do or not to do.
Regarding the obligation to DO, this response is provided in article 1553.
If the obligation is to do and the debtor is in default, the creditor can request together
with the moratorium compensation, any of these three things, at your choice:
a. That the debtor be urged to execute the agreed act;
b. That he be authorized to have it executed by a third party at the debtor's expense;
c. That the debtor compensates for the damages resulting from the breach of the contract.

If the obligation is NOT TO DO, the answer is given in article 1555 and is stated in 3.
different assumptions:
1. If the debtor contravenes and cannot undo what has been done. 'the obligation not to do something is'
solve in compensating for the damages.13
2. If what has been done can be destroyed and its destruction is necessary for the object that was aimed at
time to celebrate the contract, TWO THINGS CAN HAPPEN:
a. That the debtor be obliged to destroy it, or;
b. That the creditor is authorized by the Judge to destroy (undo) what was done at the expense of
debtor.
3. If the object of the obligation can be fulfilled by other means, different from the destruction of what has been done,
In this case, the debtor who agrees to provide it will be heard.

13It is said that the obligation varies in object.

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 The creditor will remain14in any case unscathed15.

In executive proceedings, there are different procedures.

There is an executive judgment for obligation to give, do, and not do.16.

5. For the purposes of constituting a default.

- In the obligations to give and do: delay is a requirement for it to proceed.
compensation for damages
- In cases of non-performance, no delay is required: it is enough with the contravention (article 1557)

6. In the case of fortuitous event or force majeure:

It is necessary to distinguish between the obligation to give, to do, or not to do.
In the obligation to deliver: As long as the obligation is of 'specific species or certain body' it operates
the way to extinguish the obligation "loss of the thing that is due"17the
genre does not perish
Article 1.510.
If the obligation is to do or not to do: How they are related to facts, the thing.
changes, the way of extinguishing is different, a singer who due to an accident cannot
to sing. The way to extinguish changes "The impossibility in execution" (that way of
to extinguish is not in the civil code but is in article 534 of the CPC18.

Attending to the determination of the object.

GENDER OBLIGATIONS

Definition: 1508. It is one in which an individual of a class is indefinitely owed.

determined gender
Gender obligations are addressed by the code in a systematized manner. Art 1508-1510.

How it is fulfilled: By delivering any individual of the gender of at least medium quality.
(article 1509).

Loss of the thing: Understanding that the genre does not perish, the loss of the thing does not extinguish the
obligation, and it is borne by the debtor.
Powers of the creditor: The creditor cannot demand a specific individual.
he cannot oppose the debtor destroying or alienating the thing.

OBLIGATION OF A SPECIFIC THING OR CERTAIN BODY

Definition: It is one in which a specific individual of a class or genre must be determined.

determined.

14Imperative.
15The word indemne implies 'free from harm' so if there are any, they should be repaired.
16In the obligation to give and do, default is a requirement. In obligations not to do, it is enough with the
contravention.
171567 No. 7
18Be careful because from here they can easily take you to the CPC, or have it on hold for when entering the stage of

procedural

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How it is fulfilled: By delivering the specific individual.
What happens with the loss of the thing: We must distinguish how the loss occurred.
a. The loss was fortuitous: The obligation is extinguished; no one is obligated to do the impossible.19.
b. If the loss has been due to the fault or negligence of the debtor, the obligation remains but
change the object, it must now be the value of the thing.
Therefore, we cannot say that in the obligation of a specific species or certain body, the loss
the thing extinguishes the obligation, now the compensatory indemnity is owed.

Powers of the creditor: The creditor can require a specific individual and can oppose.20
that the debtor destroys or alienates the thing
The obligation of a specific item or certain body arises when it concerns the loss of the thing that is owed.

This classification is partially in the code titled 'of the obligations of

"genre" (part in 1508-1.510). The obligations of a specific thing or certain body are not systematized,
but there are 2 subjects from which one can elaborate, the theory of species obligations or
certain body.

One of those subjects is the same gender obligations. What the code says in the
gender obligations can be reversed and applied to species obligations or
true body.
2. The other subject is the loss of the thing that is owed, which only operates when the obligation
it is of a certain species or body. And it is in that matter, where the code offers, some of the
characteristics that these obligations have.

PARALLEL BETWEEN BOTH

Gender Species or certain body

Concept It has a legal concept: art 1508 It does not have a legal concept but to
from 1508 it is possible
They are those in which one must
elaborate a concept: They are
indefinitely a
those in which a
individual of a class or
determined individual of a
determined gender.
class or gender too
determined.
According to how they are fulfilled They are fulfilled by delivering Delivering the individual
any individual within the specific that it should be.
genre but of a quality to
at least median.

How the creditor demands The creditor cannot demand The individual is being demanded.

no particular individual. specific.

19Notwithstanding that it may be agreed that the loss or destruction of the thing will be compensated... this is law.

private, everything can be agreed upon.

20To oppose procedurally, by means of a precautionary measure probably.

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 Effect on the loss of the thing The genre does not perish. It must The loss does produce an effect
that thing to which it has been attending to how it was
thank you. loss
If it was accidental, it causes the
extinction of the obligation, to the
impossible nobody is obliged.

For negligence: The obligation

must be fulfilled by
equivalence. (Compensation
compensatory)

The risk of loss of the The debtor assumes it. The creditor assumes it.
what

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 Civil Obligation.

Definition: It is one that gives the right to demand.1its fulfillment, and that once fulfilled allows
retain what has been given or paid in relation to them.

Natural Obligations. 1470:

Definition: They are those that do not grant the right to demand compliance, but once fulfilled
It is possible to retain what has been given or paid in relation to them. It does not give rise to action but does give.
exception.
They are treated based on article 1470. This is because civil obligations are the rule.
In general, the code is intended to address civil obligations.
That a obligation is natural is an exceptional situation.

Analysis of Article 1470:

The doctrine for teaching purposes has indicated that 1470 can be divided into 2 groups.
1. Rescindable and null obligations21470 No. 1 y3
3. Distorted or degenerated Civil Obligations

1st Group of Rescindable Natural Obligations3or null4.

They arise from legal acts. And they are acts that lack some requirement.
1470 No. 1: Natural obligations, those contracted by persons who have sufficient judgment and
discernment, are, however, unable to obligate themselves according to the laws, like adult minors5.
Do the acts of the interdicted squanderer create natural obligations?
The doctrine discusses it, some point out (the majority) that the "DI" cannot generate obligations.
natural. Because the 1470 in its No. 1 demands that the person must have sufficient judgment and
discernment. And someone who dissipates their wealth what judgment and discernment will they have,
that is precisely the reason why he/she is declared interdicted. If he/she does not measure the consequence of his/her
acts, lack the due judgment and discernment that the law in No. 1 requires to be had.
Those who choose to say that it creates natural obligations use as an argument
mainly the fact that 1470 No. 1 places the minor adult as an example. And if we are
speaking of relative incapables, the only other case is the interdicted dissipator, in such a way
that if we take out the forbidden heatsink, we run out of examples. And if that were the case, the
the legislator would have said.
They are acts celebrated by incapacitated individuals. Any incapacitated individual? No, there are absolute incapacitated individuals.

to discard them absolutely because this one does not have enough judgment and discernment. Moreover, the
Article 1447 states that the act of an absolutely incapable person does not generate even natural obligations.

1470 No. 3

1Having a legal action, personal rights give rise to personal actions.

2On relative nullity.
3For being susceptible to relative nullity
4Since they suffer from a vice of absolute nullity.
5The relatively incapable are 2, the minor adult and the interdicted spender.

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 1470 No. 3: Those that arise from acts that lack the formalities required by law.
that produce civil effects: such as paying a legacy imposed by a will that is not
has granted in due form
Article 1443 states: The contract is solemn when it is subject to the observance of certain
special formalities, so that without them it produces no civil effect;

Therefore, the consensual sale of a property at 5 in the morning would produce a

natural obligation. Because if the non-observance of a special solemnity such as is the
The granting of the public deed means that without it, no civil effect occurs.
And the natural obligations tell me in 1470 that they are those that arise from acts to the
that lack the solemnities required by law to have civil effects.
It gives us the example of the act of leaving a legacy through a will that has not been
granted in the proper way.
What has been said is that the doctrine states that it only applies to legal acts.
unilateral. For he only said act and not contract or convention and moreover gave as an example the
will.

2nd Group: Distorted or Degenerated Civil Obligations.

In this group, we find obligations that were civil obligations but lost such status.
virtue and became natural, that's why "deformed". What has been lost then is "the
"action" and with it the civil nature of the obligation becoming natural.

1470N°2: Civil obligations extinguished by prescription.

1470N°4: They are civil obligations that have not been recognized in court due to lack of
test.

In 1470, it contains natural obligations. Are they exhaustive?

There are arguments for both sides.
Those who say that Yes is exhaustive argue:
The fact that an obligation is natural is an exception, and therefore can only have that.
character those to which the law has given such character6.
2. By pointing out the natural obligations, it indicates the expression 'such are'. In hermeneutics,
that expression implies definitiveness.
3. There are some articles that refer to natural obligations by indicating that
It's from 1470, for example, article 2296 regarding the payment of what is not owed.7.
4. The same 1470 refers to natural obligations as 'these 4 classes of
obligations.

Those who say it is not exhaustive argue:

With an objective demonstration, they point out that there are other norms, not only in the code but also in
other laws that create natural obligations.
For example. The penalty in the betrothal of Article 99 of the Civil Code8.

6Itis said that exceptions only allow for a restrictive interpretation.

7What has been paid to fulfill a purely natural obligation cannot be repeated.
in article 1470.
8
Engagements are an agreement to marry, none are legally obligated to marry.
Engagements can include a penalty. E.g. Jhon & Mary commit to getting married before the end of the year.

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The game and the bet of article 2260. The winner cannot demand payment, but the one who pays cannot.
Can you repeat what was paid?
Thus, there are several other examples from which the doctrine takes to indicate that 1470 is not exhaustive.

What has the jurisprudence said?

He has said that the 1470ES is mandatory. The argument he has used the most is that the obligations
exceptional natural lessons that do not allow interpretation by analogy.
Does the law say that the penalty for engagement is a natural obligation? No.
Does the law say that gaming and betting create natural obligations? No
And if the law does not say so, they are not, and that’s that. Just because it seems like a natural obligation does not mean it is.

say that it is.

What do I answer if they ask me in the exam? All of this-

Which one do I defend? The one I handle better.

Characteristics of Natural Obligations.

Natural obligations do not give the right to demand compliance

They allow to retain what has been given or paid in relation to them.9.
3. Natural obligations can be extinguished by the generality of the modes of
extinguish10
They are subject to caution11.
5. They are not affected by res judicata12.

pointing out that if one regrets it, they must pay the other 20 million pesos. There is no action to collect it.
It is a fine, but if it is paid, it would be well paid. Those are the characteristics of an NGO.
9For this, the payment made must meet 2 requirements:
It must have been paid voluntarily.
The one who pays must have the free administration of their assets.
If the payment does not meet these requirements, e.g., if it was not voluntary, or if it was an adult minor who does not have free will.
management of assets. Its nullity is requested because as a legal act it was null.
10Even by novation. Thus, the following are excluded:

a. the prescription (NGOs do not prescribe because prescription extinguishes actions and NGOs do not have
action)
the legal compensation. Since the obligations that are offset must be currently
Required 1656 No. 3.
11That guarantee has to come from a third party. Because if the debtor themselves provides the guarantee, what sense would it make?

Creditor, it is no guarantee if both are natural.

12It is a peremptory exception that the court must resolve when issuing a final judgment. The judge accepts it by

finding the prescribed action. Does this mean that this obligation remains natural? In short, when a
the ruling dismisses the collection of an obligation for being natural, the obligation does not cease to be natural. Therefore
is not affected by res judicata.

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 Obligations with Plurality of Subjects.

In classifying obligations according to the subjects involved,

We have the obligations of individual subjects, which are the general rule, those where there is
a single creditor and a single debtor, then who collects and who pays is a topic
resolved.
Then we find obligations with multiple subjects, and we have in that
category of obligations that are simply joint, also called
"conjunctive" or "joint", are synonyms and refer to cases where there are several debtors,
but each debtor pays only the part that corresponds to them and in turn, each creditor
charge only the part that corresponds to you.

It should always be kept in mind the following:

● In simple joint obligations, the object can be divided and is divided:
the tenor that each debtor will pay the part that corresponds to them and each debtor will collect the
part that corresponds to him.
● In joint obligations. The object can be divided, but it is not divided. Because
the parties, the law or the testator1they agreed that way.
In indivisible obligations, it is the object of the obligation that cannot be
divide.

SOLIDARY OBLIGATIONS

The code dedicates Title IX of Book IV, articles 1.511 and following.
Definition: These are cases where there are several debtors or several creditors of a
same divisible object, where each debtor is obliged to pay the full debt and each
the creditor can demand the total payment of the credit, as indicated by the convention in the will
or the law.

Its modal obligations, this modality in the fulfillment of the obligation, is

incorporates through an accidental element, which is the indication of compliance with the
solid performance.
REQUIREMENTS OR ELEMENTS:
1. Plurality of subjects: It can be plurality of debtors (passive solidarity),
plurality of creditors (active solidarity), or plurality of both (solidarity
mixed).
2. Divisible object: The object of the obligation can indeed be divided, but by establishing it.
thus, the convention, the will, or the law, is not divided. The best example is the
money2..

1What are the sources of solidarity? The will of the parties, the will, or the law.
2If the object of the obligation is indivisible, then we are faced with an indivisible obligation.

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 3. Unity in provision: The object owed is the same for everyone, both
creditors as well as debtors. That the same amount is owed by all does not mean that it
It should be done in the same way. The code clarifies this in article 1.512. Some may
term debt, others under condition, others in pure and simple form. To my friend Pedro
I can give a deadline that I didn't give to the rest.
4. It is not presumed: It must always be expressed. 1511.3º

SOURCES:
The convention
2. The will
3. The law: When the law is a source, it only imposes passive solidarity (obviously).

Why does the law generate solidarity?

On one hand, it serves as a guarantee. An example of this is that the law states that when there are several
borrowers, all of them will be jointly responsible for taking care of and restoring the item.
The same applies when there are several executors, who will all be jointly responsible.
responsible for fulfilling the assigned task.

Solidarity as a sanction.
Sometimes the law imposes solidarity, not as a guarantee, but as a sanction, for
example.
When several people commit a crime or quasi-crime, the law states that they will be
jointly responsible to the victim (we are talking about civil).
When several debtors willfully default on an obligation, it becomes
jointly liable as a consequence of wrongdoing.
The now repealed second paragraph of article 130 stated that when the woman does not
She will respect the time of the second marriage. The law indicated that she and her new
husband (at that time, today spouse), or their new civil partner as the case may be,
they would be jointly responsible for answering for all damages and costs
that have caused third parties due to the uncertainty of paternity.

Only passive solidarity is asked in the degree exam, active solidarity is not asked.
and the mixed one is only offered in the regular civil course.

PASSIVE SOLIDARY OBLIGATIONS

Definition: These are obligations in which there are several debtors for the same object.
divisible in such a way that each of them is obligated to make the total payment, as established by the
parts, the testator or the law. (Doctrinal, because there is no legal definition).

REQUIREMENTS:
● Plurality of subjects.

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 ● Divisible object.
● unit of provision.
● It must have been expressly stated.

SOURCES:
Convention
Will and
The law.

Legal Nature of Passive Solidarity

It is necessary to make some distinctions:
• When the source of passive solidarity is the convention, its legal nature is
that of being personal bail3.
• When it is born from the law, it is a guarantee or a sanction. Guarantee, for example, in the
In the case of the bailment recipients who damage the property, they are jointly liable, says article 2189.
Or as a sanction for the case of article 927 in possession actions.4.

Art. 927. The action for restitution can be directed not only
against the usurper, but against any person, whose possession
derived from that of the usurper by any title.
But they will not be required to compensate for damages.
but the usurper himself, or the third party acting in bad faith; and having
several obliged persons, all will be held jointly liable.

EFFECTS OF PASSIVE SOLIDARITY:

The best thing is to divide it into 2 groups.
1. Effects between creditor and joint debtors or stage of obligation to the debt or relationships
external to solidarity.
2. Effects between co-debtors or stage of contribution to the debt or internal relationships
solidarity.

This needs to be understood.

EXAMPLE:
Three people come to ask me for money to go see Daddy Yankee.
Juan asks for 30, María for 70, and Pedro for 50.
I tell them yes, but that the 3 will respond to me collectively for the total of 150,000 that
I am going to disburse.
And I ask you to make María's father a joint debtor in this obligation, because
I don't trust Juan, María, or Pedro at all. But... why would María's dad want to obligate himself?
The mere trust in them is reason enough.

3Itis said to be the most effective of personal guarantees (in comparison to the bond, it is an institution of
very superior guarantee, (considering that solidarity is not a guarantee, but a personal bond, which is a
advance preparation to avoid risks) whenever the guarantor enjoys the benefit of excussion. The co-debtor
In solidarity, one is always obliged to the total, and the creditor has a plurality of assets from where
to collect.
4There are more cases, it is not the only one, like for example 2317.

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The law states that there are 2 types of debtors.
Those who have reported a benefit in the obligation (Juan, María, and Pedro).
No interested parties: Those who have not benefited from the obligation (Maria's father).

In all solidarity, there must be at least 2 debtors.

At least 1 co-debtor must be interested.
For example. All of you, because I am cool, are my joint guarantors in a
obligation that I incurred. Only I am a co-debtor interested,
and all of you are jointly liable, not interested parties.
In a group of 40 people that we all are in total,
There can well be only one interested co-debtor, which in this case would be me.
BUT!!!
What can never be,
only co-debtors not interested,
that never, that is not possible.
There may only be interested parties, both from one side and the other, the proportion in which that happens as well.
interests
In the example it’s just me, that would be one out of 40, and there’s no problem.
But only co-debtors, NOT interested parties, no!
It's as if we are all co-debtors of an obligation that does not interest us.
That could only thrive on the bond, but from the bond that I am lending, I do not.
I am a debtor, not a guarantor.

EXTERNAL RELATIONS OF SOLIDARITY.

We are talking about the effects between the creditor and the joint co-debtors, or also
It is called the stage of the obligation to the debt. What happens between one and the other, that study, that analysis is
what is referred to as 'External Relations'.

If they tell you: Refer to external relations:

Well, professor, within the obligations with multiple subjects, we find the obligations
solidarity. Within solidarity, the effects of solidarity are studied. The effects that are
produced between the creditor and the co-debtors are called External relationships. And it is called
external relations, since the obligation, the legal bond, does not care who they are
interested co-debtors or those who are uninterested co-debtors, this, at this stage of
"obligation to the debt", we determine who is obligated to the debt, who is the creditor and who
he is the joint guarantor. Debtor that due to their characteristics can only be 2 or more people, and
since that analysis only seeks to identify who can be charged for the benefit, in other words, it looks at the subjects of the
obligation, is called external relations.

The creditor can collect the total from any of them.

But... If I can charge the total, I can also charge them a part. Because whoever can do the most
it can be less5So...
Does this mean that I renounced solidarity?

5If then you are not able to do the least, why are you anxious for the rest?

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Many say yes, that it would be a tacit resignation. But it can also be argued that no, if as
Creditor, I have a credit of 15, and in the debt there were 3 debtors, well I can charge 5 to each.
one. And they might each pay 5, and that’s it. But... what if they don’t pay? in a further clause, of the same document
I can indicate that if payment is not made in the requested manner in the main matter, payment shall be condemned.
to Sebastián from the total because of the 3 co-debtors he is the one with the most assets and the eventual
The non-compliance of the other two was the reason why Sebastián obliged himself. Because he is a co-debtor.
Not interested, unlike the other 2 who received 7.5 each.

So is it a tacit resignation? Of course not, just because I have a right and do not exercise it
it does not mean that he has renounced it. That would be a sanction, and the law must strive to
offer all the possibilities to the creditor to satisfy their credit.

What cannot be done... is that if I asked Sebastián for the total, he can still...
sue Michelle for her share. Since if I win in both trials, I will have several
favorable sentences that would allow the collection of an amount that exceeds the total of my
credit and remember that the code repudiates unjust enrichment.

When a co-debtor is sued, the statute of limitations is interrupted with respect to all.
the co-debtors. Obviously, because if things go badly for me in that trial, I have the collection action safe.
of the rest of the co-debtors.
If a co-debtor is in default, all co-debtors are in default.
When it becomes impossible to fulfill the obligation, only that co-debtor will be responsible for
the damages caused to the creditor.

INTERNAL RELATIONS
Here the creditor disappears.
It is necessary to distinguish: on what grounds was the obligation extinguished? Gratuitous or onerous?

If it was extinguished free of charge, the obligation is extinguished and the solidarity is also extinguished.
Free of charge:
Prescription
Referral
Fortuitous loss of the thing that is owed.

What matters is… once the obligation is extinguished, solidarity is extinguished.

Among the debtors, there is no settling of accounts; no one owes anything to anyone.

Extinguishes
obligation
Free Extinguish
solidarida

For consideration: Any method that implies making an economic profit. The creditor is granted
has satisfied your credit.
If it was extinguished for a price, we need to distinguish whether we are facing a co-debtor.
interested or not interested.

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If a co-debtor interested was paid. That is, a co-debtor who reported some benefit from the obligation.
Then the obligation is extinguished, solidarity is extinguished, and what is called the
imperfect subrogation. And it has the action to collect from the rest of the co-debtors without solidarity.
If we are facing an uninterested co-debtor, the obligation is extinguished, but in this case it persists.
solidarity and performs perfect subrogation.

How to know if the subrogation is perfect or imperfect?

If someone subrogates in the rights of the creditor, they do so with the same benefits as those of the creditor.
enjoyed, then the subrogation will be perfect. If, as in the example, a co-debtor interested pays,
Subrogation extinguishes solidarity, it no longer enjoys the same rights that the creditor had.
primitive, then the subrogation is imperfect. If a non-interested co-debtor paid, then
maintains the same privileges as the creditor, perfect subrogation.

