The Methods of Dissolving Obligations Arising from Agreements
1. Among the methods of dissolving obligations arising from agreements, and
so of terminating the duties thence derived, the most natural is the
fulfillment or payment of that in regard to which the agreement was made.
Regularly it is the debtor who is bound to pay; but, if the amount is furnished
by another in the name of the contractor of the obligation, this last is
dissolved; provided it does not otherwise make a difference, by whom
fulfillment is made. If, however, one pays for another with no intention to
make him a present, one can recover from him the amount expended. Moreover,
payment must be made to the creditor, or to a person whom he has delegated to
receive the debt in his name. And finally one must perform or pay the very
thing agreed upon (not something else in its place), entire, not mutilated, not
a mere part, not divided, and at the place and time agreed upon. Yet the
consideration of the creditor or the inability of the debtor may compel the
former to put off the date of payment, or to split the amount into instalments,
or even to accept one thing for another.
2. Obligations are also brought to an end by compensation, which is a
balancing of credit and debit, that is, when a debtor is freed because the
creditor himself evidently owes him something of the same kind and value. For,
inasmuch as equality is identity, especially in things that are replaceable,
and since, if the debt is mutual, I must immediately return the same amount
that I have Just received, therefore, in order to avoid useless payments, it is
most convenient for each to make payment by retaining his own. It is evident,
moreover, that compensation can be applied properly to replaceable things of
the same sort, the time for whose payment is present or past; but not to other
things, or performances of a different nature, unless they are both reduced to
an estimate of their value, that is, to money.
3. An obligation is further terminated by release or remission on the part
of him to whom the debt was due, and whose interest it was to have the
obligation fulfilled. This is brought about either expressly, by giving signs
that indicate consent, for example, a fictitious acknowledgment, restoring or
destroying the papers; or else tacitly, as when one himself hinders the payment
of the debt, or is responsible for such hindrance.
4. Obligations consisting in a performance on both sides are also commonly
dissolved by mutual dissent, if nothing has yet been done, unless positive laws
forbid. But when something has already been performed by the one party, a
release must be given by him, or there must be some other adjustment.
5. Moreover, an obligation is not so much dissolved as broken off by the
treachery of one party or the other. For when one does not perform what was
agreed, the other is not bound to perform what he undertook in view of such
performance. For in agreements the items of things to be performed are implied
as a condition in the subsequent items, as if one had said, "I shall
perform this, if you first perform that."
6. Obligations also expire when the status, upon which alone they depended
at the time, has been changed either by him who was bound to perform, or by him
to whom performance was due.
7. By time itself obligations expire, if their duration was dependent upon
some point of time, unless that duration shall have been extended by express or
tacit agreement of the parties. But the power to demand fulfillment of the
obligation must have existed during that period.
8. Finally, obligations which have their roots in a man's person are
dissolved by death. For the subject having been taken away, the accidents also
must be extinguished. But often an obligation is continued in the survivors of
deceased persons, and this either because the survivor out of pious duty, or
for other reasons, has taken upon himself to fulfill the obligations of the
deceased; or else because the obligation must be satisfied out of the
possessions of the deceased, which have passed with that burden to the heir.
9. By substitution, one presents, with the consent of the creditor, one's
own debtor, that he may pay the debt instead of one's self. In this indeed the
creditor's consent is required, but not that of that third person, whom I can
assign, even without his knowledge and consent, to the other, if he is willing.
For it makes no difference to which of the two one pays, but a great difference
from whom one demands the payment of a debt.
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