Terms and Conditions
1. Concept
The term is a future and certain event on which the fulfillment or extinction of an obligation depends. The fundamental characteristic of the term is its certainty, in the sense that the circumstance that constitutes it will occur with all certainty, even when there is no certainty as to when it actually occurs.
II.-TERM CLASSES
1. -Depending on the fulfillment or termination of the obligation: suspensive term and extinguishing term.
A.-Suspension term. It is that future and certain event on which the enforceability of an obligation depends. This term suspends the fulfillment of the obligation until it is carried out: for example, I will pay ten thousand bolivars on August 19. The enforceability of said sum is only feasible on August 19, but not before.
B.-Extinctive term. It is that future and certain event on which the extinction of an obligation depends. This term when occurring extinguishes the obligation. Example: I will pay five hundred bolivars a month until November 30. When the term is verified, when the 30th of November passes, the obligation is extinguished; but without retroactive effect, termination only affects future benefits.
2. -As for the certainty of the term: certain term and uncertain term.
A.-True term. It is that event that knows its occurrence and when it will occur. The Romans called it dies certus an certus quando. The typical case is the calendar date: for example, I will pay ten thousand bolivars on May 31..
-Uncertain term. It is that event that is positively known to happen but it is not known when; for example: the death of a person. The doctrine criticizes the denomination qualifying it as confusing and contradictory, since the term is always true and in the proposed example the uncertainty does not include the realization of the fact but only the time in which it will occur.
In other situations, already foreseen by the Romans, if you know when an event may occur but not if it occurs (dies incertus an certus quando), as, for example, when Peter turns 21, the doctrine states that one is in the presence of a condition and not of a term, even though others believe that it may be a term if the parties have not demanded the survival of the person as an essential question.
3. -By its origin, the term can be: conventional, legal or judicial.
A.- The conventional term is that established by the parties, who are free to set such modality, but there are cases in which the law prohibits the establishment of terms to the parties for reasons of public order, or regulates and limits the term; such is the case, for example, with article 231 of the Civil Code: "The declaration of legitimation may not be made under condition or term". In successor matters, article 916 provides: "It is considered not to be made in a universal disposition, the day from which it must begin or cease." Also the prohibition in certain contracts, such as usufruct, which "can be constituted on movable or immovable property, for a fixed time but not in perpetuity." The usufruct established without a term "is understood to be constituted for the entire life of the usufructuary." "The usufruct established in favor of Municipalities or other legal persons may not exceed thirty years" (art. 584 of the Civil Code).
Regarding leasing (Art. 1580 of the Civil Code): “Real estate cannot be leased for more than fifteen years. Leases held for more than that time are limited to fifteen years. Any stipulation to the contrary is of no effect. If it is a house to inhabit, it can be stipulated that it last up to the entire life of the tenant. The leases of completely uncultivated land, under the condition of clearing them and cultivating them, can extend up to fifty years ”. Regarding withdrawal (art. 1535): “The right of withdrawal cannot be stipulated for a period that exceeds five years. When it has been stipulated for a longer period, it will be reduced to this period ”. The provisions of this article do not prevent new extensions from being stipulated to exercise the right of redemption, even if the period set and those extensions exceed five years ”.
Regarding antichresis (art. 1862, first paragraph): “Antichresis cannot be stipulated for a period greater than fifteen years. In the event that the contract does not establish any term, or establishes one greater than fifteen years, the antichresis will end at the expiration of the fifteenth ".
B.-Legal term is that established by law. In some cases, the legal term may be altered by the will of the parties. In other cases, the legal term obeys mandatory norms that are not susceptible to alteration by individuals; such as taxes in articles 584, 1580, 1535 and 1862 of the Civil Code, indicated above.
C.- Judicial term. It is the one imposed by the judge, in the absence of that stipulated by the parties.
4.-Term of right and term of grace.
The term of law is the name by which conventional, legal and judicial terms are designated, because they always emanate expressly or tacitly from the will of the legislator.
The term of grace is for the doctrine that term granted by the judge, in certain laws, to the debtor whose debt is already due and who has not complied, in order to comply with it. This term pursues the direct fulfillment of the obligation and avoids the fulfillment by equivalent.
In Venezuela there are no rules by which the judge is authorized to grant grace terms.
5.-Express terms and tacit terms.
The express term is one that is set directly and fully by the parties, the judge or the law.
The tacit term is one that emerges from the very nature of the contract, the legal business or the law itself, even when it is not expressly stated.
The tacit term exists in our Law and as such we can cite in the mutual and the loan, articles 1731 and 1742.