The joint credit is transferable, the joint obligation is not. This means that if A, B, and C...
They are jointly liable for 15 to D, and A dies. D can only collect the 5 from A's heirs.
should A.

How is solidarity extinguished?

1. Because the obligation is extinguished.
2. For renunciation of solidarity6
3. When a joint debtor dies, regarding the heirs of that debtor.

extinguish
obligation
extinguish
Interested solidaridad
subrogation
imperfect
onerous
extinguishes obligation

not interested perfect subrogation

solidarity persists

6No to the debt, watch out, if the debt is extinguished, solidarity is extinguished because it has been extinguished.
obligation.

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 Divisible and indivisible obligations

We will start by indicating that the element on which the characteristic of divisible falls
the indivisible nature of an obligation isthe performance of the obligation, the object of the obligation
.
We know that the performance of the obligation is what is intended to be given, done, or not.
to do, that is the object of the obligation, that is the performance. And to know how it is fulfilled
that obligation we have to answer the question: What is that which is meant to be given,
to do or not to do?
And there we have the different situations that can arise, it is about giving a sum.
it's about making a material work, it's about not emptying the pool, etc...
Ultimately, it is about giving, doing, or not doing.

When is an obligation divisible?

Professor, the obligation is divisible depending on whether its performance is divisible or not.

Article 1524 states, "The obligation is divisible or indivisible, depending on whether it has...
object or not, a thing susceptible to division, whether physical, intellectual, or of share.

Divisibility can then be

1. Physics1
2. Intellectual or quota.

Then we have that the obligation will be divisible if there is no physical impossibility or
legal so that the due object can be divided, physically or intellectually.

• Physical divisibility, it is a concrete material ,division, something is susceptible of

physical divisibility, when it can be divided without losing its individuality or utility,
A horse or a car can indeed be divided, but no one would think of doing so.
say 'Oh look, a cow!' when passing by the display window of an empanada factory. Neither

1All material things are divisible both physically and materially. However, the law usually establishes

indivisibility of certain things or rights, such as trust property and easements (art 751, 826,
827, 1317

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 no one would say 'Oh look, a car!' when they see a pile of tires one on top of the other.
another.
• Intellectual divisibility it is achieved as its name suggests, with just the
intelligence; it is an imaginary division, an abstraction, an idea. The car or the
Horses can belong to multiple people.

Effects of divisible obligations

The civil code recognizes 2 types of indivisibility:

1. Exceptions to divisibility.
2. The proper indivisibility;

We go to 1.526, which tells us: If the obligation is neither joint nor indivisible,
each of the creditors can only demand their share, and each of the co-debtors is
"only obligated to pay their own." This is the GENERAL rule, the obligations
simply joint, or communal, or conjunctive, are the same.

Exceptions to the divisibility OR INDIVISIBILITY OF PAYMENT

We already know what the fundamental rule is. However, and exceptionallythe
divisible obligationcould be found in the legal need to only be satisfied by
in full form or in other words, inability partially fulfilled, and this is because the
the parties agreed to this and expressed it explicitly or implicitly.

The study of obligations indivisibleis given by the exceptions to the

divisibility, in an obligation whose object is indeed fully divisible, but in its
compliance behaves like an indivisible obligation.
It is literally very rare to encounter an obligation that is 'indivisible' in the proper sense, and
the interest in establishing them is practically nil. But when we talk about 'Exceptions to
In divisibility, we find a practical interest.

We will study 7 exceptions to divisibility.

1. The mortgage or pledge action.

2. The debts of a specific thing or a certain body.

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 3. The action for damages against the culpable debtor.
4. The will, the convention of heirs, or the act of partition that imposes on a
heir the total payment.
5. Agreement between the cause and the creditor that imposes total payment on an heir.
That thing whose division causes harm.
7. Alternative obligations.

Let's look at the detailed development of each of the exceptions.

The mortgage or pledge action: an obligation that is secured with a pledge or mortgage is
One can clearly distinguish what is the main obligation from the accessory obligation.
The main obligation can well be divisible, as when $100 million is lent to
5 people. The creditor can only collect their share or quota from each one. The obligation
accessory in change, is always indivisible. Article 2405 states: “the pledge is
"indivisible" 2.408, Article 2405 states: "The mortgage is indivisible."

2. The debts of a specific thing or certain body:

If the debt is of a specific species or certain body, that
of the debtors who has it is obliged to deliver it (art 1.526 No.2). The materiality of the
The delivery must be verified by the holder of the thing (obviously, the one who does not hold it could not deliver it.

The obligation to give, properly speaking, is divisible. We know that each one of the
debtors are obliged to transfer their share or portion of ownership. But when it comes to a
specific or certain body, the obligation to give, which includes delivering the thing, can only be
to claim 'from that one' of the debtors who has the thing, if there are several.

3. Action for damages against the culpable debtor: If due to an act or fault of a co-debtor, it
has made it impossible to fulfill an obligation, is solely responsible for
to the detriment. (1526 No.3). The wording of the article is not friendly. Because improperly
exclusively and jointly responsible
responsible for the damages.

4. Will, heir convention or partition act that imposes the payment of a debt
2 3
to an heir. We know that both inherited debts and testamentary debts
divided among the heirs in proportion to their inheritance shares4But the testator, the

2Those that the deceased had in life.

3Those that arise from the will itself.
41353 and 1360.

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 The same heirs or the partitioner can arrange for the debts to be distributed among the
another way than pro rata. Thus, 1526 No.4 tells us that when the Testator, the heirs
or by act of partition, an heir has been assigned the obligation to pay the total of a
debt, the creditor may address that heir for the total debt or against each
one of the heirs for the portion that corresponds to him pro rata5It is a right of option
what the creditor has.

5. Agreement between the cause and the creditor, which imposes on the heir the total payment of a
debt. Here the debtor and creditor reach an agreement. Now Jacinto, I owe you a million of
pesos, and if I die, my son Pedro will pay the debt. Article 1526 points it out to us.
No. 4 subsection 2, "If it has been expressly stipulated with the deceased that payment could not be
to be done in parts, not even by the heirs of the debtor, each of them may be
obliged to come to an agreement with his co-heirs to pay the total debt, or to pay it himself
same, "save your sanitation action." Save your sanitation action, It means that the
The heir who paid the total now has the right for the other heirs to reimburse him.
what he/she overpaid beyond what was due, taking into consideration his/her share.
Here comes a giant but. Indivisibility IS ONLY PASSIVE, the heirs of the debtor
They must pay the total, but the heirs of the creditor cannot demand full payment.
unless they act together. The heir of the creditor who demands alone can only
collect your share or quota of the credit. 1526 No. 5.2º

If something is owed whose division would cause serious harm

6. Something whose division brings harm.
to the detriment of the creditor, co-debtors may be required to come to an understanding with each other, to
the payment of the whole thing or for him to pay it himself, without prejudice to his action so that then
the rest I compensated. It resembles the previous case, but it differs from it because in this one the
indivisibility comes from an express declaration of will, in this case it is the law that
establishes indivisibility.

7. Alternative Obligations: I owe you this or the other

to make the payment it can correspond to both the creditor and the debtor, but if they are
Various, this must be carried out by mutual agreement. Thus, Article 1.526 No. 6 illustrates to us, 'When...'
the obligation is alternative, if the choice is up to the creditors they must all make it
They must do it all together; and if it is from the debtors, they must all do it together.

5
On this point, we will mention 2 things: thata)
articles 1358 and 1359 repeat this rule and that whenb)
when we talk about testamentary debts here the situation changes a bit, because testamentary creditors
they are obligated to respect the will of the testator in the will, but not the agreement of the heirs nor
the layout of the starter.

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 Effects of indivisible obligations

Article 1527 and the following address obligations that are properly indivisible. These rules
basically they make us realize that, essentially each debtor only owes their share
each creditor can only collect their own in the credit they enjoy. So, if each
the debtor is obligated to pay the total and at the same time each creditor has the right to
demanding the total of your credit is because the object of the obligation simply cannot
to divide

To understand the effects of indivisible obligations, we must appreciate them from

2 distinct dimensions. Firstly, from the creditor's side (active indivisibility) and
then from the debtor's side (indivisibility (passive).

Let's start with the passive indivisibility

Let us remember that indivisible obligations are studied in relation to obligations with
plurality of subjects. In this case, we are dealing with a plurality of debtors.

a) Each of those who have jointly contracted an obligation is obliged to

to satisfy her completely. What is said for the debtor applies to their heirs.6(art 1527).
b) The statute of limitations that is interrupted for one of the debtors of the obligation
indivisible, it is also interrupted for the rest (1529)
c) The fulfillment of the indivisible obligation by any of the obligated parties,
extinguishes with respect to all (art 1531).
d) The obligation to indemnify for damages resulting from the breach of an obligation
indivisible is divisible. And the debtors come to it according to their share.
less than, as already mentioned, if the obligation to compensate for damages comes from
the fault of one of the co-debtors will make this one exclusively responsible for it
obligation. (Art 1533). If an act that must be executed by 2 debtors and one of them
if it refuses or delays, only this one will be responsible for the damages caused to
creditor (art 1534).
e) Each debtor owes their share or quota, but due to the indivisible nature of the object
due to the need to pay the total, and once it has been paid, there is action

6
It is from here that we extract that indivisibility, unlike solidarity, is that it passes to the
heirs. In contrast, solidarity is not communicated to the heirs of the joint debtor and they will be
obliged to the part or share of the debt that corresponded to the deceased.

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 against the other co-debtors, so that they compensate him for the excess of what is due
for him. Since he has paid more than he actually owed.
f) The debtor summoned for the payment of the obligation can request a deadline to
to come to an understanding with your co-debtors and fulfill it collectively. Unless the obligation is
of such a nature that only he can fulfill it, because in that case he will be able to be
condemned, of course, to full compliance, saving the action in
against the other co-debtors for the compensation they owe. Art 1530.
Example:An heir claims a property and the obligation consists of establishing a
easement of passage.
Three companies are coming together, two from IT and one from design for the creation
Another Example:
of a digital platform for a company. The programming is ready but the
graphic part and the design company is being demanded because only they can fulfill
with the obligation.

About the example: there are examples that contain institutions such as usufruct, such as the
servitudes, such as fiduciary property or whatever... which are the same that were used in
the undergraduate degree, in all the universities where the professors of their professors were trained. For
Thus, they are institutions that teachers manage (or at least should manage).
Don't make the teacher think with the examples you give them, don't make them do the mental exercise.
of having to mentally check if the exercise applies to the case or not. Give them very examples
simple, because the only thing the teacher needs to understand is that you understand the institution,
Not that you have clients, or that you have seen cases, or that you are a modern student.

Let's now look at active indivisibility:What happens with the indivisible obligation, when they are
various creditors.
1. Each creditor of an indivisible obligation can demand full payment (1527). Thus
each of the heirs of a creditor of an indivisible obligation can
demand its full execution (1528).7
2. Payment to a creditor extinguishes the obligation regarding everyone. BUT, the creditor
from an indivisible obligation, without the consent of its co-creditors, it cannot
carry out acts of disposal (such as transferring the debt, receiving the price of
the thing due), as the joint creditor could do.
The creditor who receives the payment owes his co-creditors their share or quota in the credit.

7
Here we have that unlike solidarity, which ends with the death of the cause, in the
indivisible obligations this is communicated to your heirs.

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 Parallel between solidarity and indivisibility

We have different ways to create a parallel, in the parallel of responsibilities...

we made it attending to various criteria by virtue of which it is possible to compare. In this
On this occasion, we will refer to the method of similarities and differences.

Similarities. Let us begin by noting that the legislator understands that they are obligations
similar and in article 1525 clarified: "Being a joint obligation does not give it the character
of indivisible.
1. First, both species of obligations are classified into obligations with
plurality of subjects.
In both species of obligations, each creditor can demand full payment and
each debtor can be sued for the full payment.
In both species of obligations, the total payment made by either of the
Debtors to any of the creditors extinguish the obligation with respect to all.

Differences:This is important to understand.

In solidary obligation, each debtor is bound to total paymentof the obligation,

and the full payment can be claimed. But in the indivisible obligation, each debtor only
must its part or share, nothing more, however... Because of the nature of the obligation, which does not
is subject to partial execution, the debtor who is sued is forced to make a
full payment.

• In the joint obligation, the creditor tells their debtor: "You owe me the total,
Pay me!
• In an indivisible obligation, the creditor of an indivisible obligation tells his debtor:
You do not owe me the total, you owe your part, but since it is impossible for you to comply with
a part, because the obligation is indivisible, and is not susceptible to partial execution,
but I need to be completely satisfied, I demand this from you for the
full compliance with the obligation.
•
For example,3 construction masters forced themselves to paint the facade of my house.
A teacher cannot come and say: boss, I already did the brush strokes that were mine.
because remember that we were three.

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What happens with this?

To my creditor, I am not interested in how many they were, or if they are married, or if they have children, or if they have
dog or where they live. What interests me is whether my house is painted or not.

Nature of the damages (regarding the susceptibility to division).

a) The joint obligation has an object that is naturally divisible, but by the
convention, the will or the law, the obligation is not divided.
b) But on the other hand, in the indivisible obligation, it is the object of the obligation that
simply, it cannot be divided either by its nature or by the will of the
parts8.
c)
Inheritance situation

a) Solidarity does not pass to the heirs (art 1523)

b) The indivisibility passes to the heirs and for them the obligation remains indivisible.
(1528)

If it seems the thing.

a) If the due thing perishes9in the indivisible obligation, this changes in object and now
it is no longer the thing that is owed, but now the price plus the compensation for the
harm. But this is now a new obligation and it is no longer indivisible, now each
the debtor is obligated to fulfill their part or quota (1533) unless
as we have already seen and reiterated, if the breach is attributable to one of the
debtors, only this one will be responsible for all the damages.
b) If the thing is lost in the joint obligation, the obligation to pay the price that
replaces the due thing, it is also solidarity (article 1521).

Powers of the creditor.

In a joint obligation, each creditor is considered the absolute owner of the credit.
It can forgive the debt, novate it, receive the price of the thing, etc. (art. 1518 and 1519).

8Let us remember here that the sources of indivisibility are the indivisibility itself (due to nature
of the performance); and the exceptions to divisibility.
9 We are talking about the fortuitous loss of the species or specific body, because we know that the gender does not.
perish.

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 b) In the indivisible obligation, each creditor owns their share, and cannot remit,
novar etc. (1532).

Debtor exceptions.

a) In joint obligation, as each debtor is liable for the total, they cannot raise any
exception, to request the attendance of the other creditors and make the payment.
In indivisible obligations, the creditor can request a deadline to come to an understanding with
joint debtors and fulfill by mutual agreement (1530).

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 THE CONDITION.

The code addresses it in the 3rd book on 'testamentary assignments subject to condition' and in the
book 4° "obligations subject to condition."

Definition: It is the uncertain future fact.1on which the birth or extinction of a depends
right.

Element within the legal act: It is an accidental element, incorporated through clauses.
special. Exceptionally, it can be an element of nature as in the resolutory condition
tacit, since according to 1.489, in bilateral contracts it is involved (element of the
nature) the tacit resolutory condition of non-fulfillment of what was agreed upon by one of the contracting parties.
Or it could also be an essential element, as in the promise contract mentioned in article 1554.
No. 3 requires that the promise contain a deadline or a condition that sets the time for the celebration.
contract.

State in which it can be found: It can be pending, fulfilled, and failed.

Pending: it means that the event does not happen yet, but it could happen. When Pedro
she takes her degree exam.
Fulfilled: When the event occurs. Pedro took his graduation exam.
●Failed: It means that the event has not occurred and that it is not going to happen. Pedro died and he is not going to
to be able to perform.

The condition may depend on the birth of a right (suspensive condition)2Or well,
The extinction of a right may depend on the condition, which is referred to as 'condition.'
"resolutory". The extinguishing condition does not exist.

CHARACTERISTICS:
1. It is a future and uncertain fact.
2. As a general rule, it is an accidental element but exceptionally it can be an element of
nature as in the tacit resolutory clause of article 1.489 or of essence
using the same example from the promise contract in article 1,554 N°3
3. You can find pending, fulfilled, and failed.

Way in which the condition must be fulfilled.

The previous question is resolved with the application of 2 articles, 1483 and 1484.
First. Article 1483 states:

Article 1483. The condition must be fulfilled in the manner agreed upon by the parties.
probably understood that it was, and it is presumed that the m modeás
The rationale for fulfilling it is what the parties have understood.
When, for example, the condition involves paying a sum of money
to a person who is under guardianship or curatorship, there will be no for compliance
the condition, if delivered to the same person, and this person dissipates it.

1As long as there is some possibility of uncertainty, it is a condition. If Pedro marries María. If it rains tomorrow.

etc...
2As long as the condition does not occur, the birth of the right is on hold.

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 This article must comply with the 1560, in that it is clearly known that
the intention of the contracting parties should take precedence over the literal meaning of the words.

It corroborates the above, what is provided in article 1484.

Art. 1484. The conditions must be fulfilled literally, in the

agreed form.
This means that it is determined. The way the parties wanted it to be fulfilled has
that must be fulfilled in this way and not in another. It cannot be fulfilled by equivalence.

Fictional compliance with the condition.

This is the institution established in article 1481, second paragraph. It concerns the situation in the
that the conditional debtor (that is, the person who must fulfill the owed performance) if it
meets the condition, seeks to use illegal means to prevent the condition from being fulfilled or to
that the person on whom the fulfillment of the condition partly depends does not cooperate and thus does not have
that he must fulfill the due obligation. The law penalizes this debtor, establishing the fiction
legal to consider the condition fulfilled and thus placing it in the legal situation of having
to comply with what was obligated, in the case where the condition had indeed been met.
The code project of 1853 had an example: My heir will give such a thing to Pedro if he gets married.
with Maria. If the heir slanders Pedro and Maria does not marry him, he will still owe the legacy.

Expiration of the conditions.

To understand when the condition fails, it is necessary to distinguish whether it is a positive condition.
negative O. The positive condition fails when it has become true that it will not happen.
event contemplated in it. Or when the time expired within which the event.
It should have been verified and it wasn't, for example, if a million pesos weren't sold for Christmas.
If the condition is negative, it fails when the event that should not occur happens.

Effect of the expiry of the condition.

To know the effect of the expiration of the Condition, we must distinguish whether it is suspensive or
resolutory.
• Suspensive: The conditional creditor will not acquire the conditional right.
"When you pass your graduation exam, I will gift you a car." But it turns out that, for...
Presidential decree eliminates the graduation exam.
• Resolution: If the condition fails. The right is consolidated in the possession of the conditional debtor.
that nothing shall have to be restored. For example: 'I give you ownership of this house, but when
your brother passes the degree exam, you have to hand it over to him." It turns out that the
The graduation exam no longer needs to be taken. And what happens is that the risk disappears. For the
a person who could lose control of the house, if the condition was met.

Retroactivity of the fulfilled condition.

That the fulfillment of the condition operates retroactively means that, once
once this is fulfilled, the effects of the act or contract are retroactive to the moment in which said act took place
celebrated and not from the realization of the conditional fact.
It aims to protect the conditional creditor from acts or encumbrances that may arise.
has carried out the conditional debtor, while the condition was pending.
To understand the effects of the retroactivity of the fulfilled condition, again
We have to distinguish between the suspensive and resolutory condition.

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 • Suspensive: It is considered that the legal act has always had the character of pure and simple.
The conditional creditor shall be deemed to have acquired the right from the moment of the
celebration of the act or contract and not from the occurrence of the conditional fact. From the same
In this way, the debtor will be seen as having been obligated since the very date of the
celebration of the act or contract and not from the realization of the conditional fact.
• Resolution: If the conditional fact is fulfilled, the contract is resolved. The parties remain,
as if they had never been linked to each other. Then the conditional debtor of restitution
everything that was received at the moment of the celebration of the act or contract.

Exceptions to the retroactivity of the condition.

• Article 1488 states that the fruits produced by the thing shall not be restored.
While the condition was pending.
• Article 758 in the trust. It authorizes the trustee to change the form of the property.
trustee preserving its integrity and value. If the condition will operate retroactively,
this rule could not exist.
• Articles 1490 and 1491. Regarding the acts of alienation carried out by the debtor to
good faith third parties, while the condition is pending, are valid. This would not be possible if the
condition will operate with retroactive effect.

Risks of the loss of the thing owed under condition.

Everything that destroys the suitability of the thing for the object, according to its nature of the
What is destined according to the agreement of wills, is understood to destroy the thing.
The typical example is: The racehorse that breaks its leg.

Let's remember that the accidental loss of the species or specific body due to extinction extinguishes the
obligation (1567 No. 7). But if the loss was culpable, then the debtor no longer owes the
What, because it was extinguished, but must be the price plus compensation for damages.
(1486).
Article 1486 has a criticism, since it refers to the fact that 'the obligation is extinguished.'
but an obligation that did not come to life in law could hardly be extinguished,
There would be extinction of the obligation if the fortuitous loss occurs once the condition
it's already fulfilled. For example: - Juanito, if you pass your graduation exam, I'll give you this.
truck, red Mercedes, license plate XXYY99. But it turns out that while still pending the
condition, that is to say, before Juanito passed the exam, they burned the truck in a
arson attack and that option no longer exists. Because the object of what I had
obliged to give fortuitously BEFORE the obligation comes to life in the law.
The technically correct thing then would be: that, when the species fortuitously becomes extinct or
certain body conditionally due, leaves the obligation that could arise without object
to be born if the condition is met, and even when the obligation is fulfilled, it lacks object because
missing an element of the essence, it produces no effect whatsoever. Therefore, more than
to extinguish the obligation, it is the contract that cannot produce a valid obligation and
effective, because the obligation, lacking an object, would be nonexistent (not even null, because
there would be no effects to nullify).
-
Risks of the deterioration of the thing due under condition.

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 We have to distinguish whether the deterioration is accidental or negligent.
• If the destruction is partial or we are facing an accidental deterioration, the creditor must
receive it in the state it is in, without the right to a price reduction.
• If the deterioration is partial and culpable, the creditor will have an alternative right to
"rescinda" the contract (it should have said resolve) or that the thing be delivered to him in the
state in which it is located. And furthermore, in both cases, it will have the right to the
compensation for damages.

