페이지 이미지
PDF
ePub

TITLE IV.

Extinction of Obligations.
Chapter I. Performance.

II. Offer of Performance.
III. Prevention of Performance or Offer.
IV. Accord and Satisfaction.

V. Novation.
VI. Release.

CHAPTER I.

Performance.

Section

Section 1473. Obligation extinguished. 1476. Effect of direction by credi1474. Performance by one of

tor. several joint debtors.

1477. Partial performance. 1475. Performance to one of joint 1478. Payment, what. creditors.

1479. Application of general per

formance. 1473. Full performance of an obligation, by the party whose duty it is to perform it, or by any other person on his behalf, and with his assent, if accepted by the creditor, extinguishes it.

1474. Performance of an obligation, by one of several persons who are jointly liable under it, extinguishes the liability of all.

1475. An obligation in favor of several persons is extinguished by performance rendered to any of them, except in the case of a deposit made by owners in common, or in joint ownership, which is regulated by the title on deposit.

1476. If a creditor, or any one of two or more joint creditors, at any time directs the debtor to perform his obligation in a particular manner, the obligation is extinguished by performance in that manner, even though the creditor does not receive the benefit of such performance.

1477. A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof, if the benefit of such performance is voluntarily retained by the creditor, but not otherwise. If such partial performance is of such a nature that the creditor cannot avoid retaining it without injuring his own property, his retention thereof is not presumed to be voluntary.

1478. Performance of an obligation for the delivery of money only, is called payment.

1479. Where a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally applicable to two or more of such obligations, such performance must be applied as follows:

One. If, at the time of performance, the intention or desire of the debtor that such performance should be opplied to the extinction of any particular obligation, be manifested to the creditor, it must be so applied.

Two. If no such application be then made, the creditor, within a reasonable time after such performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of such performance; except that if similar obligations were due to him both individually and as a trustee, he must, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion; and an application once made by the creditor cannot be rescinded without the consent of the debtor.

Three. If neither party makes such application within the time prescribed herein, the performance must be applied to the extinction of obligations in the following order; and, if there be more than one obligation of a particular class, to the extinction of all in that class, ratably:

1. Of interest due at the time of the performance.
2. Of principal due at that time.
3. Of the obligation earliest in date of maturity.

4. Of an obligation not secured by a lien or collateral undertaking.

5. Of an obligation secured by a lien or collateral undertaking. 1873–239.

CHAPTER II.

Offer of Performance. Section

Section 1485. Obligation extinguished by 1497. Thing offered to be kept offer.

separate. 1486. Offer part performance. 1498. Performance condition pre1487. By whom to be made.

cedent. 1488. To whom to be made. 1499. Written receipts. 1489. Where offer made.

1500. Extinction pecuniary obli1490. When offer must be made. gation. 1491. Same.

1501. Objection to mode. 1492. Compensation after delay. 1502. Title to thing offered. 1493. Offer in good faith.

1503. Custody thing offered. 1494. Conditional offer.

1504. Effect of offer on accesso1495. Ability, willingness essen

ries of obligation. tial.

1505. Creditor's retention thing 1496. Production not necessary. he refuses to accept.

1485. An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation.

1486. An offer of partial performance is of no effect.

1487. An offer of performance must be made by the debtor, or by some person on his behalf and with his assent.

1488. An offer of performance must be made to the creditor, or to

any one of two or more joint creditors, or to a person authorized by one or more of them to receive or collect what is due under the obligation, if such creditor or authorized person is present at the place where the offer may be made; and if not, wherever the creditor. may be found. 1873–240.

1489. In the absence of an express provision to the contrary, an offer of performance may be made, at the option of the debtor:

1. At any place appointed by the creditor; or,

2. Wherever the person to whom the offer ought to be made can be found; or,

3. If such person cannot, with reasonable diligence, be found within this state, and within a reasonable distance from his residence or place of business, or if he evades the debtor, then at his residence or place of business, if the same can, with reasonable diligence, be found within the state; or,

4. If this cannot be done, then at any place within this state.

1490. Where an obligation fixes a time for its performance, an offer of performance must be made at that time, within reasonable hours, and not before nor afterwards.

1491. Where an obligation does not fix the time for its performance, an offer of performance may be made at any time before the debtor, upon a reasonable demand, has refused to perform.

1492. Where delay in performance is capable of exact and entire compensation, and time has not been expressly declared to be of the essence of the obligation, an offer of performance, accompanied with an offer of such compensation, may be made at any time after it is due, but without prejudice to any rights acquired by the creditor, or by any other person, in the mean time.

