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209 Cards in this Set

  • Front
  • Back
Definition of obligations
a legal relationship whereby a person called an obligor is bound to render performance in favor of another, the OEE. Performance may consist of giving, doing, or not doing something.
what three things form an obligation
legal bond
acitve subject
the creditor, r OE, whom has the right the demand performance
passive subject
the OR, who is under duty to perform
legal bond
obligation is really a tripartitte relationship between the creditor, the debtor, and the state
what can be the object
to give
to do
to not do
the legal relation is an obligation when it geives the OE a _
credit (real right)
In an obligation to give, the OR _
binds himself to transfert to the OE the ownership of the thing or grant him some other real right ina thing
In an obligation to do,
the OR binds himself to carry out or execute an act
In an obligation not to do, the OR
binds himself to abstain from some action
what are teh general effects of contracts for each party:
OE ahs the right to:
1.specific performance
2.cause performance to be rendered by another
3. recover damages
OR has the right to:
1.obtain discharge
2. contest if extinguished or modified
real right
requires only one subject the holder, it is absolute and against the world
credit rihgt
jsut one end of an obligation; has a passive and an active subject; it is a personal right
what are the consequences of being a patrimonial right>?
1. has a pecuniary value
2.may assign
3.can protect from assignement in contract
natuarl obligations
arise from circumstances in which the law implies a particular moral duty to render a performance; do not produce the OE's right to enforce the performance by the OR; but if the OR promises to perform his natural obligation, it can then turnn into a civil obligation and be enforced
civil obligation
produces all the ffects of a legal obligation, enforceable by legal action
moral duty
duty of the conscience; may rise to the level that one feels he owes a debt, and then it becomes a natural obligation
to give rise to a natural obligation, moral duty must: felt toward a particular person
2.that person truly feels that he owes a debt
3.the object must have pecuniary value
4.a recognition of the obligation by the person who regards himself as the OR
5. fulfillment of the duty does not impair public order
a natural obligation serves as the _ of an obligation
a natural obligation is not enforceable, but whatever has been freely performed _
may not be reclaimed
IF the debtor in a natural obilagation only pays partof what he owes,
the creditor mustbe satisfied with that, he has no action to demand the balance
real obligation
duty correleative and incidental to a real right; transfers to a universal or particular succesor; particular successor can renounce and abandon
heritable obligation
obligation is heritable when its performance may be enforced by a successor of the OE or against a succesort of the OR
strictly personal
obligations is strictyl personal when its performance can be enforced only by the OE or only against the OR; when teh performance requires special skill or personal services; or when the benefit was intended exlcusively for the OE, it is personal for that OE
conditional obligation
dependent upon a n uncertian event (susepnsive and resolutory)
suspensive condition
obligation may not be enforced until the uncertain event occurs
the obligation may be immediately enforce, but will come to an end when the uncertain event ends
poetestative conditions
depends solely on the whim of the OR

if suspensive, it is null
if resolutory, it must be performed in good faith
period for the performance of the obligation is a period of time either certain or uncertain

certian when fixed

uncertain when not determinale. in which case it is reasonable time
who may renounce a term?
the party whose exclusive beneift it was established for.

If benefit both, cannot renounce
If the OR has performed before the end of the term
he may not recover performace
If a party is later found to be insolvent, (term)
the term is regarded as nonexistent, unless it is an obligation ot render services
several obligations
each of different ORs (OEs) owe separate performance to one OE(OR); each has a different object; produces the same effects as a separate obligation to each
joint obligations
owe one performance, but noe bound for the whole; object must be divisible
if the object is indivisible amongst several, it is
test for joint or several
depends upons the intention of the parties as revealed by the language of teh contract and the subject matter to which it refers
an obligation is divisible if _
the object of performance is susceptible of division
active solidarity
each OE has the right to demand the whole performance fomr the common OR
passive solidarity
when each OR is liable for teh whole performance; performance by one relieves the others
Can a solidary OR request division of the debt?
no, but can seek indemnification or contribution
soidarity is not presumed, it arises only from
a clear expressionof the party's intent;
the law
renunciation of solidarity by the OE in faovr of one or more OR must be
remission of debt
benefits all solidary OR in teh amount of the portion of that OR