Classification of the condition

1. In relation to the fact: Positive-Negative Condition.

The positive condition: refers to a fact that must occur. That it will rain tomorrow.
The negative condition: it consists of a fact that should not happen. If it doesn't rain tomorrow...

2. Considering the possibility that the event occurs.

Possible condition: It is a fact that can occur both physically and morally. That
Tomorrow it will rain, that Pedro marries María.
●Impossible condition: It is one that consists of facts that cannot occur and that
they can be:
Physically impossible: The fact is contrary to the laws of nature. If Pedro complies
200 years
Morally impossible: It is one in which the act is prohibited by law or threatens the
moral, good customs or public order. Ex. That Pedro marries Juan.

It is against the law to prohibit a person from getting married, but they can be allowed to.
impose the condition of not marrying a certain person (1077).

3. Considering whether or not it is known when the event will occur

●Determined condition: We do not know whether the event will occur or not, but we do know when.
It should happen. That he sells a million pesos for Christmas.
Indeterminate condition: We do not know if it will happen or not, nor when. If a lightning strike hits you...
barn.

In the fiduciary property: The code states that the condition must occur.
within a maximum of 5 years, if time passes without the condition occurring, it will be regarded as failed.
Regarding incapacity to inherit: The period set by law is 10 years.
But these deadlines are set for specific situations; however, the doctrine, to this
we could unanimously say that regarding the proposed cases, the deadline that should apply
it is the 10 years one. Unless a different term is specified in the agreement of the condition within which
this should happen.

4. Regarding what the occurrence of the event depends on:

Potestative condition (1477): The one that depends solely on the will of the creditor or the debtor.
the potestative condition is subdivided into:

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 Merely or purely Potestative: The condition depends solely on the will of the
debtor or creditor. They depend on the whim of the parties.
Example of a purely potestative condition of the creditor's will: Juan, I give you a
a million pesos if you go to Santiago on Sunday. We don't know if Juan is going to Santiago.
Sunday, but if he goes, I owe him a million pesos.
Example of a purely potestative condition of the debtor's will: I give you a million
of pesos if I go to Santiago on Sunday. E.g. You have 10 days to return the product
bought, it is the outright power of the one who decides.

The condition that is merely potestative and left solely to the will of the debtor is not valid.
That which obeys the mere whim of the debtor. Since there would not be a serious intention.
to be obliged. If the will of the person who claims to be obliged is established in reality, he does not oblige himself.
to nothing because he will fulfill it if he feels like it. Ex. Pedro, here I have a million pesos, if I want.
I lend them to you. It would be worth saying if you want, I lend them to you. (1478).

Simply optional3It is the condition that depends on a voluntary FACT,

caused, which can be from the creditor or the debtor. in conditional obligations,
simply potestative involves facts external to the parties and for that reason the link
It is always formed because there is a serious intention to commit. For example: If I don't manage to sell
I'm going to hand over the property of the field to you by the end of the year, so that you can manage it.
Another example: Ej. Juan, I’ll give you a million pesos if you go to mass tomorrow. The condition
It depends on Juan's will and whether Juan performs the act. If Juan does not go to mass, it is of no use.
because the condition is not met.
The will and the realization of a fact must coincide; circumstances must coincide.
exteriors.

Casual condition: The fact depends on a third party or on a chance occurrence. That it depends on a third party.
it means that it depends on a person other than the creditor or the debtor. Héctor, if your sister goes
I will cover all the expenses for the trip. The situation does not depend on me or Hector, but on the sister.
of Hector. That it depends on a chance means that it has nothing to do with a fact of man. For example, if
It will rain tomorrow, I'll lend you my umbrella.

Mixed Condition: The fact depends in part on the creditor or the debtor and in part on a third party or
by a chance. Example. Peter, if you marry Maria, I will give you a refrigerator. The fact depends
that María wants to marry Pedro, that it happens and that I give her the refrigerator.

5. Attending to its effects.

Suspensive condition: It is the future and uncertain event, upon which the birth of a
law (The birth of law is on hold) Ex. If you pass your degree exam
I will give you a car.
Resolutory condition: It is the future and uncertain event upon which the extinction of a
Sure. I'll lend you my car, but if I find it dirty, I'll take it back.

3The ordinary potestative ones as they are also called.

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 EFFECTS OF THE CONDITION.

To study the effects of the condition, we need to separately study the effects of the
suspensive condition and resolutory condition, as both produce different effects.

Suspensive condition:
To analyze the effects, we will use the following example:
If Pedro passes the graduation exam this year, I will give him a car.

Let's remember that the condition can be in 3 states: pending, fulfilled, or failed.
●Pending suspensive condition: The event has not occurred but may occur.
Neither the right nor the obligation is born.
b. The creditor cannot demand compliance
c. If the debtor pays, there is payment of what is not due.
d. The debtor cannot be put in default
e. The legal compensation cannot operate.
f. Mere expectation can be transmitted as long as the condition is not intuitive.
personas, situation in which they will find themselves failed due to having passed away
who was supposed to meet the condition..

Suspensive condition fulfilled:

a. The right is born and the obligation is born
b. The creditor can demand compliance
c. If the debtor pays, it is well paid.

Failed suspensive condition:

The mere expectations are extinguished.

RESOLUTORY CONDITION

Resolutory, when by its compliance a right is extinguished.

To analyze the effects, we will use the following example:

The ownership of this house is granted to María, which is subject to the condition that if Franco approves.
her degree exam within the year she loses ownership of the house because it will belong to
Frank.

Let us remember that the condition can be in 3 states: pending, fulfilled or failed.

Pending resolutory condition:

The right is born and all effects occur as if the obligation were pure and simple.

Condition fulfilled:
Maria's right is extinguished, which will pass to Franco.

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 If it is extinguished by the mere ministry of the law or if it requires a judicial resolution, it will go to
depending on the type of resolutory condition4.

Failed resolutory condition:

The right is consolidated, which means that the risk that the right may disappear is eliminated.
losing the right due to the fulfillment of the condition. Its ownership does not change or improve, but rather
the risk of losing the domain it already enjoyed disappears.

CLASSES WITH RESOLUTORY CONDITION

Ordinary resolutory condition, tacit and commissory pact.

Ordinary Resolutory Condition: The fact that constitutes the imposed condition may be
anything but the breach of a contractual obligation.
Element in the act or contract: Accidental
How it operates: By full right, it does not need to be judicially declared.
Does it have resolving action?: No, because it operates by law. And there is no compensation.
damages.

Implied resolutory condition: The fact is the breach of a contractual obligation, in a

bilateral contract. Art 1.489.
Element in the act: From Nature
How it operates: It must be declared judicially. For which it requires the resolving action.
right to compensation for damages, because there is a contractual breach. Or request the
forced compliance or requests the termination of the contract (never both as they are incompatible) and in
Any of the 2 paths can be claimed for compensation for damages, as stated in the article.
1.489

Commissory Pact: The fact is the non-payment of the purchase price, which was stipulated.
specifically in the contract. It prescribes within a period of 4 years if the parties have said nothing. (art 1.880)
Element of the act: Accidental
How it operates: One must distinguish.
• Simple commisory pact: It is known as the tacit resolutory condition but expressed.
in the contract. Requires judicial declaration. (Resolutory action)
• Qualified commissory pact: It operates ipso facto. The parties stipulate that the mere
breach resolves the contract. Unless the breach is the payment of the price in
the sale, because in that case it requires a judicial pronouncement. With the
particularity that the buyer can nullify the action if they pay the price within 24 hours
hours counted from the notification of the lawsuit. Fatal and non-extendable deadline.

Fact Element How Action Compensation

opera resolutory
resolution

4If a judicial pronouncement is required, it is a tacit resolutory condition; if it operates by operation of law, it is a condition.

ordinary resolution

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 Ordinary Anyone Accidental Of full NO
less
non-compliance
right
NO
Tacit Breach Nature Declared YES

YES
obligation
contract
bilateral

Pact Accidental Non-Compliance Simple: YES

YES
Commissioner Statement
Judicial

Rated:
Opera itself NO
fact.
buy-sell

Effects of the simple comisory pact:

Just like in the tacit resolutory condition, the seller can choose between asking for the
forced compliance or the termination of the contract and in both cases, with compensation of
harms.
2. As the resolution does not operate automatically, it must be declared judicially, therefore.
the buyer can pay up until before the summons to hear the ruling in the first instance and until
before the hearing of the case on appeal.

Effects of the Qualified Pacto Comisorio.

The contract is resolved ipso facto by the mere fact of the breach occurring. Unless
It is about the sales contract and the breach is the payment of the price of the item.

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 The Resolutory Action

We have studied that both the tacit resolutory condition and the simple commutative pact
do not operate by full right, require a judicial pronouncement, which implies that once produced the
the non-compliance gives the non-compliant contractor the right to request (judicially) that it
declare the resolution. This action is known as resolutory action.

Definition: It is the action that arises from the resolutory condition in cases where it
requires a judicial sentence1and by virtue of which the diligent contractor requests that it be rendered void
the contract for not having fulfilled any of the obligations arising from it by the counterparty.

In what cases does the resolutory condition require judicial pronouncement?

1. Tacit resolutory condition.

2. In the simple forfeiture agreement.
3. In the qualified commisory pact due to non-payment of the price in the sale.

The resolution is the effect of the fulfilled resolutory condition. Only the resolutory condition.
tacit and the simple commisso pact require a judicial declaration, therefore, they require the
exercise of an action, that action is the "Resolutory Action."

In successive performance contracts, such as the lease agreement in the

that the obligation to pay the rent accrues month by month, the 'Resolution' is named
"Termination". The nature of these contracts prevents the fulfilled resolutory condition.
It operates retroactively and only suppresses the effects of the contract for the future.

Characteristics of the resolutory action.

It is a personal action
It is hereditary.
Renounceable
Transferable and transmissible.
5. Prescriptible.
6. It can be a movable or immovable action.
It is a divisible action for some and indivisible for others.

1It is important to explicitly state 'in cases where it requires judicial pronouncement' and not to say the
that emanates from the resolutory condition alone, because there are cases in which the resolutory condition does not
requires a judicial pronouncement as in the ordinary resolutory condition, or in the commisory pact
qualified, when it does not concern the non-payment of the price in the sale, such as when they were left
to pay the rents of the lease.

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It is a personal action.
The action derives from a contract, and contracts engender personal rights,
personal rights emanate from personal actions (578). Being personal, it can only
to take action against the one who celebrated the contract and not against third parties. It could not then
to initiate action against the person who entered into the contract acting as an agent.

It is a property action.
Every time it comes from a contract, which is the source generating rights and
obligations, which are susceptible to monetary appreciation, which is literally
the definition of heritage.

3. The resolutory action is renounceable.

As it is a property action, it has the character of being renounceable by virtue of the provisions in the
Article 12 of the Civil Code, since its renunciation is not prohibited and only pertains to interest.
resignation personnel. You can resign in the same contract or later but always
before the breach.

The resignation must be explicit, it does not mean that if the contractor seeks primarily the
forced compliance, has renounced the resolutory action, If this action is abandoned in
in a broad sense, the resolution can be requested later. They are distinct actions, which is not
it can do is to establish them jointly because they are incompatible, or compliance is requested or
the resolution is requested. Without prejudice to the fact that it is fully possible to attempt in the same claim a in
subsidy of the other in accordance with what is permitted by article 17 paragraph 2 of the civil procedure code.

Transmissible and Transferable.

Regarding the transmissible nature, no further comments are necessary, considering that
provided in articles 951 inc 2 and 1097 inc.1, which tell us what we must
understand by transferable.
Regarding the transferable nature, there is a comment, can it be transferred? Yes, why not.
it has the nature of being personal, nor do the laws prohibit its assignment. However, in doctrine it is debated.
if the assignment of a credit is accompanied by the right to attempt the resolution action,
taking into account the personal nature of the action and what is stated in article 1906.
That is why, when a credit assignment is carried out, it is important to point out
expressly whether or not the resolutory action is ceded. For if it is not expressed, it could
It is understood that the assignment of credit excludes the right to pursue the action due to lack of
the acquirer (and eventual future actor) of the legal position of a party in the contract and
it should be attempted in that case by the assignor of the credit since it has not been waived.

It is prescriptible.
The statute of limitations for the action will normally be 5 years, counted from
that the obligation becomes enforceable. Articles 2514 and 2515.

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 However, the resolutory condition that emanates from the Forfeiture Agreement established in a
sales contract for non-payment of the price. The special rule of article 1880 applies.
That is, it prescribes within the period set by the parties if it does not exceed four years.
period that is counted from the celebration of the contract, This prescription period being
a short-term prescription is not suspended (2524).
So: 0+++dsf ghjkl0
For the study of the rules of the resolutory action prescription, first of all,
we must distinguish whether it is the resolutory action that emanates from:
1. The tacit resolutory condition or.
2. Of the comissory pact.

1. It stems from the Tacit Resolutory Condition: It has no special rules and is governed by
the general rules of prescription.
This is:
• It prescribes in 5 years, counted from when the breached obligation became enforceable. (art
2515).
• It is suspended in favor of the persons listed in article 2509 (except for the
pending inheritance article 2520) with a limit of 10 years.

2. If the resolving action stems from the commissory agreement:

• The action is statute-barred in 4 years, counted from the date of the signing of the contract,
without prejudice to the right of the parties to set a shorter period (but never greater
art. 1880).2
• It is a prescription for a short time, therefore it is not suspended (art 2524).

It can be a movable or immovable action.

This by virtue of what is provided in article 580. The importance of determining the nature
legal action, it is for the determination of the competent court whenever the place of
Payment determines the jurisdiction of the courts that must hear the actions that the creditor
table for the satisfaction of your credit.

The matter is resolved by the organic code of courts:

• Real estate action: article 135 of the COT. The judge is competent if the parties have agreed.
agreed at the convention. In the absence of agreement, the following will be competent:
a. The judge of the place where the obligation was contracted.
b. The Judge of the place where the claimed species is located.
• Movable action: The Civil Code applies and the judge of the place will be competent.

2This is heavily criticized in doctrine, because if the breach occurs after 4 years since

that the contract was celebrated, the resolutory action stemming from the commisor pact would be prescribed even before
of being born. And on the other hand, what is stated in article 1880 would be a barren provision, because the article
1878, in relation to 1873, leaves the creditor the exercise of the tacit resolutory action intact (special rule)
in the matter of Buying and Selling.

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 a. That the parties have agreed.
b. In the absence of an agreement regarding the domicile of the defendant.

It is a divisible action.
The divisible or indivisible nature of the resolutory action is widely discussed. Thus,
The argument for those who point out that the action is divisible is that, according to the provisions
in article 1690, the obligation can be valid for some and request the resolution of
contract by others, such as if a seller. Is obligated to deliver 10 boxes of
whiskey but never delivers it, buyers can request either the resolution of the contract
or forced compliance without any problem.
For others, the Resolutory Action is objectively and subjectively indivisible.
objectively indivisible every time they point out that the creditor cannot demand part of the
compliance and in part the resolution And subjectively indivisible, stating that if they are
Several creditors according to 1526 number 6. They must act in common agreement.
The matter lies in the object of the obligation. If the object of the obligation is divisible.
and there are several creditors, there is no impediment for some to demand compliance
forced and others demand the resolution, the law in article 1690 allows that a contract
valid for some and null for others when 2 or more people have contracted with a
third. It is illogical to think that when the object of the obligation is divisible (e.g., a sum
of money) the creditors must act together to obtain its fulfillment.

Object of the Resolutory Action

Declare void the breached contract by the other party. What consequently renders void
the obligations that arise from it, which allows him to request the return of what was given or paid
by virtue of them.

Active Subject: The diligent contractor who has fulfilled their obligation or who is readily available.
to fulfill it and against the delinquent contractor (passive subject).

We know that the termination of the contract affects third parties in bad faith.3, in the sense that the
the contractor who has obtained in the lawsuit can reclaim the thing from the hands of third parties. For
example. If Pedro sells a car to Juan, and Juan sells it to Diego, who was in a bad mood.
Indeed, the resolution of the contract between Pedro and Juan gives Pedro the right to reclaim it from Diego.

Then it is the vindicatory action, a real action that arises from the right of ownership, that
grants the owner (Pedro) who is now the owner not the possessor, the power to recover the thing from

3 Unlike the nullity that provides a reivindicatory action against third-party possessors without distinguishing whether it
they are found in good or bad faith article 1689.

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third-party hands (Diego) when found in bad faith, not the resolving action, which only
it is effective against the one who contracted with the owner of the thing (Juan).

So, we have that the owner of the thing, the seller4who was breached by the
contract, the breach of which gives rise to its personal action, the resolutory action, has along with it
with that, a real action, which is the reclaiming action. This is because both the action
reivindicatory, or any real action, for it to have legal effect against third parties is a requirement
that the ruling issued against the resolution is enforceable against it, which is why both the
personal action (resolutory action) and real action (reivindicatory action) must be brought forward.
jointly.

If we refer to Article 3 of the Civil Code, we will find that court rulings
they have no binding force except in the cases in which they are currently pronounced, and the action of
res judicata that arises from a final judgment cannot affect those who were not litigants
in that legal proceeding5.

The above is extracted from the provisions of article 18.6of the Code of Civil Procedure, which
dice

In the same trial, they may intervene as plaintiffs or

several people are summoned as long as the same action is deduced,
or actions that arise directly and immediately from the same fact...

Resolution and nullity of a contract.

The action for annulment and the action for resolution are very different. There is annulment when there is a
original defect in the contract, such as an illegal object, an illegal cause, defects of the
consent, etc. In contrast, the resolution action derives from the fact that in a
bilateral contract one party does not fulfill what was agreed.

Resolution and rescission.

They are two absolutely distinct institutions. The resolution we already know, proceeds.
when in a bilateral contract one of the parties does not fulfill its obligations. The
rescission, on the other hand, is a way to extinguish obligations that occur when
the parties, being able to freely dispose of their own and by virtue of the principle of the
the autonomy of the will agree to void the contract from which the obligation arises.

Effects of the resolutive action.

4The code tells us that the resolution action applies to the sale according to article 1873, to the exchange, which
It is governed by the provisions for the sale and therefore the 1873 law applies, and the retro-sale agreement of 1882.
5The judgment rendered in a trial does not harm those who are not parties to it.
has not been part of it.
6That is in Title III (of the plurality of actions or parties) of book 1 (Common provisions for all)

procedure).

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To study the effects, we must distinguish the effect between the parts and the effect.
regarding third parties.
Effects of the resolutory action between the parties: They revert the parties to the state
prior to the celebration of the contract, leaving it as if they had never contracted.
Once the resolutory condition has been fulfilled, the conditional debtor must return what they had.
acquired under that condition. Like for example María, take this house in ownership until
that Pedro passes his graduation exam. Opportunity in which the ownership of the house will pass
to him. Thus disposes the first part of article 1487, which is of general scope, that is,
applies to any type of resolutory condition (ordinary, tacit, and committal agreement).

Article 1487. Once the resolutory condition has been fulfilled, it must
to return what has been received under such
condition...

Let us remember that the conditional debtor, as a general rule, does not return the fruits received.
in the intervening time (1488); What restores the thing in which it is found with its increases and
improvements and the creditor suffering the fortuitous deteriorations that the species may have experienced, not so
the culprits of which the debtor is indeed responsible (1486).

If the buyer has partially fulfilled their obligation, they must be reimbursed for that part.
I would have paid because otherwise there would be enrichment without cause. (1875, paragraph 2).

Effects of the resolution regarding third parties.

To visualize what the effects of the resolution are concerning third parties, we must ask ourselves
Why would the resolution of a contract affect third parties? And the answer is obvious: it will affect
third parties when the one who owes something under a resolutory condition, while the condition is pending
it alienated or encumbered it with any real right (Article 1491 is not exhaustive but exemplary, not
it only applies to the mortgage, cessio or servitude, it also applies to the usufruct, the trust, the use
and room)

By virtue of the retroactive effect of the resolution. It must be understood that the debtor
conditional never owned the thing. Therefore, the alienation or the encumbrance fell upon
foreign property. Alienation or encumbrance is unenforceable against the true owner. The previous rule is not
absolute. Since it would cause harm to third parties who may have contracted with the
good faith conditional debtor unaware of the existence of the condition. In other words,
Professor, we must distinguish whether the third party was acting in good or bad faith and the treatment.
The legal framework is found in articles 1490 for movable property and 1491 for immovable property.

Let's see...

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Article 1490:
Point out the norm:

Art. 1490. If the one who owes a movable thing7on credit, or under
suspensive or resolutory condition, it alienates, there will not be
right to reclaim it against third-party possessors of
good faith.

Criticism of article 1490:

The article states that one owes a movable thing, having to say whether one possesses a movable thing, since
pending the condition, it cannot be said that the thing is due, this will only be true when the
the condition has been met.

The provision is set out in 3 assumptions. Namely:

That a thing is due at a set time.

2. That a due thing is had, under a suspensive condition and;
3. That a thing is held under a resolutory condition.

1) If something is due on a deadline, that has no relation to the resolution.

because the one who owes something on credit is not the owner, but the usufructuary (1087.1º).
Therefore, what they would be doing is relinquishing their right of usufruct and not the thing.
the same (793). Therefore, if the thing is burdened or alienated, Article 1490 does not apply.
except for the general provisions on the alienation or encumbrance of someone else's property. It is
Such alienations or encumbrances are unenforceable against the true owner. Without
import whether the third party is acting in good or bad faith.
The second assumption is: if I owe something under a suspensive condition, I transfer it.
or the serious one. That is impossible because no one can own something that is subject to
suspensive condition. If he has the thing and his possession is conditional, he will be a debtor.
resolutory condition, but never suspensive. Let's remember that the condition
suspensive is one that, while it is not fulfilled, suspends the acquisition of a
law (1479).

So that the alienation or encumbrance of a movable thing owed under a resolutory condition affects
to third parties. Two requirements must be met:

That the conditional debtor has alienated or encumbered it;

7It refers to both corporeal and incorporeal things (rights).

