enforcement action for failure to comply with the obligation in Article 1428 of the Peruvian Civil Code.
By Andrew Chang Guillermo Hernández (*)
I. Introduction.
not surprising that certain benefits, which binds a party to the contractual relationship, are unfulfilled or partially fulfilled, late or defective. In this course our civil law gives us two solutions, ie gives the injured party or that, if fulfilled its delivery two options, request enforcement of the provision or termination of the contract in effect under the Peruvian Civil Code 1428 and references by our case the injured party may enforce the obligation delivery or termination of the contract and both cases of compensation for damages ie the creditor must choose one of the two alternatives, not both at once "and our emphasis added .
The alternatives provided by our civil legal system contains two actions that fall within the injured party to sue the resolution, provided that you no longer want the fulfillment of the service or when this is useless or uninteresting to the creditor or to enforce the provision to the party breached.
This time we board the first option offered to us by Article 1428 of the Civil Code, that is to enforce the provision.
II. Breach of the obligation.
For practical reasons in the legal area, breach of contract talks and even demand such a claim, however it really should be required is a breach of the obligation, it is known that the contract ends with his conclusion and what remains is the obligation created by it. This situation is encouraged by the same code Article civil when in 1428 speaks of contract termination, incorrect note of our civil rule
A first idea for the violation invites us to revise Article 1314 of the Civil Code, the same as determined in which cases the defaulter is responsible for default. In this regard in accordance with the rule cited above, is only responsible for the failure to comply with its provision, a person who did not act with ordinary diligence required to do so, so if this obligation stems from a contractual agreement, the aggrieved party could choose to require compliance or to terminate the contract of the obligation
Failure the due performance or faulty performance, says FERRERO COSTA, may be voluntary or inaccurate. On this subject, Messineo, states that to impose liability for breach of the obligation should be noted that The Law does not only the conduct of the debtor failure, but also the causes of such behavior and no more than an alternative the debtor has failed because it could not either because they wanted bone has not done what was necessary to get in position to meet subjective element, in concurrence with the objective, consisting in the fact of the breach " Our system
regulates civil breach of the duty in Title IX, Section Two Book VI of the Civil Code, called "non-performance of obligations, stating in its Article 1314 ° who acts with ordinary care required, not be attributed by the failure of the obligation or its partial, late or defective "
In this regard we appreciate that in speaking of non-performance of the obligation breach of the obligation, in our case a born of a contract, we must understand that we only impute nonperformance of its contractual obligation to the party which has not always been diligent or as the same Standard puts it shall not be eligible for such failure if acting with ordinary care required. What that makes us understand that not every breach of the contractual relationship is attributable, for open cases that despite a party fails to perform its obligation, the other may not engage in actions that allow you to Article 1428 of the Civil Code, ie their enforcement or demand the termination of the contract.
The failure to give a creditor's interest dissatisfaction obviously because the provision that he had in his favor has not been fulfilled, has been a partial, late or defective. Given this failure to the injured party may sue compliance with the provision, in case you had not been made, full compliance should have been partially or finally properly enforce the provision if the debtor has not done so defective according to the contract program in the latter if the defectiveness is not measured according to a subjective assessment of the creditor but to objective or at least the same objective parameters of the utility of the benefit according to the same order as agreed upon between the parties.
This multiplicity of enabling cases to impute the failure to comply with the obligation may be sued either, so it is logical that if a party fails, unenforceable obligation, or if the meet but late or if it meets but does this also failed badly, so when it comes to enforcement of compliance is worth about half.
But what is said in the preceding paragraph does not mean that the creditor accept the payment, even if the services were performed in a partial, late or defective, that under the autonomy available to the parties in their special relations, provided does not affect third party rights. Even our system allows the discharge of the obligation even if the provision had not been fulfilled, as allowed by Article 1295 of the Civil Code. However
the questions that deserve Appeal 1523-2002-Lima, share the idea of \u200b\u200bCasatoria Court in stating that the payment can be made by various mechanisms by which the parties deem one of them may be the acceptance of partial payment, late or defective, either because it is still of interest or use to the creditor or simply because you wanted, understood in this case the creditor is fully satisfied and the provision made by the debtor other hand do not like to share when these other forms, the compensation, settlement and consolidation, when the latter, properly represent different ways of fighting obligation, but not in various forms of payment, because according to Article 1220 of CC, made the payment means only when it has fully implemented the provision and it is obvious that the various alternative ways of terminating the obligation to regulate our Code purely civilian running full benefit.
To conclude at this point in the event of breach of the provision by a party where not bound by ordinary diligence or contrario where they act with negligence, inexcusable negligence or with intent, our system enables actions responsibility encompassed by Article 1321 of the CC and in particular, what Today we tackle, the enforcement of the provision referred to Article 1428 of the standard before elbow.
III. Scope of Article 1428 of the CC Special note to the action of providing the benefit. Once determined
debtor's liability for breach of the provision to his office or late or has done badly, the aggrieved party, as has been said, can make use of the provisions of Article 1428 of the Civil Code, ie enforce the provision or possibly terminate the contract demand.
Article 1428 of the Civil Code as well as the two options referred to above can demand compensation the damage that generate non-compliance, stressing that the latter is appropriate only when the injured party actually try out the damage, so we can say that not every breach enable an action for damages.