surrender to one an instrument evidenicng the obligations gives rise to a presumption that the remission intended to benefit all
IF a solidary OR is found to be insolvent, _
the others must bear the loss; and any OR in whose favor solidarity has been renounced must contribute to make up for loss
renunciation of solidarity is
basically splitting off one party and keeping the rest solidary
soidarity is not presumed, it arises only from
a clear expressionof the party's intent;
the law
renunciation of solidarity by the OE in faovr of one or more OR must be
remission of debt
benefits all solidary OR in teh amount of the portion of that OR

surrender to one an instrument evidenicng the obligations gives rise to a presumption that the remission intended to benefit all
IF a solidary OR is found to be insolvent, _
the others must bear the loss; and any OR in whose favor solidarity has been renounced must contribute to make up for loss
renunciation of solidarity is
basically splitting off one party and keeping the rest solidary
Assumption b/w OR an third
OR and 3rd cna agree to assumption in writing;
they are solidarily liable
3rd bound only to extent of his assumption
assunmption b/w OE and third
may agree to assumption in writing
substituion of pone person to the rights of another; cna be conventional or legal
effects of subragation
3rd party performs
obligation transferred and original Oe released (unless only paid in part; then his rights for the balance come before new OE)
3rd takes OE's place
conventional subrogation by the OE
OE receives performance from 3rd, subrogates his rights w/o need for OR consent;
no matter the amount that the subrogee paid to the original OE, he is entitled to recover the full amount;
does not have to be in writing
conventional subrogation by the OR
OR pays debt with money borrowed for that purpose;
may subrogate the lender wihtout OE's consent;
must be in writing expressing that the purpose of the loan is to pay the debt
subrogation by law happens when
1. in favor of an OE who pays another OE whose right is preferred (chess game)
2. in favor of an OR who pays a debt he owes with or for others and who has recourse agaisnt those others as a result of payment
when subrogation happens by law, the new OE may revover from the OR
only to the extent of the performance rendered to the original OE; he cannot invoke ocnventional subrogation
Who ahs the burden of proof
the movant
when teh law requires a written form, it may not be proven by
testimony or presumption
authentic act
executed before notary and two witnesses

signed by all parties

if fails this, still good as act under private signature;

constitutes full proof of the agreement it contains
when an act under private signature is produced, failure ot deny signature is
acknowlegment of it;

must either accept or deny
declaration whereby a person cures the relative nullity of na obligation
must express substance of obligation and evidence of intent to cure
tacit confirmation can occur from voluntary performance
person gives consent ot an obligation incurred on his behalf without authority

tacit ratification can occur when party accepts benefit of obligation with knowledge of of an obligation incurred on his behalf by another
tranfer of immovable property must be made by _
authentic act or by private signature
oral transfer is good between parties when property delivered
good to world when filed for registry
if writing is not required by law for evidence what is requireed for proof
if <500 dollars, may be proved by competent evidence

if >500 dollars, may be proved by at least one witness and other corroborating evidence

Party can be their own witness, but not corrorborating evidence
testimonial evidence may not be admitted to neagate or vary _
authentic act or act under private signature; unless ot prove:
1.vice of consent
3.written modified by later valid oral agreemt
judicial confession
declaration made by a party at a judicial proceeding;

constitutes full proof agaisnt he who made it
(can recognize obligation stupid)
performance by the OR _
extinguishes the obligation
performance can be rendered by a 3rd party...
even against the will of the OE, unless the OR or the OE has an interest in performance only by the OR
an obligation can be extinguished by the transfer of a thing is not extinguished unless that thing is _
validly transferred
performance rendered to the OE
must be rendered to the OE or person authorized by him

but can be cured by ratification;
or if the OE received benefit, valid for the amount of benefit (even if the OE does not have capacity)
partial perforance
an OE may refuse partial performance

but if obligation to pay money is disputed in part, and OR willing to pay undisputed part, cannot reject, but has right ot claim disputed part
accord and satisfaction
if the debtor pays part and says it is the whole, if it is accepted the obligation is extinguished
place of performance
shall be rendered in place stipulated or intended

if not there, to give rendered at place where obligation arose
all other obligation sat domicile of OR
expenses required ot render performance must be paid by the
an OR who owes several debts ot an OE
has the right ot impute to debt he chooses if expressed or inferred