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 2. That the third party is acting in bad faith8.

Article 1491:

Indicate the norm:

Art. 1491. If the one who owes a property under condition ...
alienates it, or encumbers it with a mortgage, lien, or easement, does not
will be able to to resolve the alienation or encumbrance, but only when
the condition was stated in the respective title, registered or
granted by public deed.

When is the condition understood to be stated in the title?

It is obvious that, if we talk about the ordinary resolutory condition or the commisor agreement, they do exist.
in the title, since otherwise they would not exist in the act or contract as long as the parties
they incorporate them through special clauses.

We find the problem in the tacit resolutory condition. Precisely because of not
being expressed in the act or contract cannot be included in the title. This occurs when examining
the titles of the properties. We are faced with the assumption of 'that there are pending obligations'
Well, if there are any, the buyer of the thing will be exposed to having their right resolved. If the debtor
does not fulfill the obligation, for example, if the one who intends to sell, at the time of buying the
the property remained with an outstanding balance of the price, that seller must be required to prove with the
corresponding cancellation deed of price balance for which there are no obligations
pending, under which, the contract may be resolved.

What is the respective title?

The one by virtue of which the thing was acquired. The person who now intends to transfer or encumber it,
for example, Pedro wants to sell his house to Juan. The respective title will be one under which Pedro or
Some of Pedro's ancestors (in case Pedro is the heir) acquired the house.

The law does not require that the condition must be registered. What is written is the title, not
the condition.

Some authors attribute the drafting of Article 1491 to a historical factor, since
The real estate conservator began operating in the year 1859. And in the interim period between

8What I knew was that this right was subject to extinguishing upon the fulfillment of a condition.

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that the Civil Code came into force and that the real estate conservators began to operate. Only
public deed titles could be discussed (697).

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 EFFECTS OF OBLIGATIONS
(Contractual liability).

To understand what the effects of obligations are, we need to visualize the

legal structure of the obligation, that is, the legal bond that exists between the debtor and the
creditor
Let us remember that the debtor, by virtue of the contract (for the study of the
contractual liability, or the effects of obligations) is in the necessity
legal obligation to give, do, or not do something in favor of the creditor. Therefore, the debtor complies.
with its obligation, giving, doing or not doing what it obligated itself to.
To give, to do or not to do that to which one is obliged is found in the phase of
execution of the contract.

Here we distinguish between compliance and non-compliance.

• In the face of compliance, we are facing the normal effect of obligations, when
the obligation is fulfilled it is extinguished, and it is here where the study takes place
of the ways to extinguish obligations. And first of all, of payment which is the
compliance with the due performance (1568).
• In the event of non-compliance, which can be total, partial, definitive, or temporary. 1, the
The creditor is empowered to compel their debtor to comply.

In the event of non-compliance, the creditor has rights:

• Main
• Secondary and;
• Assistants2.

1. Among the main ones, we find the forced compliance with the obligation to
to give, to do and not to do.
2. In the secondary, we find the right to seek compensation for damages.3.
Which can be a compensation for damages of a compensatory nature or for
compensate for the late damages caused by the delay of the
compliance.
3. Regarding the auxiliary rights of the creditor, we study institutions.
like the:
• Conservative measures
§ The custody and placement of seals.
§ Solemn inventory.
§ Legal right of retention.
• Precautionary measures (whether prejudicial or not)

1Thematter is binary, the obligation is fulfilled exactly, fully, and timely, or it is unfulfilled.
2Theyare known as the auxiliary rights of the creditor.
3Compensation for damages includes the actual damage and the lost profits, as stated in article 1556.

What about moral damage? The code did not exclude it or prohibit requesting it in a contractual context.

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 • Oblique action.
• Pauline action
• Benefit of separation of assets.

Among the effects of obligations is the compensation for damages caused by it.
one might well ask as: contractual responsibility.

The code addresses the effects of obligations starting from article 1545, even the
artículoS 1.545 1.54641.5475

Andrés Bello focused on the issue as what can the creditor do in the face of
Breach of contract? And the answer is, you have 2 options (Both with compensation
of damages)
Request the Resolution of the contract
2. Request for Forced Compliance

Our starting point will be article 1,489, which involves the resolutory condition.
tacit. And it tells us what happens when a debtor fails to fulfill an obligation. In every contract
bilateral and wrapped6the tacit resolutory condition...

We are facing a contractual breach

What is the problem?
That many fall into the mistake of believing that what is said in 1.489 emanates from the condition.
tacit resolution.

But, if the parties eliminate the tacit resolutory condition, and the debtor defaults,
So the creditor cannot demand forced compliance?
The resolution effectively stems from the tacit resolutory condition. But the
the right to request enforced compliance stems from the right to general guarantee. art 2.465.
If we remove the tacit resolutory condition from a contract, all we are
eliminating is the right to request the resolution.
Since unilateral contracts cannot incorporate the condition
tacit resolution, the only path the creditor has is forced execution. And if
we want that in a unilateral contract, the creditor has the possibility to request the
resolution, a forfeiture agreement should be incorporated which is precisely the condition
tacit resolution but expressed in the contract.
The right of general guarantee is an institution of public order, it cannot be
remove from the contract.
4Good faith in contracts, therefore, if it was caused, it is fair that compensation should be paid if this is duly...
proven in trial.
5The degree of fault, which should be contrasted with article 44, refers more to the effect of contracts.
6Element of nature. The parts can eliminate it.

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 The compensation for damages is grounded in the principle of
responsibility and it cannot be eliminated because telling the debtor to do whatever they want
it should not respond, implies an early waiver of fraud according to article 1465
It has an illicit object.
.
THE FORCED COMPLIANCE WITH THE OBLIGATION

Forced compliance arises from the right of general guarantee, which is the right
what the creditor has to pursue the present or future, attachable estate of
creditor.

The right of general guarantee gives rise to 3 legal institutions.

• Forced compliance.
• Priority of credits.
• Auxiliary Rights of the Creditor.

There is a sector of the doctrine that says that the right of general pledge would be more
well a right of general guarantee, since the pledge is a security that falls on
movable property and this right also includes real estate. It is worth noting that the right
The general warranty comes from Roman law, for whom the word pledge was synonymous.
of guarantee, in continental law the concept was restricted to refer to guarantees
that only relate to movable property leaving the mortgage for real estate but
Nowadays it is better to call it general guarantee right.

The right to claim compensation for damages stems from the principle of
responsibility. Therefore: If we remove the tacit resolutory condition, the
the creditor may only request enforced compliance with the corresponding indemnification of
damages, but not the termination of the contract.

In the unilateral contract, there is no tacit resolution condition, so there is nothing left for him.
forced compliance. And if it is expressed in the contract that the failure to pay the
The price in the sale and purchase that causes the resolution of the contract is called a commisso pact.

The right of general pledge cannot be eliminated from the contract because it is of order
public, it can be lessened to see from what moment one is responsible, slight, very slight
etc…

Eliminating it would be condoning future wrongdoing.

Forced compliance cannot be eliminated either.

This is purely contractual. Because in extracontractual, resolution as an institution

it does not exist because we are talking about a contract that needs to be resolved.

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 As already pointed out, forced compliance stems from the right of guarantee (or
general lien) generally, briefly, this right of general lien is a right that has
to every creditor, every time an obligation is incurred, whatever its source is (1437)
the creditor will have as support, the right of general guarantee (the assets
attachable by the debtor.

The right of general pledge gives rise to 3 legal institutions.

Forced compliance.
2. The priority of credits.
3. The auxiliary rights of the creditor.

This right of general guarantee is irrevocable, it is not subject to autonomy.

will, nor can it be modified by agreement of the parties.
For the Romans, pledge = guarantee.

How to request the forced compliance of the obligation

For this, we have to distinguish between obligations to give, to do, and not to do, the
the solution is different for each case

OBLIGATION TO GIVE: The code does not provide any specific article for the obligation.
to give and one must apply the general rules. Therefore, forced compliance must be
to demand procedurally and when the obligation cannot be fulfilled only then,
supplementarily, compensatory indemnity is requested, which is the one that replaces the
object of the obligation. You cannot deliver the horse to me, so pay me the value of the
horse
In an obligation to give, compensation cannot be claimed.
immediately. If Pedro owes me a horse, I cannot say "I no longer want the horse."
better pay me the horse." One must first demand the fulfillment of the obligation and if not
it can be fulfilled with her (because the horse was eaten for example) there it is demanded
compensation for damages.
The above, in practice, is requested in the same writing of the claim, in subsidiary.
the main thing (the horse), compensatory indemnity (the price of the horse).
All of this culminates in the possibility of initiating an executive judgment of the obligation of
to give, having as executive title, the judgment of the declarative trial.
Because there comes a point where the person does not want to comply, they refuse to comply, and one
it already has the means to demonstrate to the court that the obligation objectively exists and that
this was not fulfilled and that is what the ruling that serves as a title reports
executive with which execution can be initiated directly and there it will be requested through the
embargo that fulfills the obligation. The same asset that is owed can be seized.
to be delivered in kind, or it can also be requested that other assets be seized
for them to be sold at public auction and to pay the equivalent of the obligation
due. Of which we are not going to talk about here because it is a matter of procedural.

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OBLIGATION TO DO: Here there is an article and the code provides specific rules, 1.553.
To understand better, we will provide an example:
I hire a landscaping company to come mow the grass in my yard.
parcel
For the purposes of the example, the company did not come to do the work.

In the event of noncompliance with this obligation, the creditor can request it judicially.
along with the compensation for damages... any of these 3 things at your discretion:
At their discretion!!! This means that the creditor chooses what else they want to request in addition to the
compensation for damages, the 1 the 2 or the 3.
Let the debtor be urged to execute the agreed act.
That they be punished with arrest for up to 15 days or a proportional fine (art 543)
cpc).
2. That he be authorized to have executed by a third party at the expense of
debtor.
3. That the debtor indemnifies for the damages resulting from the infringement of the
contract.

In number 2, If the act were the signing of a contract, for example the
fulfillment of a promise. I ask the Judge to sign on behalf of the one who obliged.
Regarding number 3, why is it repeated... if indemnification was already mentioned in the heading?
how is it explained?
They are different compensations. The compensation in the heading is called
The moratorium compensation, that of number 3, is called compensatory compensation.
The interesting thing is that these 3 numbers are chosen by the creditor at their discretion, they
You can take number 3 immediately because it is mandatory to do.
In the obligations to do, the compensatory indemnification can be requested.
immediately by express text, to the contrary of what happens in the obligation to give
as it was seen.

OBLIGATIONS NOT TO DO: I rented this house, and within the contract of
In the lease, there are 2 clauses:
In one of them, I am told that I cannot empty the pool for any reason.
2. In the other, I am prevented from cutting and pruning the pine.

The pine tree bored me, the water was green, and I am failing to meet my obligations.
From 1.555 it is deduced that it is necessary to distinguish between:
a. If the action can be undone or
b. if the fact cannot be undone.

The fact cannot be undone: In the impossibility of undoing, it is requested the

damages compensation. Obvious... what else is there to do.
What compensation?

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 Compensatory and default interest since the obligation to refrain was breached.
●The act can be undone: The creditor can request that what has been done be undone. And what if
the debtor refuses?... The obligation not to do becomes the obligation to
make and apply article 1553 again, they are going to urge me to fill it out,
or they are going to ask for the act to be carried out by a third party.

THE RESOLUTION

The resolution is the consequence of the resolutory condition. The 3 types of condition.
resolutory produce resolution (ordinary, tacit, and commissary agreement).
We will see the resolution that has as its source "the non-compliance", which are:
The tacit resolutory condition and
The commisory pact.

CONCEPT: It is the effect of the fulfilled resolutory condition.

CHARACTERISTICS:
It will occur once the resolutory condition is fulfilled.
Remember that the condition can be found in 3 states: pending, fulfilled, and
failed.
2. It is a way of extinguishing (art 1,567).
3. It affects the contract (the contract is the one that becomes void, not the obligation) and by
Obligations are extinguished as they lack a source.
4. The resolution only applies to contracts of instantaneous execution, in those of
In successive proceedings, we talk about termination (which operates with retroactive effect).
5. Due to being associated with breach of contract, it emanates from it the 'action'
resolutory

Requirements for the origin of the resolution:

• That there is a breach (total or partial, it doesn't matter).
• It must be claimed and declared judicially (through the resolution action).
Except for the qualified comisory pact, which operates by law.
• Whoever requests it must have complied or be ready to comply.

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 Assumptions of accountability.

For the compensation for damages due to contractual liability to be

there must be a breach of the obligation, that breach has
that is attributable to the debtor, in other words, does not benefit from any cause of
culpability, fortuitous case does not assist him, force majeure does not assist him. There has to be
It was a requirement for the delay, and of course, there is no compensation if there is nothing to leave.
unharmed, there is no compensation if there is no damage, if there is no harm. That is to say:
1. The attributable non-compliance.
2. The delay is admissible and the
3. Damage.

As we already know, non-compliance can be total, partial, temporary or

definitive. But that is irrelevant, because even the simple delay, constitutes a
breach of obligation.
The breach must arise from an act of the debtor, whether the debtor has...
acted with guilt1or with intent2he is the author of the damages that occurred and so he is
forced to fix them.

Within the assumptions3in imputability we find concepts such as:

The fortuitous event.
2. Force majeure
3. The guilt.
4. The deceit.
5. If the contracting parties have established any modifying clause of
responsibility.
6. Theory of unforeseen circumstances
7. Theory of Risks

The fortuitous case

Definition: it is the unforeseen event that cannot be resisted (art 45).

The code jointly defines fortuitous events and force majeure, as if they were
the same, it gives them identical treatment. It is the doctrine that distinguishes the unforeseen event from
the force majeure, noting that the former would stem from a man-made event and the

1When we talk about guilt, we refer to carelessness, negligence, or recklessness.

2That is to say, the debtor acted with the positive intention of inflicting harm on another person or their property. They acted

to cause him harm.

3
A supposition is that matter which is not expressed in the proposition, but serves as a foundation for the
truth of her. In this case: Assumptions of accountability seeks to determine, in what way we
We definitively determine the truth about the accusation of default made against the debtor.

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seconds of a natural event, however, the code within the examples that
It mentions that the earthquake is a natural fact.
If you look, you will see that some authors attribute the fortuitous case to the fact of nature,
others that are the other way around. It is very important not to dwell on this.

How is the fortuitous event configured: Or in other words, when will we be

in the face of a fortuitous event.
The fact must be.
• Alien to the will of the debtor.
• Unpredictable and;
• Unbeatable.

Let's develop to see what each of these things that we just

to point out.
First, the event must be unrelated to the will of the debtor. For this reason, the fortuitous event
what happens because of the debtor like the horse that dies of hypothermia because it does not
They brought him in, or what occurs during the debtor's delay does not exempt him from responsibility.

Secondly, we have that the fact must be unpredictable. That is, that ordinarily there is.
it has been impossible to foresee its occurrence. The road closure in winter where usually
The snowfall is predictable, but the prolonged exceptional snowfall is unpredictable.

Third, we must have that the fact must be insurmountable, the fact has imposed on the debtor a
obstacle that was impossible for him to face. If it only makes it more burdensome the
Compliance then there is no fortuitous event but we go to the theory of unforeseen circumstances.

What are the effects of fortuitous events?4

In principle, it exempts the debtor from liability. That is the general rule. And it is the great
effect of the fortuitous case "that exempts the debtor from liability." But be careful, in principle.
Because if the debtor comes and claims force majeure when they have already been in default or if
The fortuitous event occurred due to his fault, so he is responsible, and the fortuitous event does not exempt him.
On responsibility, Article 1547 in its second paragraph tells us, let's read it to see what it says.
it says the legal karaoke.
• The debtor may argue that they were indeed in default but that the default occurred
also due to unforeseen circumstances, For example: because the road was closed,
because there were barricades and stones, then a person arrived with a shotgun that
He tells me: sir please get down or I'll blow your head off, I got down and they robbed me.
truck. What does 1558 tell us in its second paragraph? Let's read it. Legal karaoke,
in his/her house.

4So
in our study structure we have the definition, how the fortuitous case is configured and now
What are the effects of force majeure.

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 • When we speak of the species or certain body, we refer to article 1567 number
Regarding the loss of the owed thing, the code recognizes that it is a way of
to extinguish the obligation, of course when the loss has been accidental.
• It tells us in 1674 that the debtor is obliged to prove the fortuitous event they allege.
• If by fortuitous case the execution of the due work became absolutely impossible.
The defendant in the Executive proceedings may raise as an exception the
The impossibility of execution is stated in article 534 of the procedural code.
civil.

So professor, we have that there are various events that can shape the case.
fortuitous and the effects that this produces according to the code. So what is it that I have to
What to do? I have to take some examples that are indicated in the code like the ones
that we already mentioned and present it to the teacher, and I am not going to tell them all, but
he indicated that the effects of force majeure include, among others, the following, he mentioned some
effects and I shut up.

We have just pointed out different cases in which force majeure does not exempt from responsibility.
debtor.
So, in summary and being more specific, we are specifically pointing out when.
the debtor is liable for force majeure.
First of all, and as always, in accordance with the provisions of the principle of
autonomy of will: When this has been agreed upon. What does article 1673 tell us?
let's go to the legal karaoke.
2. When it occurs due to the fault of the debtor (the horse that dies from hypothermia
because they didn't save it.
3. When it occurs during the debtor's default. There would also be no fortuitous event here.
in strict rigor. Because there was first a delay, then a fortuitous case. And in the
Obligations arising from the contract are presumed to be culpable in case of non-compliance.
If the thing perishes due to fortuitous circumstances during the debtor's delay, they owe its price.
(Compensatory indemnity, or performance by equivalence) plus the
moratorium compensation. Let's go to 1674 with the legal karaoke, the debtor who claims
The fortuitous event must be proven, let's see who told us, Andrés.

4. When it has been the law itself that imposed that the debtor takes responsibility even in the case
fortuitous or of greater force. e.g. Art. 1676, the thing that perishes in the hands of the unjust
detentor. has no right to use a cause of insanity because
suffers from a vice of origin which is violence as in the convention
constituent.

Perfect when it was agreed due to the debtor's fault and during the debtor's delay, and when
thus provided the law 4 cases

How to prove the case of fortuitous event.

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 • First, fix the generalissimo and you're with the one that they have to get a tattoo with:
It is up to the one alleging these obligations or their extinguishment to prove them (art.
1698 in relation to 1547.3º). In addition to this, the debtor is obliged to
to prove the fortuitous event that is claimed is indicated to us by Article 1674, in summary...
The proof of force majeure corresponds to the one who alleges it.

We're getting into the thick of it now, let's see what happens with guilt.

Definition: It is the lack of diligence or care in the fulfillment of an obligation or in the

execution of any fact.

Contractual and extracontractual liability.

The blame is only one, but the circumstances in which the effects occur are
produce, determining that it is governed by the rules regulating contractual liability or
extracontractual (also called tortious or aquilian)
• Contractual: It affects the fulfillment of obligations. It implies a relationship
Prior legal, a pre-existing obligation that the debtor did not fulfill, he fulfilled it at
media or fulfilled late due to neglect or negligence.
• Extracontractual: It implies that there is no prior legal vínculo, so the
obligation arises from the commission of a culpable act. It is the source of crimes and
quasi-civil delicts.

What are the differences between these 2 species of guilt?

The existence or non-existence of a prior legal link.
2. Only contractual fault allows for gradations (serious, minor, or very light). The fault to
dry is minor guilt.
3. Contractual liability with mere non-fulfillment, total, partial, or delayed fulfillment.
it is presumed, and it is up to the debtor to prove that he was careful and diligent in as much as
The extracontractual must be proven, and it is up to the creditor to prove that the debtor
turned with carelessness or negligence.

Quasi-contractual obligations and legal obligations.

We know that the law regulates contractual liability arising from a contract art
1547, these rules of liability apply to quasi-contractual obligations and
legal.

Contractual Liability
Our code makes a tripartite division of blame. Serious, minor, very minor.
Article 44 tells us that the:
serious fault, it is major neglect, the utmost negligence, the abandonment is so great that
This kind of guilt is similar to willful misconduct, to the desire to cause harm.
Serious or gross fault imposes a minimum level of responsibility on the debtor, who is liable for
this class of fault must employ the minimum of diligence. But if he didn't even put in the minimum
Your conduct is considered malicious.

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They say that in order to take care of a dog, I am only responsible for serious guilt, so I don’t have to be so...
Take care of the dog. Make sure it doesn't go out on the street, give it water, give it food, I take it for a walk and that's it.
Slight fault, slight carelessness, slight negligence: It is the normal person, not a hero nor a...
villain, this is the general rule and implies that when it is not indicated what type of fault must
to employ oneself, refers to minor fault. It is the lack of care that men employ
ordinarily in one's own business (art 44). Those who are responsible for slight negligence must
to employ a zeal, a care, a diligence, a moderate diligence. The law sets forth
example of the middle manager, the one who must run a business like a good father
of family, responds to this kind of guilt.
Slight fault or negligence: it is the lack of that careful diligence that a wise man
used in the management of important businesses. The one who is responsible for this
this kind of guilt must employ careful attention for the people who are
extremely careful, exemplary diligence. It imposes the maximum on the debtor
responsibility, understood as responding 'even for the slightest negligence' is that which in
important businesses employ diligent individuals.

What guilt does the debtor answer for?

For the determination of the law in Article 1547, it classifies contracts into 3 classes,
considering the benefit they report to the parties.
The debtor is liable for gross negligence in contracts that, by their nature,
they are only useful to the creditor. For example: the deposit only yields profit to the
creditor, and thus, article 2222 states that the debtor will be responsible only
for serious fault. Unless otherwise agreed.
2. The debtor is responsible for slight fault in contracts in which the debtor is
the only one that reports benefit. For example: in the loan for use, which is a contract
that only benefits the borrower (who is also the only obligated party) must be used
the utmost care in the preservation of the thing and is liable even for negligence
very light, as stated in article 2178.
3. The debtor is responsible for minor fault in contracts that are made for
mutual benefit of the parties. For example: in leasing, which yields a
reciprocal benefit for the parties, the debtor will employ in the preservation of the
what, the care of a good father of a family (1939-1979).