1493. An offer of performance must be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor.

1494. An offer of performance must be free from any conditions which the creditor is not bound, on his part, to perform.

1495. An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer.

1496. The thing to be delivered, if any, need not in any case be actually produced, upon an offer of performance, unless the offer is accepted.

1497. A thing, when offered by way of performance, must not be mixed with other things from which it cannot be separated immediately and without difficulty.

1498. When a debtor is entitled to the performance of a condition precedent to, or concurrent with, performance on his part, he may make his offer to depend upon the due performance of such condition.

1499. A debtor has a right to require from his creditor a written receipt for any property delivered in performance of his obligation.

1500. An obligation for the payment of money is extinguished by

a due offer of payment, if the amount is immediately deposited in the name of the creditor, with some bank of deposit within this state, of good repute, and notice thereof is given to the creditor.

1501. All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the person making the offer, and which could be then obviated by him, are waived by the creditor, if not then stated.

1502. The title to a thing duly offered in performance of an obligation passes to the creditor, if the debtor at the time signifies his intention to that effect.

1503. The person offering a thing, other than money, by way of performance, must, if he means to treat it as belonging to the creditor, retain it as a depositary for hire, until the creditor accepts it, or until he has given reasonable notice to the creditor that he will retain it no longer, and, if with reasonable diligence he can find a suitable depositary therefor, until he has deposited it with such person.

1504. An offer of payment or other performance, duly made, though the title to the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof.

1505. If anything is given to a creditor by way of performance, which he refuses to accept as such, he is not bound to return it without demand; but if he retains it, he is a gratuitous depositary thereof.

CHAPTER III.

Prevention of Performance or Offer. Section

Section 1511. What excuses performance. 1514. Same. 1512. Effect prevention perform- 1515. Effect refusal to accept beance.

fore offer.

1511. The want of performance of an obligation, or an offer of performance, in whole or in part, or any delay therein, is excused by the following causes, to the extent to which they operate:

1. When such performance or offer is prevented or delayed by the act of the creditor, or by the operation of law, even though there may have been a stipulation that this shall not be an excuse;

2. When it is prevented or delayed by an irresistible, superhuman cause, or by the act of public enemies of this state or of the United States, unless the parties have expressly agreed to the contrary; or,

3. When the debtor is induced not to make it, by any act of the creditor intended or naturally tending to have that effect, done at or before the time at which such performance or offer may be made, and not rescinded before that time.

1512. If the performance of an obligation be prevented by the creditor, the debtor is entitled to all the benefits which he would have obtained if it had been performed by both parties. 1873—240. 1514. If performance of an obligation is prevented by any cause excusing performance, other than the act of the creditor, the debtor is entitled to a ratable proportion of the consideration to which he would have been entitled upon full performance, according to the benefit which the creditor receives from the actual performance.

1515. A refusal by a creditor to accept performance, made before an offer thereof, is equivalent to an offer and refusal, unless, before performance is actually due, he gives notice to the debtor of his willingness to accept it.

CHAPTER IV.

Accord and Satisfaction. Section

Section 1521. Accord, what.

1523. Satisfaction, what. 1522. Effect of accord.

1524. Part performance.

1521. An accord is an agreement to accept, in extinction of an obligation, something different from or less than that to which the person agreeing to accept is entitled, 1873—240.

1522. Though the parties to an accord are bound to execute it, yet it does not extinguish the obligation until it is fully executed.

1523. Acceptance, by the creditor, of the consideration of an accord extinguishes the obligation, and is called satisfaction.

1524. Part performance of an obligation, either before or after a breach thereof, when expressly accepted by the creditor in writing, in satisfaction, or rendered in pursuance of an agreement in writing for that purpose, though without any new consideration, extinguishes the obligation. 1873—241.

CHAPTER V.

Novation. Section

Section 1530. Novation, what.

1532. Novation a contract. 1531. Modes of novation.

1533. Rescission of novation. 1530. Novation is the substitution of a new obligation for an existing one.

1531. Novation is made:

1. By the substitution of a new obligation between the same parties, with intent to extinguish the old obligation;

2. By the substitution of a new debtor in place of the old one, with intent to release the latter; or,

3. By the substitution of a new creditor in place of the old one, with intent to transfer the rights of the latter to the former.

1532. Novation is made by contract, and is subiect to all the rules concerning contracts in general.

1533. When the obligation of a third person, or an order upon such person is accepted in satisfaction, the creditor may rescind

« 이전계속 »