however, cannot impute to debt not yet due without OE's consent
payment is imputed as follows:
1. on the basis of whether a particular debt is due
2. to the one that has interest
3. to the one that is secured
4. to the one that was due first
5.If all equal, then imputed proportionally
If the OE imputes payment to a debt other than the one intended by OR, the OE is
in bad faiht
tender and deposit
if the OE refuses to accept delivery of a thing or sum of money, the tender of the performance, followed by deposit to the court, produces all the effects of performance when tender declared valid by court
tender is valid _
when teh requirements for a valid performance, such as capacity, amount, and kind of performance are fulfilled
notice as tender
if the OR knows or has reason to know that the OE will refuse performance, notice to OE that OR ready to perform has the same effect as tender
If deposit is accepted by OE, or if the court orders the performance vaild,
the expense of deposit paid by OE
an OR is not liable for failure to perform when it is caused by a fortuitous event that makes performance impossible, unless:
1. when the OR has assumed the risk of such an event

2.if the event occured after Or in default

3.if the event preceded by OR's fault, without which the failure would not have occured
fortuitous event=
one that, at the time the contract was made, could not have reasonably been foreseen
when the event ahs made a party's performance impoosible in part, the court can
reduce the other party's couter performance proportionally or dissolve
IF a contract is dissolved after OR has performed in part, the OE is bound _
to the extent that he was enriched by the partial performance
novation requires
existence of a debt to be extinguished

creation of a new debt

intent of the parties to make a novation
novation is
the extinguishment of an existing obligation by the subsititutionof a new one;

novation is not presumed, it must be clear and unequivocal
objective novation
new performance or cause subsituted or the parties expressly declare novation;

if any substantial part of original performance is still owed, no novation

if mere modification w/o intent, no novation

if modification w/ intent, novation occurs
subjective novation
new OR substituted for prior OR who is discharged by OE, even without original OR's consnet

like assignment, but here the OR is assigning, and he is released
Novation has no effect when
the origianl obligation does not exist, or is absolutely null
if only relatively null, the novation is valid, provided that the OR of the new one new of the defect of teh old one (good faith)
a novation by OE and a solidary obligors _
releases the others, unless it stipulates that they are still liable (then must consent)
delegation of performanece
delegation by OR to 3rd is effective when 3rd binds,

it effects novation only when teh OE expressly discharges teh original
remission of debt
forgivenss of creditor;

may be express or tacit

Oe's voluntary submission of instrument gives rise to presumption

effective when received
agreement by two or more parties where obligations are created, modified, or extinguished
unilateral contract
one party obligated and teh other is not (donation)
in a bilateral contract, the cause is _
the other parties reciprocal performance

so if one does not perform, the obligation of the other lacks cause
onerous contract
when each of teh parties obtains an advantage in exchange for obligation
gratuitous contract
one party obligates himself towards another for the beneift of teh latter, without gaining an advantage himself
commutative contract
when teh performance of the obligation of each party is correlative to the performance of teh other
aleatory contract
becasue of its nature or according to the partie's inent, the performance of either partie's obligation, or the extent of performacne, depends on an uncertain event
four requirments for a contract
1. capacity
2. consent
3. cause
4. object
upon rescission of contract for incapacity, the court may
restore or compensate
consent =
consent to terms and conditions, intending to have legal effects
unless otherwise specified in the offer, there nee not be conformity
betweent eh method of opffer and acceptance
3 ways to express consent
1. express
2. implied
3.if silent, circumstances must be clear and unequivocal to corroborate presumption of intent
it is not enough to say what you will do as an offer, you muat
say what you will do it for
a valid offer must
1. be declared
2. be addressed to OFE
3. be sufficiently precise and complete
4. be accompanied by intent to bind himself
if an offer lacks precision it is an _
an offer of reward to the public is _
binding even if the one who performs does not know of the offer

but it can be revoked any time before completion of the act
irrevocable offer
if OFR has named time within which to be accepted, then bound by that time (unless past reasoanble)

if manifests intent ot leave open, then reasonable
things to consider for reasonable time
mode of communication
nature of proposed contract
nature of contractual object
party's confession
acceptance of an irrevocable offer is effective when _
received by OFR
if an offer is no irrevocable, then
it is revocable at any time before acceptance
unless otherwise specified by the offer or law, an acceptance of a revocable offer made in manner and medium suggested by offer or in a resaonble manner and medium is effective when
transmitted (mailbox rule)
an acceptance is reasoanble if
it it the one used in amking the offer or in customary in similar transactions
an offer expires by death or incapaity of either party if
before acceptance
option contract
contractual obligation to keep offer open