The proof of guilt

Article 1547.3 states that the burden of proof of diligence or care falls on the one who was supposed to.
to use it. That is, in contractual obligations, non-compliance is presumed.
culpable, even, article 1671, states that whenever the thing perishes in the possession of the
Debtor, it is presumed that it has been due to an act or fault of theirs, therefore it is sufficient for the creditor.
to believe in the existence of the obligation and it will be the debtor's responsibility to prove that the
the breach is not attributable to him, because he has exercised the diligence or care that
it corresponded according to the nature of the obligation in question as seen. (Here Al
Talking about things, we refer to species or a certain body since we already know that gender does not.

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 Amendatory liability clauses

The degree of fault for which the debtor is responsible is directly related to the
nature of the contract that is celebrated (1547).
Then, article 1558, which regulates the damages that must be compensated by the
debtor who breaches the obligation, states in its final section that the stipulations of the parties
they can modify these rules. The above means that the normal responsibility of
The debtor may be modified by law or by agreement of the parties.
Clauses that aggravate liability.
A debtor can be assigned a greater responsibility than what would correspond to them in
normal conditions.
It is lawful to stipulate that the debtor is liable for the fortuitous event (1673).
It can be established that the debtor is liable for a degree of fault different from that of
according to the law it corresponds by the nature of the contract. For example, article
2222 indicates that the parties may stipulate that the custodian is liable for everything
kind of guilt.
3. The parties may agree that the responsible party shall be liable for damages caused by a
a different form than that provided in 1558.
Specifically stated, the clauses aimed at encumbering have legal effectiveness.
debtor's responsibility.

Clauses that mitigate liability.

For the same reason, there is no barrier to agreeing on a responsibility lower than
debtor of which legally corresponds to him (1547.4º- 1558.3º). However, the stipulation that
the debtor is released from fraudulent non-execution, by virtue of the provisions of article 1465,
that states that neither Ale nor Article 1466 imposes an illegal object on the forgiveness of future deceit,
regarding article 1682 which states that the illegal object is sanctioned with absolute nullity.
Thus, the debtor's irresponsibility can only refer to minor and very minor liabilities.

Theory of unforeseen circumstances

When studying the causes of non-imputability of article 45 of the Civil Code, we learned that
the fact that constitutes it must be irresistible, insurmountable, and unpredictable, in such a way
that it becomes absolutely impossible to fulfill the obligation. But if the facts put to the
debtor in a situation where fulfilling the obligation becomes excessively burdensome
the fact that the debtor complying on time and in form causes them serious harm
to the creditor the question that arises is Do the courts have the authority to modify it
agreed upon by the parties? The answer to that question is what is referred to in doctrine
like the theory of unforeseen circumstances.

Requirements for the origin of unforeseen circumstances

The fact that disrupts the balance of the benefits must be unpredictable.
2. Unrelated to the will of the parties
3. It must seriously disturb the legal business.

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 4. Compliance must become considerably more burdensome.
5. Cause serious harm to the debtor
The contract must be of deferred execution

Where does the theory of unforeseen circumstances come from?

It arises as a mitigation measure of the rigor of article 1545. Reason why it

He argues that reviewing the contract would find a justification in article 1546 that us
He says that contracts must be executed in good faith. That good faith is reflected in the intention.
that each of the parties had at the time of the contract celebration, which cannot
to pretend that in the execution of the same one enriches oneself at the expense of the other. This
related to the article that illustrates to us that contracts must be interpreted according to the
intention of the parties, who have contracted with the understanding that the conditions
initials would not change in such a way that fulfilling the contract would imply an excessive
economic disbursement and beyond what is convenient for the contractor because if it is
thus, I clearly would not have hired. Another justification lies in the concept of abuse of
right, like that of someone who demands the strict compliance with the contract while ignoring
the current circumstances for compliance produce an imbalance that lies
produce an unfair effect.

Effects of unforeseen circumstances

The contract remains effective, granting the judge the authority to exempt the parties from the
future consequences of the act.
2. The review of the stipulations, to adapt it to the new conditions
unexpected.

We know that every legally entered contract is a law for the parties, and it cannot
to be invalidated except by mutual consent or for legal reasons (1545).
By virtue of the above, if the parties have not consented or some legal cause enables the
Non-compliance with the agreed terms obliges. For the theory of unforeseen circumstances to have
The legal framework indicates that a specific text is needed that addresses it.
consecrate.

Theory of risks

When we talk about 'the risks', we assume a danger. In what brings us together,
this risk is aimed at the danger that the thing has of perishing, due to an event and the
The question here is, who is responsible for that loss?
If the right is exercised over the thing, it creates a danger that threatens the thing.
it also threatens the law.

Assumptions to consider:
• That the thing at risk is the object of an obligation.

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 • The source of that obligation whose object is the thing at risk must be a
bilateral contract. The accidental loss of the thing in a unilateral contract extinguishes
the obligation. For example: the accidental loss of the thing deposited, pledged or
given in loan, extinguishes the obligation of the depositor, pledging creditor or
the borrower is obliged to return it. Or seen from the other side, the right of
depositor, of the pledgor and of the lender to claim the restitution of the
thing.
• The loss must be accidental.
If the loss arises from fault or malice during the debtor's default, the obligation
varies by object. The debtor now owes the price of the thing and the damages. If the thing
it perishes during the debtor's delay, but it is proven that it would have perished as well in
creditor's hands, only the consequential damages should be owed and not compensatory ones
(unless it has been agreed that they are liable for all damages article 1673). And if they allege
fortuitous loss, then it must be proven that it was fortuitous.
• It must be a specific species or body. The genus does not perish.
If the generic thing perishes, the debtor must deliver any individual of the genre.
of at least medium quality art 1509.
• If the thing perishes once received by the creditor and thus the obligation is extinguished.
The loss must be borne by the current owner. Things perish for their owner.

So we have.
That the thing is risk to be the object of the obligation
2. That it originates from a bilateral contract
3. The loss must be accidental
It must be a specific species or body.

The problem of risks in bilateral contracts.

We answer the question

Does the extinction of one obligation extinguish the reciprocal obligation?
As when the species or certain body perishes by fortuitous case before being delivered,

Is the price of that thing still owed?

To answer the previous question, we must analyze the following assumptions.
• If the reciprocal obligation also extinguishes, the risk is borne by the debtor. This
It means that the debtor lost both the thing and the money.
• But if the reciprocal obligation persists, the risk is borne by the creditor. This means
that the creditor cannot claim the delivery of the thing, but he must pay the money.

Creditor's risk
The risk of the certain body, whose delivery is due, is always the responsibility of the creditor. Art 1550.
Let us analyze. If there is a specific thing that is owed (by the debtor), and the specific thing perishes
(Accidental demise, as we know). The risk is assumed by the creditor, who is not.
released from his reciprocal obligation. Now he owes the money, without receiving anything in return. Unless

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As already mentioned, the debtor has been in default, or has committed to deliver.
the same thing to 2 or more people for different obligations. In that case, the risk is of the
debtor.
The above is reflected in the sales contract (art 1820), where it states that the risk of
the loss or deterioration of the thing is the responsibility of the buyer, since there is an agreement in the
thing and the price, who must pay the price, even if the thing has not yet been delivered.
Except if sold under suspensive condition. And the condition is fulfilled. Because there yes.
the thing perishes while the condition hangs, the loss is of the seller (and the deterioration or
Buyer's Improvement) Article 1820.

It seems unfair, doesn't it?

It happens that, in France, there is no duality of title-mode. In France, one becomes the owner.
With the title. There I become the owner when I buy. So if I am already the owner and the thing
I perish before they deliver it to me, of course it makes sense to them. Because in the end the
what perished for its owner.
Chile, even having duality of title mode. Where I become the owner with the tradition,
In terms of risks, it followed the same rule as France. And article 1550 tells us that the
risks of the body certain whose delivery must be "Always" the responsibility of the creditor (res
the creditor's rights.

Exceptions to the rule: the thing belongs to the creditor.

• The risks belong to the delinquent debtor
• And the debtor who has committed to deliver the same thing to 2 or more people under obligations.
different. It is a punishment for their bad faith.

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 COMPENSATION FOR DAMAGES.

Within the effects of obligations, we study what the rights of the creditor are.
for the non-compliance of the debtor. On one hand, the resolution or forced compliance, both with
compensation for damages.

What is compensation for damages?

We can study it from a dual perspective, on one hand, as the obligation that someone has who...
has caused damage to repair it, or like the right that the victim has, to be compensated
damage that was caused to him.

Definition: It is the obligation that any person who has caused a harm must repair it by means of payment.
from a sum of money. (from the perspective of the payer).
The right of someone who has suffered harm, so that it may be repaired through the payment of a sum.
of money. (from the point of view of the person receiving it).

Characteristics of compensation for damages.

1. It is an obligation to pay (It consists of paying a sum of money).
[Link] is sourced from eldaño.1.
[Link] is compatible with forced compliance and contract termination.
[Link] has a purely reparative and not punitive nature.

CHARACTERISTICS of the indemnity action2.

1. It is a patrimonial action.3.
Prescribed in 5 years by R.G. from the breach of contract.
[Link] extracontractual matters, it is 4 years counted from the perpetration of the fact.4.
4. It is a personal action.
5. It is a movable action. What is claimed is money. And money is movable, therefore, the action.
it's furniture.

CLASSES OF COMPENSATION
When we talk about compensation for damages, we distinguish between compensation

1There is no compensation without damage (unlike the penalty clause, which does not have damage as its antecedent,
but it is an early conventional assessment of the damage.
2What is the action through which damages are claimed.
3And because it is patrimonial, it is transferable, transmissible, renounceable, and subject to prescription.

4Article2332. This is a disputed term in doctrine. According to Arturo Alessandri, the four years run from
the commission of a willful or culpable act. In contrast, for Rodríguez Grez, 'to perpetrate' is synonymous with
to consummate, an act is consummated when all elements of the illicit are present, one of these elements
the damage, then, in the opinion of this author would only begin to run for 4 years once the damage is
to manifest, understanding another thing would imply assuming that the prescription begins to run before the
Right is born. It is a short-term prescription, so it is not suspended in favor of people.
enumerated in article 2509.

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 Compensatory - Moratorium.

COMPENSATORY: It is one that seeks to replace the object of the obligation (or compliance by
either compliance is requested, or compensatory indemnification is requested.
Let us remember that, in the obligations to give, compensatory compensation cannot be demanded.
you must demand fulfillment first, and when that is not possible, then proceed
compensatory indemnity. I can claim the moratorium indemnity along with the
compensation for loss.

MORATORIUM: It is what is due for the delay in compliance. For example, they told me that I...
They were supposed to deliver the car on the 20th, but they delivered it to me on the 5th of the following month; I had to rent for those 15 days.
a car. And that rent can be charged as compensation for delay. It is compatible with the
forced compliance with the obligation.

Requirements for compensation:

(o elements of contractual responsibility

You can ask in both ways.

1. The breach.
The damage
[Link]
[Link] debtor's default5.

1. THE NON-COMPLIANCE: To speak of non-compliance already positions us in contractual matters, and we talk about
a prior legal bond. If it were extracontractual, we would be talking about an unlawful act.
When has an obligation been breached?
The article that illustrates this to us is article 1556.
1. When the obligation is simply not fulfilled.
2. When there has been a delay in compliance.
Let's see an example.
Pedro has to deliver 5 sacks of flour on October 5th. But he didn't do it.
[Link] only delivered 2 bags of flour. The creditor is not obliged to accept payments.
partial or late submissions except in the case of the bankruptcy liquidation procedure.
[Link] appears with flour sacks, but in November.

It is always good to understand that a fulfilled or unfulfilled obligation, legally

Speaking is a binary situation. Either it is fulfilled or it is not, there are no middle terms. It does not exist.
I fulfilled one part. Obligations are fulfilled when the performance is fully satisfied.

5 In the obligations to give and to do, because in the obligations not to do, mere contravention suffices, it tells us the
1557.

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 Do not forget the payment requirements:
a)Exactly
b)Integral and
c)Opportune.

Which goes hand in hand with what Article 1556 describes for these purposes. Which says that the
Compensation for damages is applicable: If the obligation is not fulfilled, if it is fulfilled imperfectly or
late.
The compensation for damages is not systematized by the code, peck here peck there (hummingbird).

[Link] DAMAGE:
It is the detriment that a person experiences in their assets as a consequence of
breach of an obligation. This concept is restricted, it only refers to financial damage and in
contractual headquarters.

CLASSIFICATION OF DAMAGE:
• Heritage
• Moral.

[Link] damage:
• Definition: It comes from the Aquilian law, Aquilian damage, the price of pain, it is associated with pain.
of the soul.
• What extent does it have: It is said to encompass all kinds of negative emotions such as shame.
etc…
• How to prove moral damage: This is based on emotional aspects. With galvanic conduction,
with electroencephalogram ... Today it is even possible to test for a psychological injury.
• How it is assessed: It is subjective and determined by the Judge.

Moral damage cannot be repaired. More than compensatory, it is said to have a punitive function for those who
it caused.

In extracontractual matters, there is no doubt that moral damage is indeed compensated. Article 2329 states that
When there is a crime or quasi-crime, all damage must be compensated.
In contractual matters, the topic is at least debatable. Because article 1,556, when it says that
The creditor must be compensated for default, considering the actual damage and the lost profits.
Unemployed, moral damage does not apply there, because both are patrimonial. What happens is that the damage
moral should be incorporated into the contractual field, arguing that there is no norm that states
moral damage should not be compensated in contractual matters. Today it is accepted that moral damage if
is repaired.

[Link] DAMAGE
Definition: It is the damage suffered by a person in their assets as a consequence of the
non-compliance.
Property damage is subdivided according to the relationship that exists between the breach

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and the damage:

So we will have direct and indirect damages. Everything that follows is subjective regarding its
determination
Direct damages: These are those that have as their main reason the breach of the
obligation.

Direct damages: Considering whether it was possible to anticipate them or not. Thus we have then,
expected and unforeseen direct damages.
The anticipated ones: They are those that could have been anticipated with moderate intelligence.
The unforeseen events: They are surprising; even with moderate intelligence, they could not have been anticipated.

Obviously, on the contrary.

Indirect damages: These are those in which the breach is not the main reason.
The damages classified as indirect are not compensated, unless established.
it is expressly stated in the contract that they are indemnified.

Importance of the previous distinction. How they are compensated:

It also has to do with determining which ones are compensated and which ones are not.
• If there is only fault, direct damages that are foreseen are compensated.
• If there is intent, both the expected and unexpected are compensated.

You have to try it. That is the general rule. There are cases .where the damage is not proven.

• It is not tested in the case that what I am requesting as compensation are the interests, since
In that case, if only interest is claimed, it is not necessary to prove the damage due to the readjustment of money.
• When is compensation claimed for penalty clause. E.g. When the car is not returned on the due date.
rent. And a penalty clause must be paid for each day of delay.

EVALUATION OF DAMAGES.
You not only have to try it, but also evaluate it, and to be able to evaluate it, it is necessary to know.
how much does it amount to?

Ways to assess it
Judicial Assessment of Damages: That is, before the judge in the ruling. For this, the judge must
ponder: The emerging damage and the lost profits.
[Link] valuation. It is carried out through interests. For obvious reasons, it is only applicable in
monetary obligations.
[Link] appraisal: It is the one made by the parties.
It can be assessed: After the damage has occurred or at the time of the contract signing.
by means of a penalty clause. It not only serves to compensate for damages but also
its purpose is to 'motivate the debtor to comply.'

CRIMINAL RESPONSIBILITY: We refer to what was studied in the class on assumptions of assumptions

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accountability.

THE BLACKBERRY:

Poorly addressed in the code. We can find it in articles 1,551 1,552- 1,557.

Definition: It is the delay attributable to the debtor in fulfilling an obligation, which is

extends beyond the interpellation.
Not any delay constitutes default.

Requirements for the delay to constitute a default.

Delay attributable to fault or intent6.
2. That the debtor be required or summoned. The summons. There is no summons without default.
There may be simple delay.

What is interpellation?
The debtor's awareness that their delay causes harm to the creditor.

When the debtor is in default - When is he summoned 1.551

1. When the debtor has not fulfilled the obligation within the stipulated term7except
that the law in special cases requires the debtor to be summoned (judicially) to
to put him in default.
2. When the thing could not be given or executed except within a certain period of time
time, and the debtor has let it pass without giving or executing it; (the empanadas for the 18)
3. In other cases, when the debtor has been judicially summoned by the creditor.
It refers to any legal action filed by the creditor against the debtor due to
of the breach of the obligation.

To put the debtor in default, it is necessary for the demanding creditor to have complied.
with its part or whoever is able to fulfill it.

We see that the law distinguishes 3 types of request or interrogation:

Express contractual (1551 No. 1).
2. Tacit Contract (1551 No. 2).
3. Extracontractual (1553Nº3).

EFFECTS OF DELAY.
In the obligations to give and to do, it is necessary in order to claim compensation for damages.

6The delay caused by a fortuitous event does not give rise to compensation for damages. (1558.2º).
7Itis important that the debtor defaulted within the stipulated term, this implies a convention, an act
bilateral legal, if the term for fulfilling the obligation comes from the law or from a declaration
unilateral, as in the will, then there is no delay, because the rule requires that the term be breached.
stipulated.

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 In obligations not to do, mere breach is sufficient. Article 1557.
2. If it is a bilateral contract, and both parties fail to comply, the exception of non-performance of the contract applies.
1552.
3. In default, the debtor is liable for force majeure and unforeseen circumstances, unless proven otherwise.
the thing would have perished equally in the hands of the creditor.
Since the debtor is in default, they owe the fruits produced by the thing.

THE BLACKBERRY OF THE CREDITOR.

It is regulated in the code regarding the sales contract art. 1827.

I am a trader and I buy all the potatoes from a producer. I agree that he delivers them to me at my
house on the agreed day and time. But I was in a state of intoxication and did not receive him.
potatoes.

CONCEPT: It is the unjustified refusal of the creditor to accept a valid payment.

Effects of the Creditor's Default .

The creditor must compensate for all the damages caused.
2. By the mere ministry of the law, the debtor's responsibility is reduced from fault to serious fault.
[Link] this situation persists over time, the debtor is entitled to the institution of payment by
consignment

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 WAYS TO EXTINGUISH OBLIGATIONS:

When we talk about the ways to extinguish obligations.

Legal definition: Because there is no legal definition. We are talking about legal definition.

What are the ways to extinguish obligations?

They are both acts and legal actions that free the debtor from the owed obligation.
There is no strict legal definition; the code does not state: 'The ways to extinguish the
obligation is not only an indication of what can happen with an obligation.

Article 1567 CC. Any obligation can be extinguished by a convention in which the parties
interested parties, being able to freely dispose of their own, agree to give it for
null.
Obligations are also extinguished in whole or in part:
For the solution or effective payment;
2. By novation;
3. For the transaction;
4. For the referral;
5. For the compensation;
6. For the confusion;
7. For the loss of the thing that is owed;
8. By the declaration of nullity or by rescission;
9. For the occurrence of the resolutory condition;
10. By prescription.
The transaction and prescription will be addressed at the end of this Book; regarding the condition
The resolving issue has been addressed in the title "Of conditional obligations".

Although this article contains 10 numbered items, it actually contains 11 modes of

extinguish obligations, as in its first paragraph mentions rescission or mutual agreement
dissent.

This enumeration is in NO CASE exhaustive as there are other ways of

extinguish the obligations that are not listed in this article, thus we have:
The Payment by Assignment: It is an agreement that implies the consent of the parties and has
to extinguish an obligation with a performance different from that owed in its inception.
This means of extinguishing obligations consists of giving in payment a different thing.
of which must be done with the acceptance of the creditor. This is indicated by section 2 of Article 1,569:

The creditor cannot be obligated to receive anything other than what is owed to him, not even
under the pretext of being of equal or greater value than the one offered.

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 But... Mr. René Abeliuk tells us that one thing is that the creditor cannot be
forced to receive something else, but there would be no problem in voluntarily agreeing to receive
another thing, by virtue of the principle of autonomy of will. For example: the debtor
he owes the creditor the sum of $3 million, and they agree that the obligation will be extinguished if
the debtor pays with a car.
The assignment in payment implies fulfillment of the obligation in a way that is different from
the one that emerged from the source that gave it life. It is worth recalling here article 1437, which tells us
it says that obligations "Already arise"...

This way of extinguishing the obligation is equivalent to payment, as the debtor is released from
the obligation, and the creditor if not receiving exactly what is due, does satisfy their
credit. That is why it is said that the payment in kind replaces the payment. It is a fulfillment by
voluntary equivalence of the parties. Therefore, the payment in kind "is a convention, that
it assumes the consent of the parties and aims to extinguish an obligation with a
different provision than that due in its genesis.

The Extinctive Term in Successive Performance Contracts:

• Article 1950 No. 2. The lease of things expires in the same ways as others.
contracts, and especially: By the expiration of the stipulated time for the duration
of the rental;
• Article 2098. The partnership is dissolved by the expiration of the term.

The death of the debtor or creditor in contracts intuito persona:

• Thus, for example, we can point out:
• Article 2103, in the dissolution of the partnership by the death of any of the
partners, except by legal provision or contrary agreement.
• 2180, The borrower is obliged to return the lent item 'in the time
agreed upon" and in the absence of a convention after the use for which it has been provided.
But restitution may be required 'even before the stipulated time' in 3 cases, the
The first of them is the death of the borrower.
• 2163 No. 5, in the title of the end of the mandate; the mandate ends due to the
death of the principal or agent.

And in relation to the same mandate, resignation or revocation; as a way to extinguish the
mandate contract, article 2163 No. 3 and 4.

The impossibility of fulfilling an obligation to do something; for example, the singer.

a famous person who suffers from dysphonia and cannot perform the show, it is estimated that it equates to the loss
of the due thing in an obligation to give. Art 534 of the CPC.

