§ 833. Conditions precedent A condition precedent is one which is to be performed before some right dependent thereon accrues, or some act dependent thereon is performed. § 834. Conditions concurrent Conditions concurrent are those which are mutually dependent, and are to be performed at the same time. § 835. Conditions subsequent A condition subsequent is one referring to a future event, upon the happening of which the obligation becomes no longer binding upon the other party, if he chooses to avail himself of the condition. § 836. Performance of conditions necessary Before a party to an obligation can require another party to perform any act under it, he shall fulfill all conditions precedent thereto imposed upon himself and be able and offer to fulfill all conditions concurrent so imposed upon him on the like fulfillment by the other party, except as provided by section 837 of this title. § 837. Performance excused If a party to an obligation gives notice to another, before the latter is in default, that he will not perform the same upon his part, and does not retract the notice before the time when performance upon his part is due, the other party is entitled to enforce the obligation without previously performing or offering to perform any conditions upon his part in favor of the former party. § 838. Impossible or unlawful conditions A condition in a contract, the fulfillment of which is impossible or unlawful within the meaning of sections 1081-1085 of this title, or which is repugnant to the nature of the interest created by the contract, is void. § 839. Construction of conditions involving forfeiture A condition involving a forfeiture shall be strictly interpreted against the party for whose benefit it is created. Article D-Alternative Obligations 8851. Right of selection If an obligation requires the performance of one of two acts, in the alternative, the party required to perform has the right of selection, unless it is otherwise provided by the terms of the obligation. § 852. Loss of right of selection If the party having the right of selection between alternative acts does not give notice of his selection to the other party within the time, if any, fixed by the obligation for that purpose, or, if none is so fixed, before the time when the obligation ought to be performed, the right of selection passes to the other party. § 853. Indivisibility of alternatives A party having the right of selection between alternative acts shall select one of them in its entirety, and may not select part of one and part of another without the consent of the other party. § 854. Nullity of alternatives If one of the alternative acts required by an obligation is such as the law will not enforce, or becomes unlawful, or impossible of performance, the obligation is to be interpreted as though the other stood alone. Subchapter III-Transfer of Obligations § 871. Transfer of burden of obligation The burden of an obligation may be transferred with the consent of the party entitled to its benefit, but not otherwise. § 872. Transfer of rights arising from obligation A right arising out of an obligation is the property of the person to whom it is due, and may be transferred as such. This section does not authorize the transfer of a thing in action arising out of a tort against the person. § 873. Indorsement of nonnegotiable instrument A nonnegotiable written contract for the payment of money or personal property may be transferred by indorsement, in like manner as negotiable instruments. The indorsement shall transfer all the rights of the assignor under the instrument to the assignee, subject to all equities and defenses existing in favor of the maker at the time of the indorsement. Subchapter IV-Extinction of Obligations Article A-Performance § 891. Extinction by performance 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. § 892. Performance by a joint debtor Performance of an obligation by one of several persons who are jointly liable under it extinguishes the liability of all. § 893. Performance to a joint creditor An obligation in favor of joint creditors is extinguished by performance rendered to any of them, except in the case of a deposit made by joint owners, which is regulated by chapters 49 to 53 of this title on deposit. § 894. Performance as directed by creditor 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 the performance. § 895. Partial performance A partial performance of an indivisible obligation extinguishes a corresponding proportion thereof only if the benefit of the performance is voluntarily retained by the creditor. If the 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. § 896. Payment defined Performance of an obligation for the delivery of money only is called payment. § 897. Performance applicable to more than one obligation If a debtor, under several obligations to another, does an act, by way of performance, in whole or in part, which is equally appli cable to two or more of the obligations, the performance shall be applied as follows: (1) If, at the time of performance, the intention or desire of the debtor that the performance should be applied to the extinction of any particular obligation, is manifested to the creditor, it shall be so applied. (2) If no such application is then made, the creditor, within a reasonable time after the performance, may apply it toward the extinction of any obligation, performance of which was due to him from the debtor at the time of the performance; except that if similar obligations were due to him both individually and as a trustee, he shall, unless otherwise directed by the debtor, apply the performance to the extinction of all such obligations in equal proportion. An application once made by the creditor may not be rescinded without the consent of the debtor. (3) If neither party makes an application within the time prescribed herein, the performance shall be applied to the extinction of obligations in the following order: (A) interest due at the time of the performance; (B) principal due at that time; (C) the obligation earliest in date of maturity; (D) an obligation not secured by a lien or collateral undertaking; (E) an obligation secured by a lien or collateral undertaking. If there is more than one obligation of a particular class the performance shall be applied to the extinction of all in that class ratably. Article B-Offer of Performance § 911. Extinction by offer An obligation is extinguished by an offer of performance, made in conformity to the rules herein prescribed, and with intent to extinguish the obligation. § 912. Offer of partial performance An offer of partial performance is of no effect. § 913. Person required to make offer Only the debtor, or a person on his behalf and with his assent, may make an offer of performance. § 914. Person to whom offer may be made; place of offer An offer of performance shall be made to: (1) the creditor; (2) any one of two or more joint creditors; or (3) a person authorized by one or more of the creditors to receive or collect what is due under the obligation if the creditor or authorized person is present at the place where the offer may be made; and if not, wherever the creditor may be found. § 915. Place of offer 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: (2) wherever the person to whom the offer ought to be made can be found; (3) if the person to whom the offer ought to be made can not with reasonable diligence be found within the Canal Zone, 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 Canal Zone; or (4) if this cannot be done, then at any place within the Canal Zone. 8 916. Time of offer (a) Where an obligation fixes a time for its performance, an offer of performance may be made only at that time. (b) 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. § 917. Offer of compensation for delay 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 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 meantime. § 918. Good faith of offer An offer of performance shall be made in good faith, and in such manner as is most likely, under the circumstances, to benefit the creditor. § 919. Conditional offer An offer of performance shall be free from any conditions which the creditor is not bound, on his part, to perform. 8920. Ability and willingness to perform An offer of performance is of no effect if the person making it is not able and willing to perform according to the offer. 8921. Production of thing to be delivered 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. § 922. Separation of thing offered A thing, when offered by way of performance, may not be mixed with other things from which it cannot be separated immediately and without difficulty. § 923. Offer dependent upon performance of condition 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 that condition. § 924. Written receipt A debtor may require from his creditor a written receipt for any property delivered in performance of his obligation. § 925. Extinction of pecuniary obligation by offer, deposit, and notice 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 a bank of deposit within the Canal Zone, of good repute, and notice thereof is given to the creditor. § 926. Objections to mode of offer 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. § 927. Title to thing offered 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. § 928. Custody of thing offered A person offering a thing, other than money, by way of performance, shall, 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 the depositary. § 929. Effect of offer on interest and incidents of obligation An offer of payment or other performance, duly made, though the title to the thing offered is 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. 8930. Retention of thing offered and refused 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. Article C-Prevention of Performance or Offer § 941. Causes excusing performance or offer The want of performance of an obligation, or of 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 the 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 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 the performance or offer may be made, and not rescinded before that time. 942. Performance prevented by creditor If the performance of an obligation is 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. § 943. Performance prevented by cause excusing it If the 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. § 944. Refusal to accept performance before offer 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. Article D-Accord and Satisfaction 8951. Accord defined 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. 8 952. Effect of accord Though the parties to an accord are bound to execute it, it does not extinguish the obligation until it is fully executed. |