Taking on obligations throughout our lives is an almost unavoidable scenario. On some occasions, we will have the option of choosing the terms on which that obligation is carried out; on others, this will not be possible. At the same time, there may be situations in which we need to be advised by expert lawyers to help us understand or settle certain matters.
With the support of the law of obligations and contracts, all these legal relationships and their implications can be regulated. In any case, if you have doubts about these concepts or need specialist advice, do not hesitate to contact BBMabogados.
What is an obligation?
It is the bond that links the creditor’s right to demand that the debtor comply with a particular conduct and the debtor’s duty to fulfil it. In other words, it is the relationship that arises between a person who has the right to receive something in their favour and another who is committed to carrying out what they undertook.
In the event of a breach, the creditor is vested with the powers to assert their right, while the debtor must bear the consequences of their failure.
Classification of obligations in Santander
On this point we should note that there are many classifications; we will list the most common ones:
BY THE NATURE OF THE PERFORMANCE
Obligations may be to give, which basically consist of delivering an asset; to do, which involve carrying out an act; or not to do, which, as can be deduced, involves an abstention.
With regard to obligations to do, there may be the particular feature of intuitu personae obligations, that is, where the person responsible for fulfilling the performance must be a specific individual, with no possibility of being replaced by another. For example, when a person commissions a renowned sculptor to create a piece because they want the unique skills of that artist.
BY THEIR INDEPENDENCE
They may be Principal, when the obligation has its own existence, that is, it does not depend on another obligational relationship; and Accessory, when its existence depends on a principal one.
The principal obligation is the one the debtor has towards their creditor, for example, a loan, and the accessory one would be that undertaken by a guarantor in order to secure that obligation. In these cases, if the principal obligation is declared void, the accessory one will inevitably be void as a consequence. But if the accessory one were void, the principal obligation would still stand.
BY THE PLURALITY OF PARTIES
They may be divisible, in which case each of the creditors can only claim satisfaction of the part of the debt corresponding to them and the debtors are only bound to pay their share of the debt.
Indivisible, when the obligations are not capable of division or partial performance, whether by legal mandate, by the nature of the performance, or by the way the obligation was considered when it was contracted.
Joint obligations are governed by the rules of divisible obligations. Whereas joint and several obligations refer to when the performance is owed by several debtors or to several creditors and can be demanded in full from any of the creditors or paid by any of the debtors.
Sources of obligations
Obligations arise from the law, from contracts and quasi-contracts, from court decisions, and from unlawful acts and omissions or those involving any kind of fault or negligence, as established by the Civil Code.
For now, we will deal with contracts as a source of obligations.
THE CONTRACT IN SANTANDER
As with the definition of an obligation, that of contracts is not agreed upon either. Nevertheless, in general terms, it can be defined as the agreement of wills between two or more persons, on a matter of legal interest, by which they regulate their legal relationships. In this sense, it is one of the quintessential sources of obligations.
Characteristics of contracts
Contracts may be:
Unilateral, that is, only one of the parties is bound towards the other, without the latter being bound to any counter-performance. They may also be bilateral, when the parties are bound reciprocally.
For valuable consideration (onerous), when the benefit obtained by one of the parties results only from carrying out a performance to which it is bound towards the other; and gratuitous, when one of the parties obtains an advantage independently of any performance on its part.
Consensual, they take effect from the moment the parties reciprocally express their consent; and real, they take effect from the moment one of the parties delivers the thing that is the object of the contract to the other.
There are other types of contracts, but here we refer to the most common ones.
Breach of obligations. What should be done?
This point concerns the cases in which the debtor has not fulfilled their duty towards the creditor. The debtor may incur this situation voluntarily (refusing to comply) or involuntarily, that is, when causes arise that are beyond their control.
In any case, the creditor can bring different legal actions to have their performance satisfied. An important role will be played here by the existence or otherwise of causes that excuse the debtor’s failure to comply, or by the existence of fault on their part.
As can be seen, this matter is extremely broad and any detail can cause problems. To avoid or mitigate any negative consequence, the advice of a lawyer will always be the best recommendation.
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