OFR must clearly indicate will to form, and the OFE must consent
differneces bewteen option and irrevocable
1. option assignable
2.option contract gives rise to contractual obligation, whereas, irrevocable gives rise to legal obligation
option must be specified either in _
the option contract or to the contract it is linked to
if you pay consideration to keep irrevocable offer open,then
it is an option
an option must be _ (form)
_ rather than consideration is a requisite for a vaild option
whetehr express or implied, an acceptance must be _
capable of being known
for an irrevocable, if both acceptance and rejection received at same time, then it is _
the latest expression of intetn
if revocable, and acceptance sent first, a rejection received after acceptance transmited is
offer from OFe to dissolve
if revocable, rejection sent before acceptance, but acceptance received first, then
acceptance effective upon transmission, but rejection only unpon reception
revocation is effective
when received by OFE
if revoable, rejection effective
when received by OFR
promissory acceptance
express acceptance entailing OE's promise
effective acceptance
OFE does the act without making promissory aceptance
If offer revocable, the contract is formed (performance)
at beginning of performance

must be to complete performance
if the OFE beings performance and his intent is to complete, the offer
is no longer revocbale, and teh OFE bound to complete

if he fails, liable for damages
IF the OFR only interested in completed performance, and the OFE is doubtful of accomplishing, then
mere commencement does not implyu promise to complete

(good faith applies)
IF the parties are at a distance, teh OFE must notify of beginning of performance unless
the OFR should know of begginnin gof performance

if OFE fails to notify, still bound, but may be liable for damages
a rejection
is an expression of teh OFE's intention to not accept

puts an end to his ability ot accept
in a matter of sale, teh ontract is perfect upon the parties consent of _
the thing and the price
in a lease, the essential terms are _
thing to be let out, and the rent to be paid
that which does not conform to the offer is _
a counter (generally)

might be request for modification or reconsideration
to make a binding contract, it is enouhgh that parties agree on _
essential terms
a statement by OFE that nonconforming goods are an accomodation may _
release the OFE of contractual liablity
if terms are different betweent eh offer and acceptance_
will proceed with terms agreed upon and fill in with gap fillers or suppletive laws
the presumption between parties is that they do not intend to be bound until _
contract is executed in a certain from (intent to memorialize)
the reason why a part obligates himself

may obligate himself when he knew or should have known that the promise would induce the othre party to reasonably rely on it to his detriment
an obligation cannot exist without

can have it, then it fails
the cause of an oblgiation is unlawful when
the enforcment of the obligation would produce a result prohibited by law or against public policy

if so, it is absolutely null
turpitude paralyzes restitution
if both parties know of unlawfulness of contract, no restitution

the court leaves them to their own devices
three standards of detrimental reliance
1. a clear and unequivocal promise was made
2. justifiable reliance on that promis
3. a change in one's position to one's detriment because of that reliance

detriment is not when they act on a promise, but
when the promise is denied
damnum emergens
dmages for the loss actually sustained, the reliance interest
lucrum cessans
the profit which has been deprive, expectation interest
in detrimental reliance, there are two types of recoverable damages
damnum emergens
luicrul cessans
consent is vitiated by vice only when_
it concerns a cause without wihich the obligation would not ahve been made and that cause was known or should have been known to the other party
a party may not avial himself of his error if _
the other party is willing to perform the contract as intended by the party in error
a party who obtains rescission on the grounds of his own error is liable to the loss sustained by the other party unless_
the latter knew or should have known of the error

rescission may be refuse, and then compensation is given
fraud in french
dol malus
a misrepresentation or suppression of the truth made with the intentiont o either obtain an unjst advantage or to casue a loss or inconvenience for the other
standard for effects of fraud
fraud does not vitiate conudct whent the party against whom the fraud was directed could have ascertained the truth without difficulty, inconvenience, or special skill