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The eviction in the lease of movable property, eviction tells us the
code that means 'to notify in advance' article 1951.
Among others.

Classification of the Modes of Extinguishing Obligations:

We distinguish whether the mode extinguishes 'The source' of the obligation or the obligation itself.

Ways to extinguish the source of the obligation:

The rescission
The transaction
3. The nullity
4. The resolution and;
5. The extinguishing term.

Ways that extinguish the obligation itself:

The payment
2. The novation
3. Remission or forgiveness
Compensation
5. Confusion
6. Fortuitous loss of the spice or specific item due to
7. The conveyance in payment
8. Death in contracts of personal intent.
9. Impossibility in execution.
The statute of limitations extinguishes the action to demand compliance.

A second criterion addresses how the debtor's release occurs.

This can be:
Either the Payment or some Mode equivalent to the payment. Since there is a compliance with the
due performance.
Payment in kind:
2. Confusion.
Compensation
4. Novation.

• Oh, it can be a method that is not equivalent to payment:

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 1. The remission or forgiveness, or waiver of the debt.
2. The loss of the owed thing.
3. The prescription.

They are not equivalent to the payment, because there is no fulfillment of the provision.
due.
Let's study the ways to extinguish the rights specified in Article 1567.

RESCISSION or mutual consent. They are the same.

It has no legal definition, but it refers to mutual consent as a way of

extinguish obligations in arts. 1545 and 1567, and indirectly, in art. 728
purpose of cancellation. According to the heading of article 1567, the obligation may
to extinguish by a 'convention in which the interested parties, being able to dispose
freely of their own accord, they agree to declare it null.” It is not that the obligation suffers from
a vice of nullity, here we are faced with a fully valid obligation, but rather this
is rendered void by the mere consent of the parties. The law stated the expression 'to give it
for null" improperly, referring to the convention object of the rescission or
reciprocal descent. In the words of Professor Juan Andrés Orrego, it would have been more correct
to say that: termination is a convention in which the interested parties, being capable
to freely dispose of their own, they agree to invalidate a convention or
contract, extinguishing the pending obligations.

In general, all obligations can be nullified by mutual consent.

consent of the parties.
It is exceptionally not possible to rescind certain contracts or agreements, such as:

• The marriage contract;

• The substitute agreement of the marital regime, contemplated in Article 1723 of the Code
Civil, in general rule (it can be amended to agree on another property regime);
• The prenuptial agreements made prior to the marriage (once
the marriage celebrated can no longer be modified, except to agree on another regime
of goods);

Effects of the rescission.

We have to distinguish between the effects concerning third parties and the effects
regarding the parties.

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Firstly. Effects regarding third parties.
The termination only has effects for the future, concerning third parties. Not
affects the past, the effects of the contract that have already occurred and that have created rights for
third parties, those that cannot be altered or modified by the parties that are rescinding.
it resembles the extinction term in this and differs from the effects of nullity. This is because in the
rescission and in the extinguishing term, the rights established in favor of third parties over the
what is the object of the contract in the time between the celebration of the contract and its
resilience, subsist, here the will of the parties does not have the virtue, the capacity, the
legal capacity to destroy the rights of third parties. For example; if a contract is rescinded
purchase and sale of a property, the mortgage constituted by the buyer will not be seen
affected.
Effects between the parties.

The rescission has retroactive effect, as the will of the parties is precisely
remain in the state prior to the contract. Therefore, mutual obligations apply,
parts will be restored to the situation prior to the celebration of the contract. For example, if
if a purchase agreement regarding a property is rescinded, the buyer shall materially return the
building, the seller will refund the price and the current registration in favor of the
buyer, reviving that in favor of the seller (art. 728: "In order for possession to cease
registered, it is necessary for the registration to be canceled, either by the will of the parties, ...

SOLUTION OR CASH PAYMENT.

Definition: it has a legal definition, art. 1568:

Effective payment is the provision of what is owed.

Payment (from the Latin "pacare" meaning to appease) is understood as the delivery of a sum of money.
Legally, the one who pays is:

Give the due thing

2. Execute the promised fact or
3. Refrains from the prohibited act.
As a fundamental issue, payment presupposes an obligation intended to be extinguished.
otherwise it would lack cause, it would be a payment of what is not owed and there would be the right to repeat
the paid.
(The obligation that serves as the cause for payment can be civil or natural).

We are talking about the 'ways to extinguish the obligation' in the case of referring to
to the payment in particular, that includes the development that the code does in a way
complete in Article 1568 and following.

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 THE NOVATION

Definition (1628):
The novation is the replacement of a new obligation for a previous one, which remains
so extinguished.
A new obligation replaces the old one, which is extinguished, and for that reason, the novation
it is a way to extinguish obligations. But at the same time, a new one is created.
obligation, and for this reason article 1630 refers to the 'CONTRACT OF NOVATION'. Novation has
then a double legal nature, on one hand, is extinguishing and on the other, creator of
obligations (the same can be said about the transaction, although in this case, the
The code treats it as a contract, without prejudice to mentioning it in article 1567 number 3, to
enumerate the ways to extinguish obligations.

TRANSACTION

Definition: It is a contract aimed at preventing a potential lawsuit or ending one.

an existing one, making reciprocal concessions between the parties.

The Code considers it an act of pure will by the person, as expressly stated in Art.
2.456, 'Out of consideration for the person with whom one compromises' and for this reason Article 2.461 provides
that the transaction is not effective except between the contracting parties and consequently if there is
many interested parties, the favored one by one of them does not harm or benefit the others,
"except, however, the effects of the novation on solidarity" which is consented to by one of
The joint creditors affect the others.

THE REMISSION

Definition: The remission or forgiveness is the free waiver made by the creditor in favor of
of the debtor's right to demand payment of their credit.
Also: Debt remission is understood as the forgiveness or free abandonment of credit.
made by the creditor.

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 Free provision is essential, because otherwise we may be facing a donation.
in payment, a transaction or a novation, for example. Díez-Picazo refers to it in the
Under the name of waiver, our Civil Code knows those
cases in which the creditor expresses their intention to extinguish in whole or in part their
credit, without receiving anything in payment, nor in exchange. It then appears in the forgiveness.
clearly a release of the debtor without satisfaction of the creditor.

THE COMPENSATION
1655 to 1664.
Definition: (1655): "When 2 people are debtors to each other, a transaction occurs between them."
compensation that extinguishes both debts in the manner and under the circumstances that will be explained.

It is said that compensation is essentially a fictitious, double, and reciprocal payment.

It has great practical importance, as double payment is not justified in practice.

simplifying the fulfillment of the obligations that bind them reciprocally
parts, avoiding them the inconveniences and risks of a double payment. On the other hand, it is not
equitable that one party may compel the other to comply, without also complying.

THE CONFUSION
1665 to 1669
Definition: (1655): "When the qualities of creditor and debtor coincide in the same person."
The debtor verifies by law a confusion that extinguishes the debt and produces equals.
effects that the payment

Doctrinal definition: It is a way to extinguish obligations that proceeds through the merger.
in a person with the qualities of creditor and debtor of the same obligation.
The extinction of the obligation that arises from confusion comes from impossibility.
of execution of the creditor's right against himself.

Confusion also applies to real rights:

a. Art. 763, No. 6 (when the qualities of sole trustee are confused with those of sole
trustee);
b. Art. 806 (Extinction of the usufruct by consolidating with the ownership);
c. Art. 885, No. 3 (extinction of the easement "By confusion, that is, perfect union
and irrevocable of both properties in the hands of the same owner)

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d. Art. 2406 (the right of pledge ceases "when the ownership of the pledged thing
passes to the creditor for any title

LOSS OF THE THING THAT IS DUE

Articles 1670 to 1680.

Here the legal aphorism 'no one is obliged to the impossible' applies. If the
the performance object of the obligation becomes physically or legally impossible, the obligation is
extinguishes. This is a principle of a general nature, applicable to all kinds of obligations, already
to be given, to do or not to do.

But practically, the loss of the owed thing is a way of extinction peculiar to
the obligations to give a specific thing or a certain body, and in that context, the law regulates it.
The loss of the species or certain body makes it impossible to fulfill the
obligation that the debtor could only satisfy by giving precisely that object which no longer
It exists. By general rule, the genre does not perish, unless all perish.
individuals of the gender, in other words, it must be a limited gender. Art. 1510.

• We studied nullity in the legal act; you have all that material.
• We study the resolutory condition in relation to the effects of obligations.

EXTINCTIVE PRESCRIPTION
Definition (art. 2492): "It is a way of extinguishing the actions and rights of others, by not
having exercised such actions and rights, for a certain period of time, and
meeting the other legal requirements
The other legal requirements are the passage of time and the inactivity of the creditor.
Foundations of extinctive prescription.
The extinctive prescription implies, in practice, stripping the creditor of their actions.
that the legal system grants him the right to demand payment of the obligation from his debtor.

Due to the effect of prescription, an obligation that was civil transforms into a natural one.
Its compliance will now depend solely on the will of the debtor, since
this can no longer be compelled to comply.

They are mentioned to justify the loss of these shares:

1. The abandonment of the exercise of action by the creditor.
It would be a penalty for the creditor due to their inactivity.
3. The legal certainty that over time establishes a fact as a right.

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 The Payment

Definition: It has a legal definition, article 1568 tells us that the solution1the cash payment 'It is the
provision of what is owed.

Let us remember that the performance is the object of the obligation and is what is intended to be given.
to do or not to do, pays the one who owes:

• Giving,
• Doing or;
• Not doing what one is obliged to do.

Payment requirements

The one who pays is the owner of the thing paid.

2. That has the capacity to transfer.
3. That the legal formalities are observed.

Let's develop the payment requirements.

1. First, concerning the payer, they must own the thing being paid for. Let us remember that in
the obligation to give the payer is obliged to transfer the ownership of the thing or to establish
real rights over it. Right? And as no one can transfer more rights than the
What it has, the ownership of the thing could not be transferred if one is not the owner of it. We know.
that the sale of someone else's property is valid, but without prejudice to the rights of the true owner of
the thing with which it was paid, who could claim the recovery of the thing if it does not ratify
the sale.

How would that be?

Thus, imagine the owner of a bicycle with which an obligation was paid.
The owner arrives and asks himself...
-And my bicycle? (It was a triathlon bicycle, worth 10 million).
No... it's just that with your bicycle we paid Lucho for the meat and the beers.
Yes, the owner of that bicycle can claim the recovery of the bicycle.

And as we said, the holder has the authority to acquire the thing by prescription.
Note that here, if the one who pays is not the owner of the thing, but pays with it.
the owner's consent to the thing the payment is fully valid and transfers ownership.

1
Solution, from the Latin solvere, means 'to untie'; if the obligation is the legal bond, the payment implies its
disconnection, dissolve the bond.

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 This consent can be granted, authorized, or ratified (authorized in advance or to...
ratification that grants retroactive effect to the payment.
The same happens if the one who pays did not have dominion over the thing, but acquires it with
posteriority.
And if a fungible thing belonging to another is paid, and the creditor consumes it in good faith,
the payment is equally valid.

2. Regarding the capacity to transfer, it is as stated for the transferor who requires the ability.
I intend to transfer the domain.
The payment made by a person unable to dispose may come to be valid.

And when?
We know that if the payer is absolutely incapable, the act is flawed.
absolute nullity, if the one who pays is relatively incapable, the act suffers from relative nullity.
Absolute nullity is remedied by a statute of limitations of 10 years and relative nullity by
the prescription and by the ratification. Then, once the nullity is corrected, the payment is valid. And if payment is made
a fungible foreign thing and the creditor consumes it in good faith, the payment is still valid
even though the one who paid did not have the capacity to transfer ownership.

3. Regarding the observance of legal formalities, we know that the method of payment a
The obligation to give is fulfilled by making the tradition. And 679 tells us that, if the law requires the
special solemnities for alienation, ownership is not transferred without them.
The payment presupposes an obligation (civil or natural) intended to be extinguished; if there is none, the payment
lacks cause, then there is payment of what is not due, therefore, a quasi-contract would be produced
from the payment of what is not due and that payment would be subject to recovery.

Delving into the study of payment necessarily implies the need to respond
certain questions that we must handle, such as:

• Who can make the payment?

• Who, Where, and How should the payment be made?
• What are the rules for payment allocation?
• What is payment by consignment... and with Subrogation?
• What is payment with 'Competence Benefit'?

If we have the capacity to answer the previous questions, we can say that we know
the institution of payment.

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 Who can make the payment?

The debtor can pay, or anyone on behalf of the debtor.2Even without his knowledge
(this is the famous unofficial agent).

Of course, because in principle, the creditor only wants to be paid, from wherever it comes.
The payment is something he doesn't care about. This is supported by 1572, which tells us:

The creditor cannot refuse to accept payment, claiming that the person paying is not their debtor. Typical
Example of the young man who lends money to his girlfriend, the young lady. He never wants to see her again in his life and
he asks his dad to pay him. The young man cannot refuse and demand that the young lady come to do it for him.
I pay personally.

Is there any exception to the above?

Yes, professor, in obligations of doing with the character of intuito personae, it cannot be executed the
An act by another person against the will of the creditor is stated in article 1572, paragraph 2.

What are the legal effects of the payment made by the debtor?
What extinguishes the obligation. Ready.

Payment made by an interested person.

We have individuals interested in extinguishing the obligation. This may be the case for the guarantor or the co-debtor.
solidary or the third party holder of the mortgaged property. Here the payment extinguishes the legal bond between
creditor and debtor. But between the payer and the debtor, the legal bond persists.

To clarify this, we need to see who paid.

• Guarantor: Has action against the debtor to reimburse what was paid. 2370. And it
subrogation in the rights that the creditor had to whom he paid, we are facing a
species of legal subrogation. That is in article 16103(We will see it).
• Third holder of the mortgaged property: The provisions for the guarantor apply, tells us the
2429.2º.
• Guarantor: It also subrogates the creditor in its privileges and securities. But
Now the co-debtor cannot sue the other co-debtors except regarding
his part or share in the credit. That is, the payment made by an interested joint guarantor.
extinguishes solidarity.

And what happens if the one who pays is a stranger?

It is necessary to distinguish:

Is it an obligation to give or to do?

2Representative, agent, heir, legatee (RM-HL).

3We are within the paragraph of "payment with subrogation" specifically regarding "legal subrogation"

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 • If it is to be done and it is intuitive personae, then as we already said (1572.2) it cannot
Paying a third party on behalf of the debtor. The debtor himself has to pay.
• If it is not an intuitive personal payment, anyone can make it in the name of.
debtor4. That is the famous "deputy for payment," and that deputation materializes at
through a mandate, civil mandate, consensual. Example:
Hey Juan, go pay Don Lucho, here is the money.

Oh yes, I'm going.

If the third party who pays did so with their own money, this third party is subrogated to the rights.
of the creditor (personal subrogation). It is what is known as novation by change of creditor.5.
Sure, he is paying someone else's debt, with the express or tacit consent of the debtor,
obviously, if they sent it. It operates the legal surrogate of 1610 No.5. Now the credit (personal right
Article 578 of the credit changes ownership, from the creditor to the third party who pays, who now has action.
to have the amount paid reimbursed6then you can choose between the action that comes from the mandate
or the action to collect that the original creditor had which now this third party has
personally subrogated.

The third party can pay without the knowledge of the debtor (the famous unofficial agent).

If it is paid without the knowledge of the debtor, there is an action for the debtor to reimburse the amount paid.
of reimbursement) (1573). Here the legal subrogation does not operate, but the subrogation could well operate.
Conventional, but the third party paying cannot compel the creditor to subrogate.

Third party that pays against the will of the debtor

• The first effect is that the creditor is satisfied with their credit.
• The obligation is extinguished between creditor and debtor.

Now let's see what happens between the third party who pays and the debtor. Article 1574 tells us that the
A third party that pays against the will of the debtor has no rights (and therefore has no action).
for the debtor to reimburse what has been paid, unless: the creditor voluntarily assigns it to him
action7.

We must keep in mind what is stipulated in Article 2291.

4Art 1572.
5
1631 No. 2 The novation can be carried out by the debtor assuming a new obligation regarding a
third, extinguishing the original obligation, with the first creditor.
6
Along with the collection action that the agent has for the corresponding obligations of the principal that
emanate from the mandate itself according to article 2158. Just in case they ask (And what other action can the third party exercise?
What pays a third-party debt with the express or implied consent of the debtor?
7Conventional subrogation, which operates through the assignment of rights.

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Art. 2291. He who manages another's business against the express
prohibition of the interested party, there is no demand against him, but in
how much that management would have effectively been useful, and it existed
the utility at the time of demand; for example, if from the management
has resulted in the extinction of a debt that without it I would have had to.
pay the interested party.

The judge, however, will grant the interested party in this case the
deadline8to request for the payment of the claim, and that due to the
the circumstances of the defendant seem fair.

How is this resolved? Is there a contradiction here?

Professor, regarding this we can appreciate different doctrinal positions.

On one hand, we have Mr.:

Don Leopoldo Urrutia tells us that Article 2291 applies when the payment is effectively
Usefulness to the debtor. Ah... and what does that mean by usefulness?

Imagine a creditor whose only desire is to auction off the house of their debtor so that hopefully they can...
I was left on the street. And this third person comes and pays that debt. The interested party will no longer have their property auctioned.

house, therefore, the management of the third party was effectively useful to the interested party. Because if it was not
effectively useful to the debtor must be applied the provisions of article 1574, which states that the one who pays
against the will of the debtor, he has no right for the debtor to reimburse him for what he has paid,
unless it is clear that the creditor voluntarily assigns his action.

Hello Juan

Hello Richard.

Hey Juan, so Jacinta owes you money?

He owes me a million.

Yes, I will pay you for them...

No, because Jacinta told me not to be receiving money from you, she doesn't want you to pay me.
The money she owes me, she already told me, 'don't let you receive a peso!'

I don't care. Alright, Juan, I just transferred the million to you. Now I'm going to collect from that Jacinta person.

In this last case, the payment was not useful to the interested party because Juan was not charging him.
the money to "Jacinta" Juan was a benevolent creditor. Here Richard has no action for Jacinta.
he reimburses what was paid. Unless Juan (the creditor) voluntarily assigns his action to him.

8Here we must keep in mind another case of judicial deadline, which is very scarce in the code.

in which the legislator instructed the Judge to set a deadline.

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What is going to be the problem?

That before the court it will not have active legitimacy to sue.

Then we found Claro Solar: Who tells us that he does not see where the contradiction is in 2291
And the 1574. Because 1574 states that the third party who pays against the will of the debtor has no
right to be reimbursed for what has been paid. But where in 2291 does it say that it should
to reimburse what was paid... What it grants is an actio in rem verso, to claim the part in which
the payment has been effectively useful, and it may very well be less than what the third party paid.

That regarding who the payment can be made to

And if in the exam they ask you, 'Who can the payment be made to?'

You have to deliver a satisfactory product, prepare a response.

That would be something like the following:

"Professor, in principle the debtor or anyone on their behalf can pay, with anyone we...
we refer to a representative, agent, heir, or legatee. We say in principle because
when it comes to an intuito personae obligation and it is one of doing, the creditor cannot be
forced to receive the payment from someone other than the debtor himself.

If later, the teacher wants to delve deeper into the answer or there is something they want to
I then developed that he should ask me.

Who should the payment be made to?

Article 1576 states that payment must be made to the creditor or to whom the law or the judge
authorize to receive on behalf of him, or by the deputy from the creditor for collection (the famous deputy
for the payment). And the payment made in good faith to the person who was in possession of the credit is valid,
even if it later appears that the credit did not belong to him.

So...

Payment can be made:

to the creditor and to all persons who have succeeded him in any capacity9
To its representative
3. To the material holder of the credit.

Here arises the question.

9Thismeans that if the creditor dies, the credit is divided pro rata among his heirs, and each one
He could then sue for his. (The same for the legatees).

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 So does the code say that credits can be owned?

-No professor, the code refers to the material element that contains the credit. For example,
the bearer check.
To whom the payment should be made is something important, because if the payment is not made to the person
So it's correct, it does not extinguish the obligation. He who pays wrongly pays twice. Clearly, there would be a payment.
of the undue and one can request the repetition, but that instead of solving a problem produces
a new one.
Cases in which payment to the creditor is not valid (1578).

Professor, exceptionally the payment is not valid and is void in the following cases:

1. When the creditor does not have free management of their assets.
2. If the debt has been seized by the Judge or ordered to withhold its payment10.
3. If the creditor is currently in bankruptcy proceedings.

Development.

Case of the creditor who does not have free management of their assets.
We said that the payment made to a creditor who does not have free administration is not valid.
his assets. We found a counter-exception for this disposition, the payment made to a creditor
an incapable person could be valid if the debtor proves that with the payment the incapable person has become wealthier. It
I will understand having become richer if the paid things have been necessary for him or if they still exist.
I would like to retain them (1688)11.

The legislator assumes that if the incapable receives the payment, there is a risk that they will dissipate it, but if not...
configures what the legislator wants to avoid in the protection of the incapable, then the payment is
valid.

2. Nullity of payment, in case of seizure or judicial retention.

The reason why payment to a creditor whose credit is seized does not
enjoys legal effectiveness, as that extinguishing convention of rights and obligations,
classifies as a legal act of disposition12, in which the transfer has an illegal object according to
Article 1464 No. 3 stipulates, in relation to Article 1682, that nullity
produced by an illegal object is an absolute nullity. The above is supported by what was said
In article 1578 No. 2. It tells us that the payment is null in the case that by the judge it has been
the debt embargoed or ordered to withhold its payment.

10 With this, the creditor cannot collect, and if the debtor pays, that payment suffers from a defect of nullity. This
because the right of general guarantee extends to incorporeal rights or credits, credit by virtue
from which the creditor receives their payment. It could not be transferred either, as that transfer would be flawed by
illicit object by virtue of the provisions of article 1463 No. 3.
11If the paid or acquired things have been necessary for him and if they are not necessary for him and these still exist, he would like

retain them.
12by virtue of which the creditor releases the debtor from his debt,

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3. Nullity of payment to the creditor who is currently in a procedure
bankruptcy
Upon the issuance of the resolution that accepts the liquidation bankruptcy procedure, the payments
they must be made to the liquidator, responsible for collecting the credits of the asset, for their entry
to the dough.
Article 129 No. 6 of law 20.720 states:

Article 129.- Settlement Resolution. The Settlement Resolution.