These two options are mutually exclusive, ie the injured party can only choose one, this is good demand resolution or enforcement of the provision, the rule contained in Article 1428 is very clear, so the case is unanimous on it. Now bearing in mind the alternative character that have both options, it is worth noting that in our civil system was not included so the doctrine known as variandi IUS, action whereby it is possible to vary the claim of the injured party to breach, this is to move from enforcement actions for compliance and vice versa. This prohibition is most striking when the article 1453 of Italian Civil Code, which serves as a source of our current artículo1428, if recognized.
us not forget either that the rule contained in Article 1428 of our civil rule, recognized, that doctrine is known as variandi IUS, by providing in its last part. In fact our article 1428 of CC, in the latter part clearly expressed From the date of citation of claim resolution, the defendant is unable to fulfill their delivery. " Varying the resolution action compliance is clearly blocked by the said second paragraph of Article 1428 of the CC in turn is from the first demand compliance and then pretend to vary depending on the termination of the contract, in the light that this would interfere, says the teacher Manuel de la Puente, against a pathway known adage elected non datur ad alteram recursus chosen a path, there is no recourse to other
We believe there is a possibility of a defendant once after resolution demanding compliance, this will only be possible if the party injured by the breach once it has defendant withdraws the resolution of that claim and once admitted his withdrawal, only then may file a new claim of compliance with the provision, however here there variandi IUS but a new action.
IV. Ordinary diligence as required conduct to be exempted from liability for breach of the provision. Talking
ordinary diligence is more subjective, since what for some people is diligent in other might not. But about the scope of such a measure is very important because it influences the allocation of responsibility or not the breach to the party that has failed, So they have acted with due diligence required regular open no responsibility for the failure and eventually the injured party can not drive under Article 1428 of the CC
But what do we mean by ordinary diligence?.
means that the debtor's behavior is to use all the care and precautions that - taking into account the nature of certain mandatory relationship and every circumstance, I put in a position to comply. Professor Raúl Ferrero Costa, says act diligently in a good account, from the standpoint of the debtor, which usually means you can expect it to do to achieve the satisfaction of the creditor. When the non-performance or inaccurate is not the result of a lack of diligence by the debtor is exempt by law from liability. This means that despite the regular effort made by the debtor has failed to achieve the satisfaction of the creditor. This may be due to multiple causes, such as the fortuitous event and force majeure, lack of cooperation of the creditor itself, and so on. So that the absence of guilt exonerated of liability, whether in the case of non-performance of the obligation or inaccurate or irregular compliance. For, this alone and must correspond to prove that even though he acted with the diligence required of the nature of the obligation, the provision could not be carried out or has been be just as inaccurate, for reasons not attributable to him "
V. When we can enforce the provision.
As we noted when a party fails to fulfill its payment or makes late or defective, without observing ordinary diligence as required under the provision of nature, which implies first attribute any of the criteria for allocation which includes civil code, that is to have acted out of malice, ordinary negligence or inexcusable negligence, enables the other to enforce the non-fulfillment.
Within the assumptions on which it is understood that part of their obligation unenforceable, ie failure to provide , its partial, late or defective in all of them can claim the judicial enforceability, via the demand for compliance with an obligation to give, do or not do, according to the nature of the benefit unmet, unfulfilled defective, late or in part. Obviously this
enforcement of the provision reflects the interest of the party faithful, because it referred to under Article 1428 of the CC, its demand is the prerogative of the injured party to the breach and not the defaulting party, therefore depends the will of the first if you choose to demand resolution or compliance.
also the enforcement of the provision does not prevent requiring the payment of compensation for damages if the breach caused damage or if it does not prevent payment of the penalty if it has been previously agreed, whereupon the injured in a single action can achieve compliance with the due performance and payment of penalties or the sum agreed for compensation for damage in at the time be determined by the judge.
Now it should be noted that the compliance required of the provision should only responds as compliance with the obligation provided that it has requested, through the courts or not, the injured, as our standard vetoes civil understand the possibility of fulfilling the obligation when, despite having complied with the provision the debtor, the creditor has previously demanded the termination of the contract obligation whose demand has been served on the debtor, and also understands Appeal 3021-1998-Lima, If the party against whom it has demanded the resolution of contract for failure to make payment of benefits due after the date on the citation to the demand for resolution, that may not raise any such payment and compliance from its obligation to provide it an overpayment that the debtor was prevented from doing under the rule of the second paragraph of Article 1428 of the Civil Code. However it has expedited the right to seek repayment of the amount paid via the action of refund overpayment "Obviously it
impediment does not apply in cases which demand the fulfillment of the obligation, for if the other party is then having been notified of the claim, would be effectively performed as required by the injured party, however in the case instituted would be satisfied only the end of the performance of the obligation due, what exactly is required in the application, but not the compensation for damage, as if they actually occurred, compliance with the provision owed by the defendant not exempt from the payment of damages caused by its breach.
* Post-Graduate at the University Castilla La Mancha (Toledo, Spain), University Teaching Universities UAP and SJB (Ica subsidiaries), Legal Consultant of the Regional Directorate of Energy and Mines of Ica.
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