unless there was a relationship of confidence here
fraud commited by a thrid person _
vitiates consent if the other party knew or should have known of fraud
sale of an immovable can be rescinded for lesion when
the price is less than one half the fair market value of the immovable
a co-owner may claim lesion when_
the value is less than 1/4
court will accept lesion when
it is linked to another vice
can be anything that is lawful, possible, and derermined or determinable
possibility as to object is
according to the nature of the object not the parties ability
the object must be determined as to _
price can be filled in if determinable
if the determination of the quantity of an object has been left ot 3rd, it is
future things can be the _of a contract
object, but not the succession of a living person
the object cna be that a 3rd will perform, if so
the pormisor is liable if the 3rd does not perform
if there is a third party beneficiary,
the beneficiary or stipulator can demand performance
promesse du porte fort
third party, expressing consent, substitutes himself for a party to a contract and therefor binds himself
stipulation pour autrui
third party derives benefit from a contract made by others
upon an obligors failure to deliver a thing, or not to do, or to execute and instrument, the court _
shall grant specific performance plus damages for delay
upon failure of obligors failure to do , the court_
may grant specific performance
damages for delay in the performance of an obligation are owed from time _
the OR is put in default
other damages are owed from the time _
the OR has failed to perform;
allows compensation for the delay
the OR is put into default by
1. the arrival of a fixed or clearly determinable term the OE, but not before performance due
an OE may put an OE into default by
written request for performance, oral request in front of two witnesses, or by filing suit for performane, or specific provision of contract
when put into default, the risk
shifts to OR
in the case of reciprocal obligations, the OR of one may not be put into default unless
the obligor of the ohther has performed or is ready to perform
3 reqs. for damages
1. OE injured or loss
2. OR is at fault in on e of the three senses (delay, fuaulty, or non performance)
3. this fault caused damage
dames are measured by _
loses sustained and deprived profit
an obligor in good faith is liable only for
the damages that were foreseeable at the tiem the contract was made
an obligor in bad faith is liable for
all damages
nonpecuniary damages can be granted when
1. the contract inteded to satisfy nonpecuniary interst
2. the OR knew, or should have known that his failure to perform would cause that kind of loss
3.regardless of the contract, if teh OR intendedt o cause, then damages recoverable
An OE must make reasonable efforts to _
mitigate damages, or they will be lessened
stipulated dmages clause
can stipulate in contract, this stipul;ation gives rise to an accessory obligation
moratory damages
dmages from after default
if a stipulated damages clause found, the OEE may demand
performance or stipulated damages, but not both, unless damages stipulated are for delay only
burden of proof on damages is on _
stipulated damages may not be modified unless
are are so unreasonable as to be against public policy,
there needs to be a reduction for partial performance
non-pecuniary interest
one intendedt o satisfy an interest of sentimental, spiritual order
when the OR fails to perform, the OE has the right ot dissolution and can seek damages
a contract may not be dissolved if _
the OR has rendered substantial part of perfromance nad the part not rendered does not substantially inpair the interest of the OE
upon partys failure to perform, the other may serve him notice to _
perform within certain time, and if it is not, the contract will be dissolved
when a delayed performance is no longer of value to the OE, or it is evident that teh OR will not perform, _
may treat as dissolved and don't have to give notice
upond dissolution, the parties _
restored to before.
If substantial partial performance, can recover.
If insubstantial partial, cannot recover
either party to a commutative contract can refuse to perform if_
the other has filed to perform or does not offer to perform his own at the smae time if due simultaneouls
my mutual agreeemnt, the contract does not represent the true intent of the parties
absolute simulation
parties intended no legal effects between them
relkative simulation
parties intend the contract ot have effects, but different from those int eh contract
the parties true intent is in a separate writing
absolute nullity of contract
one that is agaisnt public order; may be invoked by any person or declared by court
relative nullity
may not be declared by court
if a contract is declared null, the parties_
are restored to pre contract situation

includes fruits and revenues
revocatory action
OEE has right ot annul act or failure ot act of OR if would incresase OR;s insolvent

does not apply to OR's payment of a just and due debt

can cancel grautitous and onerous actions;
but not one in teh course of OR's regular business;
must be brought within one year; nmust join both 3rd and OR
an OR is isolvent when the tola of liabilities exceeds teh totla of his assets
onerous contract made by OR
may be annulled by OE if the person knew it would increase his insolvency

if he didn;t know, entitled to whateever he gave OR.

good faith presumed if 4/5 fair market value
oblique action
OE may sue 3rd in teh name of OR if OR did not bring action, unless the rigth is strictly personal to the OR