Settlement will include, in addition to what is established in articles 169
and 170 of the Code of Civil Procedure, the following:
6) The warning to the public not to pay or deliver goods to
Debtor, under penalty of nullity of payments and deliveries, and the order to
people who have assets or documents belonging to the Debtor
so that they can be made available on the third day,
Liquidator.

Payment to the creditor's representative.

It produces the same effects as if it were done to the creditor himself. The representation can
be legal, judicial or conventional.

• Legal representation: As its name indicates, it has its source in the law, and it is.
who illuminates us with examples of where it operates:
Article 1579: Tutors or guardians validly receive for their wards; the husbands
for their women whose property they manage; the father or mother for the family child,
the tax collectors by the treasury etc.
• Judicial representation: It stems from a judicial ruling, such as in the
case of the depositary kidnappers, undivided administrators.
Conventional representation: It occurs when the creditor grants power of attorney to
Another to receive the payment, the creditor disputes a person to make the collection.

Deputy for Payment.

Powers of the deputy.

Article 1580 indicates that the authorization for payment can be granted through 3 types of powers:

• General13that is to say, power is granted for the free management of all the
business of the creditor or it can be.

13
He who does not grant all-encompassing powers in any case. By the clause of free administration, only
the powers that natural law or specifically grants to the ruler, article 2132 states
What are the powers that the mandate naturally confers to the agent, and it provides: to collect the credits
from the principal and receive payments but only when it comes to credits belonging to 'the administrative business
"Ordinary" in article 2133.2 establishes that the special powers of the agent will be those that
the laws especially confer upon him.

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 • Special: that is to say for the free management of the business or businesses in which
the payment is included, or it can be;
• By a simple mandate: which is communicated to the debtor. It is a very special power.

Powers of the judicial representative (The one who can sue the debtor in court)

According to article 1582, they are not authorized to receive the payment. This is supported by the inc.
2nd of article 7 of the civil procedure code, where it is not understood to be conferred to the attorney,
without special mention, the ability to perceive.

Capacity in the council for payment.

The constitution of a voluntary representative of the creditor is a contract that requires, on the part of
of the principal, capacity to contract. But the agent may well be incapable.14art 1581.
The payment mandate ends due to the causes that lead to the expiration of the mandate.
particular

Due to the death of the president:

2. subsequent incapacity of the deputy and for the revocation.

• Regarding the death of the leader: The ability that a person has to receive a
payment in the name of the creditor does not transfer to the heirs unless otherwise stated
Provided in Article 158315.
• Regarding the subsequent incapacity: Article 1586 states that the person
The deputy becomes ineligible to receive payment for the following reasons:
a. Dementia
b. Prohibition
c. For having made a transfer of assets or having had execution placed on all of them;
d. And in general for all the reasons for which a mandate expires16.

One thing is the term of the deputation for payment and another thing is the revocation of the deputation.
the mandate is essentially revocable, therefore, the creditor can unilaterally revoke it
deputation for payment.

14As long as the provision states: 'even if at the time of being granted he does not have the free administration of his
property nor be able to possess it." The case that remains for us would be the minor, the underage adult, and the deaf or
deaf-mute who cannot make themselves clearly understood, because Article 1586 states that they are incompetent.
to perceive the insane and the interdicted.
15In the same way, the authority to receive payment on behalf of the creditor is not delegable.
16 It is not appropriate to study them here, but rather in the study of the principal; however, we will mention them.
they are found in Article 2163 of the Civil Code. For the performance of the business for which it was established, due to the arrival
of the deadline or the fulfillment of the condition, revocation of the principal, resignation of the agent, death of
principal or agent or being any of them a debtor in a liquidation bankruptcy proceeding, By
the interdiction of one or the other, due to the cessation of the functions of the principal, if the mandate has been given
in their exercise.

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I could not unilaterally revoke:

1. When the power to perceive granted to the agent has been conferred by both
the debtor as well as the creditor17.
2. When it has been agreed that the payment can be made to the creditor itself or to a
third.

The creditor cannot prohibit payment to a third party art 1585. Except:

• When before the prohibition the creditor has sued the debtor.
• When he proves a just cause.

If the payment is not made to the creditor directly, nor to their representative, it is still valid if it is
in good faith18to whoever materially holds the credit19although it may appear later, that the
the credit did not belong to him. Art 1576.2.

Validation of the payment made to a person unable to receive it

It proceeds by virtue of the express or implied ratification made by the creditor. Or if the one who has received
the payment occurs to the creditor as an heir or under any other title. The ratification operates from
retroactive.

PLACE, TIME, AND PAYMENT EXPENSES

Where should the payment be made?

Firstly, at the designated place in the convention. Art 1587.

What if nothing was said?

We must distinguish whether they are obligations of specific goods or certain bodies or generic ones.

• Ob. Species or specific object: It is paid where the thing was located when it
contracted the obligation.
• Regarding gender: The payment is made at the debtor's address.
Subsequent changes of address do not affect the address where it was originally.
the payment should be made (unless otherwise agreed).

17
Without prejudice to the authority that the law grants to the creditor in article 1584 to go to the Judge to
revoke this mandate, in all cases where the debtor does not object.
18In good faith, we understand here the inner conviction that the payment is made to the true creditor.
19Putative creditor.

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Importance of the place of payment

While studying the effects of obligations, we saw that one of the characteristics of the action
resolutory, is whether this will be movable or immovable depending on the object of the obligation according to the
Article 580, and the importance of this determination for the jurisdiction of the courts. For this
the same reason it is important to determine the place of payment depending on whether the thing is movable or
property and we refer to what was said there.

• Real estate action20The judge is competent when the parties have agreed on it.
convention. In the absence of agreement, the following shall be competent:
a. The judge of the place where the obligation was contracted.

b. The Judge of the place where the claimed species is located.

Action furniture21The Civil Code applies and the judge of the place will be competent:

that the parties have agreed

b. in the absence of an agreement, the defendant's domicile.

When should the payment be made (1826).

When the obligation has become enforceable. That is:

• It contracts when it is pure and simple.

• Upon the deadline or fulfillment of the condition, when it is time-bound or conditional.

The payment expenses:

According to article 1571, the general rule is that they are the responsibility of the debtor, unless the parties
arrange something else and what the judge decides about the legal costs. In the case of payment for
Deposit, the expenses of the offer and deposit are charged to the creditor (art 1604), this is because
It has been the creditor, who in their refusal to accept the payment has generated expenses.

How the payment should be made:

• Article 1569; Payment must be made in strict compliance with what has been agreed.22.
• Article 1591: Payment must be total23and fully meet the obligation.

20Art 135 COT.

21Art 138 COT.
22The debtor must give, do, or not do that which they obligated themselves to. The creditor cannot be forced to receive.
something different from what is due.
23What includes the interests and indemnities owed.

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 Payment with subrogation

Subrogating is to replace one thing.1or a person2for another that legally occupies its place.

Real subrogation takes place, for example, in the case provided for in Article 1672, if the
The certain body perishes due to fault, or during the debtor's delay, the obligation persists, but varies in
object, the debtor is now obliged to the price of the thing and to the compensation for damages. The price
and the compensation legally produces a real subrogation, to the certain body that perished due to
cause attributable to the debtor.

Personal Subrogation, in payment with subrogation.

We refer to the creditor who is replaced by another as a result of the payment. We know that
if the payment is made by the debtor, the legal relationship with their creditor is extinguished.

The problem arises when someone other than the debtor pays, who has a direct interest or
indirectly in extinguishing the debt, a stranger, or even the debtor himself, but with the money that he
supplies a strange case in which a new legal relationship is born into the life of law between the
person who made the payment or provided the money for the payment and the debtor. For example.

If the bank is about to foreclose on Pedro's house, and Juan lends him the money to pay, he will be able to exercise
against Pedro the actions derived from the loan. If Juan pays the creditor directly, he will be able to exercise
against Pedro, the actions derived from the mandate if Pedro requested it or the action of
refund that comes from the unofficial agency if it was not requested and neither of the two if it is that he
They had told Pedro not to pay, and Juan comes and pays against Pedro's will. Unless
that the creditor, in this case the bank, voluntarily cedes its shares through a
assignment of rights.

What is the problem, that the actions derived from the loan, the mandate, or the agency
unofficial, they are mere personal actions, which carry the risk of uncollectibility due to insolvency of the
debtor. This reduces the motivation of the third party to want to provide financial assistance to someone due to
It requires your utmost trust. These fears dissipate when the third party is enabled.
to legally exercise the position that the creditor holds, enjoying all the guarantees that
they caution that credit which takes place by virtue of the subrogation. Problem solved, the
the creditor sees his credit satisfied, the debtor is relieved from the pressure of the demanding creditor and the third party
enjoys guarantees on your new loan. As can be seen, subrogation meets all the
interests of the subjects participating in it and that is where their practical interest lies.

Definition: It has a legal definition, we find it in article 1608 "Subrogation is the

transmission of the creditor's rights to a third party who pays him.

1Real subrogation.
2Personal subrogation.

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It is a definition that admits certain criticisms.

It is a restricted definition.
2. The transmission rather implies the transfer of a right due to death.

We find in subrogation a legal fiction in which the credit is extinguished with respect to the
creditor who received the payment, but remains regarding the third party who made the payment and with all their
accessories, privileges, garments, and mortgages that secured the creditor's credit that has already been
satisfied. The obligation changes the creditor, remaining the same3.

Surrogacy classes

Subrogation can be legal or conventional. Let's see.

Legal subrogation.
It operates solely by the ministry of the law, even against the will of the creditor. It operates fully.
right when the law so provides and especially for the benefit of the numbered cases in the
Article 1610. (To read it).

1. Of the creditor who pays another creditor of better right due to a privilege
the mortgage.
Here we have 2 creditors, one of them pays the one who has a privilege or a
mortgage. An example of this would be the purchase of a bank portfolio.
2. From the one who, having purchased a property, is obliged to pay the creditors.
who the property is mortgaged to;
This happens when the one who bought a property that was mortgaged for 300
for 450, the mortgage creditors were 3. A, B, and C. and with the 300 of the price only
covered A and B, then C who as a mortgage creditor has a real right over
the thing regarding which the credit can be collected, auctions the property and in the
From the auction, 350 is obtained. With the proceeds of that auction, what is done is
First, the buyer is reimbursed the 300 they paid and the other 50.
they only take advantage of C.
Let us remember that the law provided for legal subrogation to operate "to
benefit to the buyer of a property that was forced to pay to the creditors
they had the property mortgaged.
Claro Solar tells us that it happens when the buyer was unaware of the existence of
the mortgage and pays the price to the buyer, subsequently being pursued by
the mortgage creditor and the substitution will take place. Which would not have much
sense, because the buyer would now be the mortgagee of their own property.
But if it takes place, in the event that another mortgage creditor comes later who wants
foreclose the property to collect on his credit.

3It is known as subjective novation due to a change of creditor.

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 3. From the one who pays a debt (belonging to another) for which he is jointly or severally obligated

subsidiarily;
If there are several guarantors, the obligation is divided equally among all of them.
and if a guarantor pays more than what proportionally corresponds to them, it tells us the
2378 that is subrogated for the excess in the rights of the creditor against others
guarantors. That regarding the guarantor.
Regarding the subrogation in these terms of the joint guarantor, we have to
distinguish whether it was an interested co-debtor or a non-interested co-debtor. If
A co-debtor interested can only charge their co-debtors for their part or share in the
credit. If they are an uninterested co-debtor, they are considered as a guarantor.
4. From the beneficiary heir (benefit of inventory) who pays with his own money
the debts of the inheritance;
It is about an heir with the benefit of inventory who pays with their own funds.
with which he becomes a creditor of the succession and enjoys the guarantees that they had.
the credits that were paid.
5. From the one who pays another's debt, with the debtor's express or tacit consent;
We talk about the payment made by a third party, foreign to the obligation, but with the
consent of the debtor. This third party acts as an agent of the debtor, mandate
which is constituted even consensually art 2123.
6. Subrogation in favor of the one who lends the money for the payment.
The person who lends money to the debtor subrogates the rights of the creditor.
loan, must be recorded in a public deed and state that with that money
extinguishes the debtor's debt.

Conventional Subrogation

It is an agreement of wills between the creditor and the third party who pays. It arises
the interest of this institution, in all cases where subrogation does not take place
legally, it makes no sense to say something that the law has already stated.
We saw that if the third party pays without the knowledge of the debtor, subrogation does not occur.
legally, it cannot compel the creditor to subrogate, this will only take place if it operates
conventionally.
Conventional subrogation is a transfer of rights and is done in the letter of
payment.

Requirements for conventional subrogation:

Creditor's will4.
2. That a third party unrelated to the obligation pays.
3. The assignment (subrogation) must be made at the time of payment.5and to be included in the letter
for payment.

4The will of the debtor in this assignment plays no role.

5This is because payment extinguishes the obligation, and the creditor cannot revive it to assign their rights to a third party.

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 4. That the rules of the assignment of credits be observed.6.

Effects of surrogacy

Legal and conventional subrogation produce the same effects. The active subject changes.
but the obligation remains unchanged, the new creditor can pursue against the
debtor as guarantors and co-debtors.

Partial Subrogation

Subrogation is partial when the creditor receives a partial payment of their credit.
So the credit now belongs to the original creditor and the subrogated creditor, but the
the original creditor has a preferred right to the subrogated, first in time, first in
law. Article 1612.2.
If there are several who come to subrogate the original creditor, they do not have preference.
among them and to satisfy the payment of the credit they are currently enjoying, and each one has
right to collect their share or quota, only. 1613.

Differences between cash payment and payment with subrogation:

The cash payment completely extinguishes the obligation, erga omnes.7

Could legal effects still occur after the actual payment?

Yes. In the case that a third party pays, without the debtor's knowledge, who would have the right to
refund8which emanates from the quasi-contract of the unofficial agency, which distances itself from the source.
of the obligation that the original creditor had, whose credit was extinguished due to the payment,
completely extinct.
The payment with subrogation extinguishes the obligation in a relative manner.

It does not extinguish the debt erga omnes, but only with respect to the creditor who receives the payment, but the bond
between the debtor and the party subrogated in the rights of the original creditor persists.

Which implies that the obligation does not extinguish, but there is only a subjective novation due to change.
of creditor.

6 It is not perfected between the substitutor and the substituted, but with the delivery of the title that contains the credit and for it to be
perfection between the debtor and third parties requires notification or its acceptance, notification that must be made
exhibiting the title, indicating the transfer of the right, designating the assignee (the one who receives) and in the form of the assignor
(the one who delivers) articles 1900 to 1904.
7That is why it is not called just 'payment' but 'effective payment'.
8Article 1573.

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Difference between payment with subrogation and novation
The novation changes the creditor, but the obligation that arises between the new creditor and the debtor is
new and completely different from the original obligation

Parallel between payment with subrogation and credit assignment.

Similarities:

In both institutions, there is a change of creditor and a permanence of the

obligation that the debtor has towards the person who substitutes the creditor as well as
with the assignee.
2. Both acquire the credit with all its accessories, privileges, and mortgages (art
1612 and 1906.
3. Conventional subrogation is governed by the rules of the assignment of credits.
Differences:

The assignment of credits always implies an agreement of wills between the creditor
(transferor) and assignee, of course, as it is a contract.
In the payment with subrogation, unless it is a subrogation
conventional, here the creditor's will is not required and it occurs even in
against their will.
In the assignment, the assignee has the rights that were assigned to him.
In the payment with subrogation, the subrogated party has the actions and rights of the creditor.
plus those that correspond to them by right according to the source from which they emanate
whether it is from the bond, the mandate, the loan, the unofficial agency, etc...
3. The assignment of credits is always formal.
The payment with subrogation is only solemn in the conventional subrogation and
the legal of article 1610 Nº6.
4. If the assignment of credits is partial, the assignee of a part and the creditor who
retaining the balance are in equal conditions against the debtor.
In the payment with subrogation, the first creditor has the right to be paid.
preferably to the subrogation in the balance of your credit.
5. In the assignment made for consideration, the assignor assumes responsibility.
agreed, and assumes responsibility for the existence of the credit, which implies that the
The assignee has a guarantee action against the transferor.
The subrogee lacks this action of guarantee. In case such credit does not exist, it
the action of repeating the payment of what is not due remains.
6. The assignment is a speculative act. The assignee may manage to collect the total amount.
of the credit or charge only part of it. You may recover more than what you paid for it,
or less. It may mean a gain or a loss for him, every time that the
The transfer could be for consideration or free of charge.
Insofar as subrogation is a protective measure for the third party that paid,
that lent the money for the payment, protection that operates only to the extent

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 of what he paid. The subrogated party cannot receive from the debtor more than what he paid to the
creditor.

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 PAYMENT BY DEPOSIT.

It is one that is carried out against the will of the creditor, after having been offered.
the thing and by virtue of the repugnance or non-appearance to receive it, or of the uncertainty about
from the person of the creditor, and is realized by depositing the item in the possession of a third party.

Definition in the words of Mr. Ramón Meza Barros. R.I.P.

The debtor not only has the obligation to pay, but also has the right to do so, for
Example; to recover a pledged asset, to avoid falling into DICOM, to prevent burdensome interest.
etc.

But... what if the creditor refuses to accept the payment? The creditor's failure to accept their
Payment does not allow the debtor to fail in their delivery. The law assists the debtor in their right to pay.
with the institution of payment by consignment.

The debtor can pay even against the will of the creditor (1598). And as it is a payment,
not only the debtor can pay by consignment, but also their representative, attorney,
heir and legatee.

Elements of the consignment:

The offer
2. The actual consignment.

THE OFFER:
Definition: It is the act through which the debtor expresses their willingness to fulfill with the
obligation, with it, the debtor gives the creditor the opportunity to receive payment voluntarily,
to manifest their resistance or rejection of receiving the payment.

The offer is a prerequisite for the consignment article 1600, and can be merely verbal.

How should the offer be made?

It is necessary to distinguish:

1. If the creditor is present: the provisions of article 1600 apply where

we found the requirements of the offer.
If there is no residence at the location, is not found, or it is not certain who they are.
creditor's person: the provisions of article 1602 apply.

Offer Requirements (Article 1600)

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We found substantive requirements, which are inherent to all payments, article 1600 No. 1 to 4, and
we have requirements in the form, indicated in numbers 5 to 7.

Shape requirements (1600 No. 1 to 4)

The offer must be made:

For a person capable of paying.

2. To the creditor capable of receiving the payment or to their legitimate representative1
3. When the obligation is currently enforceable2.
4. That payment is offered to be made at the appropriate place.

Shape requirements (1600 No. 5 to 7)

The offer in payment by consignment is a solemn act; the law has given it this character so that
I have an unequivocal record of her.

5. The offer must be made by a public official.3

The official must prepare a record of the offer, accompanied by the minutes.
of the debtor.
7. The record must contain the response of the creditor or their representative and the indication
whether it has been signed or not, because he/she did not want to or could not.

If what is paid by consignment is an amount in foreign currency, the debtor must

to accompany the minutes specified in article 1600 No. 5, a certificate issued by the bank of the
plaque, granted no more than 2 days prior to the date of the offer, where the equivalence is stated
in national currency according to the selling exchange rate, to the foreign currency owed. For

1Let us remember here what article 1576 tells us, (who the payment should be made to) the payment must be made:

to the creditor or
b. to whom the law or the judge authorize to receive for him, or
c. to the representative appointed by the creditor for collection (the famous, representative for payment).
d. And the payment made in good faith to the person who was in possession of the credit is valid, even if it later appears that
the credit did not belong to him.
In the case of the payment made to the creditor, this is not valid in the cases indicated in article 1578. We are talking about:

a. Creditor who does not have free management of their assets (unless it is proven that the payment has been made
richer according to what is provided in 1688)
b. If the judge has seized your credit (the code says the debt) or ordered to withhold your payment.
c. If the recipient of the payment is currently a debtor in bankruptcy proceedings.
2That it is not subject to a deadline or a suspensive condition. Although if the obligation is for a deadline, the offer can be made on both.

last working days of the deadline.

3We talk here about a notary or through a receiver, but in the municipalities where there is no notary, the official can act in their place.

from the civil registry of the place where the payment must be made. It is materialized by placing in the hands of the official a
Minute with the details of the due thing, indicate any overdue interests if there are any and the other liquid charges, and a
individual description of the thing offered.

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To avoid the above, the debtor may in any case deposit the amount in foreign currency.
indebted, directly. Article 23 of law 18.010.

Job requirements, according to 1602.

The required assumptions for this case are that the creditor does not have a residence in the place, not
whether it is known or not with certainty who the creditor is, in this case the terms are modified
requirements of the offer and must now comply only with the provisions of article 1600 No.
1, 3, 4, 5 and 6. That is:

No. 1 That the offer be made by a person capable of paying.

No. 3 That it is currently enforceable.

No. 4 That payment is offered to be executed in the proper place.

No. 5 That the offer be made by a person skilled to carry it out.

No. 5 The person making the offer shall issue a record of the offer.
Here it is not necessary for the offer to be made to the creditor or their representative, in this case the
the offer is made to the respective communal treasurer, who will be limited to taking note of it and the
The debtor may proceed with the consignation according to what is stated in Article 1601.

Cases in which the offer is omitted.

The offer is evidently unnecessary in the cases of Article 1600 No. 7, that is:

1. If the creditor legally demands compliance with the obligation. What it

to concede is to acquiesce to the complaint.
2. If the creditor brings any other action that can be resolved by payment.
of the debt, as in the case of the resolutory action.
3. In the case of periodic payments of sums of money coming from the same source.
obligation, the installments following the one that has already been deposited will be deposited in
the court's account, without the need for new offers art 1601.5

Once the offer is made, it must proceed to the consignment (or deposit) in the possession of a third party.

THE DEPOSIT

Definition: You have legal definition, Article 1599:

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The consignment is the deposit of the thing owed, made by virtue of repugnance or not.
appearance of the creditor to receive it, or uncertainty about the identity of the creditor and
with the necessary formalities, in the hands of a third party.

It is the legal act by which the debtor relinquishes the thing, giving unequivocal account.
of their willingness to fulfill the obligation.

Neither the offer nor the consignment require prior judicial decree. Art 1601.3.

Forms of consignment.

The deposit must be made in the manner established in article 1601.

In this way, it can be practiced.

a. In the checking account of the competent court4.

in the communal treasury
c. In a bank
d. At a fair
e. Hammer or general warehouse of deposits of the place where the payment is to be made according to
such is the nature of the thing offered.
In the possession of a custodian, appointed by the competent judge5

Special rules for the payment of lease rents.

In the event of the landlord's refusal to accept the rent of the lease or to grant the
corresponding receipt to the tenant who does not wish to resort to the payment procedure due to
Deposit, the tenant can deposit the rent in the treasuries corresponding to the location.
of the property, indicating the name, surname, and residence of the landlord. The Treasury provides you with a
I receive and inform the landlord of the existence of the deposit by certified letter. This payment is
It will be considered as done to the landlord for all legal purposes. But its sufficiency will be qualified.
in the corresponding trial. Payment by deposit does not imply acceptance of the tacit
reinstatement indicated in article 1956 section 3. The landlord has a period of 3 years to withdraw the
treasury funds

Intervention of the creditor.

The creditor does not intervene until the offer has been made and the deposit has been executed.

Versa the article 1601.4

In the payment by consignment, no management or judicial recourse by the creditor will be accepted, aimed at
to hinder the offer or the consignment. Therefore, no opposition will be entertained or
creditor's request

4In the cases of article 1600 no. 7 and 1601 no. 5

5The competent judge is the civil court judge in the place where the payment must be made according to Article 1601.6.

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Procedures following the deposit

a. The debtor may request the judge to inform about the deposit to the
creditor, with a demand to receive the consigned thing. Art 1603.1
b. The creditor has 30 business days, counted from the notification of the deposit.
to test the existence of a trial in which the sufficiency of payment is assessed. If
There is none, at the request of the debtor, the judge who ordered said notification will declare it.
sufficient and will order the lifting of the guarantees, without further proceedings. The resolutions it issues
The judge's decisions will be appealable only in the deferential effect. Art 1603.3
c. It will be understood that there is a trial, from the moment the demand has been notified.
d. The 30-day period is extendable by the judge, if due to reasons beyond the control of the
creditor, it has not been possible to notify the debtor” art 1603.4

Trial to qualify the sufficiency of the payment

When the deposit is made in the trial in which the creditor demands compliance with the
obligation or any other action that may be weakened by the payment of the debt,
the sufficiency of the payment will be assessed in that same trial.

We refer to article 1601 No. 7.

But if after 30 days, counted from the notification of the deposit to the creditor,
this does not prove the fact of an ongoing trial to qualify the sufficiency of the payment, the judge that
ordered said notification, at the debtor's request, will deem it sufficient and will order to lift the
bonds without further proceedings article 1603.3

Expenses of payment by consignment

The expenses of all valid offers and consignments shall be borne by the creditor. Art 1604. Clearly, then.
it has been him who has caused them.

Effects of payment by consignment

As a logical effect of being a payment, it extinguishes the obligation, causing the interest to cease.
and exempt the debtor from the risk of the thing. All this, counted from the day of the consignment.

The extinction of the debt occurs on the day of the deposit, but only if the offer has been made.
practiced no later than the next business day, upon the expiration of the obligation.

Withdrawal of the deposit

The withdrawal of the deposit may occur before or after:

a. accepted by the creditor or;

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 b. declared sufficient by the judge.

The legal effects of each case are different, namely:

If it is withdrawn before accepted by the creditor or before declared sufficient by the judge
by final judgment the obligation subsists and according to article 1606 it will be regarded as of no value
and regarding the consignor and their co-debtors and guarantors.

If it is withdrawn after being accepted by the creditor or deemed sufficient by the judge
an executed judgment cannot be withdrawn by the debtor without the creditor's consent. However
accepted the withdrawal, Article 1607 tells us, which is seen as a completely new obligation,
which implies that solidarity, the guarantee, extinguishes, and the creditor loses privileges or mortgages
of the original loan, if the parties voluntarily agree to renew the mortgages
previously, they must be re-registered and their date will be that of the new registration.

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 Payment with competitive advantage
Definition: It has a legal definition.

Art 1625.

Benefit of competence, is granted to certain debtors not to be required to pay

more than they can reasonably do, leaving them accordingly with the essentials for a modest
subsistence, according to their class and circumstances, and with the obligation of repayment, when their fortunes improve.

Payment with the benefit of competition is a form of payment. We know that the payment
it must be total and the creditor is not obliged to accept a partial payment. Under this modality, the
creditor is obligated to accept from the debtor who enjoys the benefit of competition, the payment of the
obligation, but with the deduction of what is necessary for the debtor to secure a modest livelihood.

Who enjoys the benefit of competence? Art 1626 No. 1.

1. The descendants and ancestors, provided that they have not caused harm to the creditor.
offenses classified as grounds for disinheritance1.
2. To the spouse from whom they did not separate judicially due to fault.
3. The brothers, following the rules indicated in No. 1.
4. The partners of the shares arising from the partnership contract2.
5. The donor, when it comes to fulfilling the promised donation.
6. The good faith debtor.

Good faith debtor.

We have to understand as a good faith debtor, one whose insolvency situation was the result
of "inevitable accidents" (in the words of Pablo Rodríguez Grez).

We are facing a debtor who did not voluntarily or willfully cause the state of insolvency.
in which it currently finds itself. Under the principle that no one can take advantage of their own
malice or gross negligence, it would be inappropriate to grant this benefit to a debtor who caused their own
insolvency, with the purpose of failing to meet the obligations it has to its creditors. Such is
as the legislator understands it, in the definition of competition benefit, it is stated that

1Article 1208 They are exhaustive, they imply an improper behavior of the heir.
1. For having committed severe insult against the person of the testator, their honor or their property (or that of their...
spouse). Ascendants or descendants.
For not having assisted him in a state of dementia or removal, being able to;
3. Having used force or deceit to prevent him from making a will.
4. For having married without the consent of an ancestor, while being obligated to have it;
5. For having committed a crime that deserves a punitive penalty; or for having succumbed to vices or
infamous farming practices unless it is proven that the testator did not take care of the education of the
disinherited.
2And that they are not authors of a serious offense.

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it is granted to certain debtors not to be required to pay more than what is 'fairly'
they can.

Benefit of competition and right to alimony.

We see that they enjoy the benefit of competition, approximately the same people that they
They must provide food according to article 321. However, the right to food can be enforced.
through the course of action, whereas the benefit of competition, only by way of exception.

Effects of competition benefit

The payment with the benefit of competition is a partial payment, by virtue of which the outstanding balance remains.
Debtors reserve goods to subsist modestly, "with the obligation of returning when
"improve your fortune" the 1625 tells us. What is the parameter of modest subsistence, it is something that
It is up to the judge to qualify.

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 Extinctive Prescription

The extinguisher or liberatory prescription is according to article 1567 No. 10, a way to extinguish
the obligation. Its scope of application is broader than that of usucaption, extinguishes rights.
personal and real.

The most characteristic element of extinctive prescription is the inaction of the creditor, it is
to say; the lack of exercise of actions or rights that lose their effectiveness over time
legal effectiveness.

Legal Basis of Extinctive Prescription.

Legal Certainty
2. Presumption of the interest to abandon the action or right that belongs to the creditor
3. Sanction against the negligent creditor
4. The passage of time that turns a situation of fact into a right.
5. Presumption of credit satisfaction

In summary, it is based on the legal presumption that the credit has been satisfied.
or the creditor has waived the exercise of their right.

Comment

Although it is true that article 1567 deals with the ways to extinguish obligations, we
We know that prescription does not extinguish the 'obligation'

Article 1470 continues to consider 'obligations' but now as natural, civil ones.
extinguished by prescription, are the so-called distorted or degenerated ones1.

The debtor has an obligation to their creditor, but the latter has lost the right.
to demand its compliance, this means being deprived of action.

In fact, title XLII, in its paragraph 3, which includes article 2514 and the following ones, is
denomination of prescription as a means of extinguishing judicial actions

Definition:

1Distorted because they lost the virtue of demanding compliance through coercive means and degenerated because
they have changed from gender, from civilians to natural.

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It is a way to extinguish actions and rights of others, due to not having exercised such actions and
rights, for a certain period of time and meeting the other legal requirements.

Requirements for extinguishing prescription.

That the action is prescriptible23

2. That the prescription is alleged456
3. That it has NOT been interrupted
4. That is NOT suspended7
5. That the time set by law has elapsed.
6. Inactivity of the creditor

Waiver of prescription.

Once it has been set up for the debtor, the legal ability to invoke the statute of limitations, this
You can resign from it explicitly or implicitly. It is a common norm for both species of
prescription article 2494.

Ability to waive prescription

Art 2495. Only the one who can alienate may waive the prescription.

Interruption of the prescription

2
Immediately keep in mind the answer to the logical question that arises here: Give me an example of a
action civil unprescribable. The partition action. Or the action to claim parentage of article 320 (I
I give this example and I'm sure they will take me to family)
3Here is Article 26 of the Law on the retroactive effect of laws that states that the prescription
what began to run under the empire of a law, cannot be completed under the empire of a later law
that action or right is declared imprescriptible.
4
By the debtor obviously. Principal debtor, joint debtor, and subsidiary debtor. If the same creditor claims it.
loses its action.
5There are exceptions where the statute of limitations can be declared ex officio, such as the statute of limitations for
the executive action, if the title has more than 3 years counted from when the obligation was made
exigible. Likewise, the judge must declare the criminal action for the penalty, even if the defendant does not raise it (art 102
CP).
6 The way to plead is through the exception route. It is not a defense, it is an allegation of the type exception.

peremptory (just like res judicata, transaction, effective payment), directly intended to extinguish the action
deduced. The procedural opportunity to be argued is in the ordinary trial, and while the generality of
The exceptions must be raised in the answer to the lawsuit, the exception of prescription.
it can be argued throughout the entire sequel of the procedure until before the summons to hear the sentence in
first instance and up to before the hearing of the case in the 2nd instance. Art 310 of the CPC.
7Here the obvious question is... in favor of which people is it suspended (we will see).

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 Let's start with the basis that for the prescription to operate, a creditor is required who does not
request the compliance and of a debtor who does not fulfill their obligation.

The interruption is then the legal consequence, the effect, what happens if it is that
any of these 2 assumptions ceases to arise. That is, the creditor sues, or the debtor
make an express or tacit acknowledgment of the debt.

Ways to interrupt the statute of limitations.

The interruption can be civil or natural. The civil interruption is the work of the creditor by filing the
demand8judicial9(art 2518.3), the natural interruption is the work of the debtor by acknowledging the obligation
expressly or tacitly (art 2518.2).

Cases in which the lawsuit does not have the virtue of interrupting the statute of limitations.

Article 2518 states that the statute of limitations is interrupted by a legal claim, except in cases
enumerated in article 2503. Namely:

1. It has not been notified in the manner prescribed by law.

2. The plaintiff expressly withdraws the lawsuit.10
3. Declaration of abandonment of the procedure
4. Dictation of acquittal sentence

Effects of the interruption of the prescription

It produces a double effect; on one hand, it halts the accumulated time for acquiring by prescription.
and causes the accumulated count to be lost. The previous time is lost definitively.

It is worth noting that the lawsuit only benefits the creditor who has attempted it and against
of the debtor to whom it has been addressed.

The same applies to the debtor who acknowledges the debt, it only harms this person and only their creditor.
take advantage. Art. 2519.

That is to say, the interruption has relative effects.

8
Duly notified. If not, it has no effect. Proof of this is that the plaintiff can
withdraw it without further ado article 148 CPC.
9Preliminary proceedings for the executive route do not have the virtue of interrupting civilly. The lawsuit is the

request made to the judge to decide on the right being claimed.

10The withdrawal of the lawsuit extinguishes the action (art 150 of the CPC)

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Exceptions to the relativity of the effects of the interruption.

They correspond to joint and indivisible obligations.

JOINT OBLIGATIONS: The interruption that benefits one of the several creditors favors
to the others. And the act that harms one of the debtors harms their co-debtors (art 2519)

INDIVISIBLE OBLIGATIONS: The interrupted obligation, regarding one of the debtors of a

indivisible obligation, it is also for others (art 1529)

SUSPENSION OF THE STATUTE OF LIMITATIONS

Definition of Suspension of the prescription (2.509): It is the benefit that the law grants to certain
persons for whom the statute of limitations does not apply.
The statute of limitations does not run against one who is unable to act.11

But the Chilean legislator has preferred to explicitly indicate who those people are in favor of.
for whom the statute of limitations does not run... or in other words; 'in favor of whom is it suspended.'

Who are these people?

Those who do not have the free administration of their assets:

1. The incapacitated: Minors, the insane, the deaf or mute who cannot make themselves understood.
to clearly understand, those who are subject to guardianship or parental authority.
2. The married woman in community property while it lasts: If the owner of the asset is a
married woman in community property, that asset cannot be acquired by prescription
as long as this lasts.
3. The latent inheritance: That inheritance, regarding which, no one has taken the
administration still, is an inheritance that has heirs, but that no one is
administering, therefore, regarding the assets of that inheritance, the prescription remains
suspended.
4. The statute of limitations is ALWAYS suspended.12between spouses: This also extends to the
civil cohabitants.

11"Against one who is unable to act, the statute of limitations does not run"
12Italways means ordinary and extraordinary. And it would be the only case in which the prescription
extraordinary is suspended "between spouses". The arguments are: That in the last paragraph of article 2.509 it
refers to 'always' regardless of whether it is ordinary or extraordinary. And article 2.511 says that the prescription

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 The prescription implies a person who is a possessor and a person who is an owner. The law
protects the owner, suspending the prescription against him.

The legislator does not think it is appropriate for the husband's assets to pass to the wife's estate.
spouse and vice versa. That is why the buying and selling between spouses is prohibited. The legislator
it is estimated that it is dangerous, third parties can be defrauded.

If we go to 2511, it states that extraordinary prescription is not suspended in favor of the

Individuals listed in article 2509. That is:

1. The absolutely incapable.

2. The married woman in community property while it lasts.
3. The latent inheritance.
So we could conclude that the extraordinary prescription is indeed suspended between
spouses, because otherwise the 2509 would have numbered it, but it is not numbered.

EFFECT OF SUSPENSION:

Effects of the suspension of the prescription

The suspension pauses the elapsed time. When the cause of the suspension ceases, time
keep running usefully.

For example. We have Pedro who has started to own a car. Pedro has managed to gather all the
requirements of regular possession and opts for ordinary prescription. The owner of the car is me... and
I am not

1. Absolutely incapable
2. Married woman in a marital partnership or civil partner of Pedro
3. Pending inheritance
There is no suspension of the statute of limitations here... When 18 months (out of 24) have passed, I die.
And the ownership of the car goes to my son who is 16 years old. Since the owner is now a person who does not
he has free administration of his assets but is an adult minor at that moment (to
moment of death) the statute of limitations is suspended. That is... after 18 months, Pedro
You will have to suspend the prescription period; those 18 months are not lost, you keep them.
Assuming my son is 16 years old, Pedro has to wait until he turns 18.
opportunity in which he will lose the benefit of the suspension. Then Pedro will be able to resume the

Extraordinary is not suspended in favor of the persons listed in 2,509, and the case of spouses does not apply.
is listed.

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computation of your prescription, counting from the 18 months in which it remained when the owner of the car
died.

So, once you turn 18, wait 6 months, which will give you 24 months and then try.
the acquisitive prescription
Something that should have initially taken 2 years took 4 years. Because the suspension caused
pause the counting to prescribe.

If we change the example and I die at 18 months, but my heir is 6 years old... Do I have
What to expect 12 more years to compute the 6 months that are missing? No, because having passed
I can invoke extraordinary prescription after 10 years.

Limits of the suspension of the statute of limitations

Article 2520.2 After 10 years, suspensions in favor of individuals will not be taken into account.
indicated in numbers 1 and 2 of article 2509.

PASSAGE OF TIME

• The deadlines must be complete.

• The holidays are still counted (art 50) and;
• Until midnight on the last day of the deadline (art 49, inc. 1).

Since when is the deadline counted?

Since the obligation has become enforceable article 2514.2

Therefore:

• If it is a time-bound obligation: The prescription starts to run from the moment it

meet the deadline.
• If it is an obligation subject to a suspensive condition: It is counted from the moment it is fulfilled.
the condition.

Special rules:

• The statute of limitations for the resolution action arising from the commissory agreement is
4 years counted from the date of the contract. Article 1880.

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 • The action for reforming a will is subject to a statute of limitations of 4 years, counted from when the
interested parties had 'knowledge of the will and of their status as legitimaries.'

The statute of limitations is set by law.

And therefore, in principle, the parties cannot expand or restrict it.

Exceptions:

Article 1880 states that the resolutory action that comes from the pact of commisso,
prescribed within the timeframe set by the parties 'if it does not exceed 4 years.'
2. The period to attempt the action of repurchase 'may not exceed 4 years' art 1885.
how well it allows the parties to set a shorter deadline.
3. The statute of limitations for the redhibitory action shall be what the law stipulates in all cases.
cases in which the parties have not extended or restricted the term art 1866.

Long-term prescription

For the determination of the time necessary for the prescription to operate, it is
It is necessary to consider the legal nature of the action or the personal right from which it derives.
that action.
• From personal rights arise personal actions.13, this kind of
obligations generally expire in 3 years for executive actions and 5 years for the
ordinary shares (2515).
• From real rights arise real actions.14and they prescribe when another person
acquired the thing through acquisitive prescription that works in favor of the possessor (2517).
• The actions derived from accessory obligations expire with the obligation.
principal152516

Prescription of the ordinary action.

Ordinary shares are those that are deducted to obtain a declaration or
Recognize a right. They are called ordinary because they are enforced in a procedure.
ordinary or of broad knowledge.
Within a period of 5 years, for example:

13 They are referred to in doctrine as obligation actions.

14They are called proprietary actions in doctrine.
15This has a logical and practical explanation, because if the accessory action expires in a shorter time, the
The main obligation is left without a guarantee. Conversely, if the main action expires first, the accessory action does too.
it would remain guaranteeing a non-existent action.

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 • The resolutory action that comes from the tacit resolutory condition.
• The seller's action to claim the payment of the price.
• The action of the lender to demand the return of the loaned sum of money.
• The action of the contractor to request compensation for the damages caused
for the breach of the contract.

Prescription of the executive action.

The executive action is one that arises from an obligation that is documented in a clear manner.
clear and undisputed in a title to which the laws confer executive merit and
It prescribes in three years. The law grants the judge the authority to declare the prescription ex officio.
from the executive action (442 cpc).

Statute of limitations for the reivindicatory action.

The term for the reivindicatory action is variable, therefore, the law has not specified
a single deadline for its execution. We know the domain, it is not lost due to disuse, but rather it
loses because the possessor, not the owner of that thing, acquired it by prescription.

For the acquisitive prescription of things, the Code sets different deadlines and
distinguishes between ordinary and extraordinary prescription. Therefore, the term for the
the acquisition of the asset fluctuates between two and ten years, distinguishing between goods
furniture and real estate in regular possession and for 10 years for all kinds of goods in the
irregular possession that leads us to extraordinary prescription.

Prescription of the action for inheritance claim.

The action for claiming an inheritance is extinguished by the acquisition prescription of the
real right of inheritance. As a general rule, the. The real right of inheritance is acquired by
10-year statute of limitations (2512 No.1).

The special case concerns the putative heir who has obtained. Resolution
administrative or judicial of effective possession, who acquires the real right of inheritance
in 5 years (article 1269 in relation to article 704).

Short-term prescriptions.
The Code distinguishes between the presumptive prescriptions of payment and the prescriptions.
specials.
Presumptive payment prescriptions:

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 We distinguish within this type of prescription those that prescribe in three, two
and a year.
• Three years: Actions in favor or against the treasury expire in 3 years.
municipalities derived from all kinds of taxes (2521 inc 1º).
• Two years: The fees of judges, lawyers, and attorneys prescribe in two years.
the doctors and surgeons, the directors or teachers of schools and colleges, the
of engineers and surveyors and in general of those who practice any profession
liberal (2521. Inc. 2nd).
• One year: The action of merchants, suppliers, and artisans prescribes in one year.
for the price of the items sold at retail.

Special prescriptions.
Article 2524 provides:
The short time prescriptions to which special actions are subject that arise
of certain acts or contracts, are mentioned in the respective titles, and also run
against any person; unless another rule is expressly established.

Which are those?

Prescribe in 6 months.
• The act of violent dispossession (928).
• Redhibitory action in the sale of movable things (1866).

Prescribe in 1 year.
• Possessory actions (920).
• Action for defects of a lesser value (1869).

Prescribe in 4 years.
• The action for reform of the will (1216).
• The action derived from the repurchase agreement (1885).
• The action to pursue civil liability arising from a crime or quasi-crime
(2332)

Interruption and suspension of special actions.

The interruption of short-term prescriptions occurs according to the rules

general.

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 As a general rule, it is not suspended. Exceptionally, the rescission action (nullity
suspended in favor of the incapacitated. That is, the 4 years to request annulment
relatives, begin to run from the time the incapacity has ceased.
If the holder of the action relating to the action dies, the action is suspended in favor of the
minor heirs, until they reach the age of majority, at which point time
what remained for his cause to complete the four years, continues running (1691 and 1692).
The above is always with a limit of 10 years counted from the celebration of the act or
contract, every time during that time, until absolute nullity is cured.
If the legitimist was incapacitated, the four years of the action to reform the will
they only start to run once the heir reaches the age of majority or that
recover the free administration of their assets in the case that they are declared incapacitated
(1216).

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