Article 1731: “The borrower is obliged to return the thing loaned at the expiration of the agreed term. If no term has been agreed upon, the thing must be restored by having used it in accordance with the convention. The lender may also demand the restitution of the thing when a suitable period has elapsed within which it can be presumed that the borrower has made use of the thing. When the duration of the loan has not been fixed and cannot be according to its purpose, the lender may demand the return of the thing at any time ”.
Article 1742: "If there is no term set for restitution, the court may agree on a term for it according to the circumstances."
III.-EFFECTS OF THE TERM
1. -Generalities
In principle, the term is established in favor of the debtor, since by affecting the enforceability of the obligation, the legislator logically assumes that the first interested party in its validity is the debtor. However, the term can be established in favor of the creditor or both parties. This is provided in article 1214 of the Civil Code: “Whenever a term or term is stipulated in the contracts, it is presumed to have been established for the benefit of the debtor, unless the contract itself or other circumstances proves to have been in favor of the creditor , or of both parties ”.
2. -Effects of the suspensive term
The doctrine divides its effects into two stages:
A. Effects before the term expires.
B. Effects after the term expires.
A.-Effects before the term expires.
1º-The obligation is suspended in terms of its execution. Compliance with the obligation is not enforceable, but the obligation does exist from the first moment. As a consequence we have:
a) The creditor can request the recognition of his right in case of refusal of the debtor.
b) The debtor can be released by paying his obligation. In this case, it is understood that the debtor waives the benefit of the term, which in principle is deemed to be established in his interest. If the payment is made, the debtor cannot repeat what was paid, since he has paid an obligation that existed (art. 1213, first paragraph, of the Civil Code): “What is owed in a fixed term cannot be demanded before the expiration of the term; but it is not possible to repeat what has been paid in advance, even if the debtor ignored the existence of the term. However, if the debtor paid ignoring the term, he has the right to claim, to the extent of his damage, the enrichment that his advance payment has procured from the creditor ”.
There are situations in which by express legal provision the advance payment does not release the debtor; it happens:) The debtor is not released or can pay before, if the term is established for the benefit of the creditor, because in this case the creditor cannot be forced to accept the
until after the term has expired.
b ’) When the debtor is insolvent and the unsecured creditor receives from said debtor the payment of debts not yet due. The creditor must return what was received to the estate.
c ') Regarding the transfer of assets, payments of unexpired installments made by the debtor after the introduction of the transfer or in the twenty days preceding it (art. 1940).
d ') In terms of risks, if the thing is a certain body and perishes or deteriorates before the expiration of the term, the creditor bears its loss or deterioration.
e ') The prescription does not run with respect to the obligations submitted to term, as it is based on the negligence of the creditor to collect the credit and such negligence cannot be required of the creditor of an obligation under suspensive term, who cannot collect his credit . This explains the provisions of article 1965 of the Civil Code, which establishes that the prescription does not run with respect to actions whose exercise is suspended for a period, as long as such period has not expired (ordinal 49).
B.-Effects after the term has expired.
Once the term is fulfilled, the obligation becomes pure and simple, being fully enforceable, applying the known general principles.
3.-Effects of the extinctive term. Two moments must be distinguished:
A.-Before its fulfillment. B.-After its fulfillment.
A.-Before its fulfillment. The obligation is pure and simple, being fully enforceable and producing its normal effects.
B.-After its fulfillment. The obligation is extinguished and the debtor cannot be required to comply with benefits after the expiration of the term.
IV.-EXPIRATION OF THE TERM
There are situations in which the legislator, in protection of the creditor's rights, ceases the benefits that the term may produce in favor of the debtor. This happens:
1º-In cases where the debtor becomes insolvent.
2º-When, by its own act, the security to the creditor for the fulfillment of the obligation decreases, or it has not fulfilled the promised guarantees.
Article 1215 of the Civil Code states in this regard:
"If the debtor has become insolvent, or by his own actions he has reduced the securities granted to the creditor for the fulfillment of the obligation, or he has not given the promised guarantees, he cannot claim the benefit of the term or term."
V.-DIFFERENCES BETWEEN THE TERM AND THE CONDITION
A.-General difference.
Between the term and the condition there is a fundamental difference: while the condition is constituted by a future and uncertain event, the term lies in a future but certain event.
The doctrine indicates other differences according to the respective nature of the modalities; thus we have to distinguish between the term and the suspensive condition, and between the extinctive term and the resolving condition.
B.-Differences between the suspensive term and the suspensive condition.
1-The term suspends the enforceability of the obligation on which enforcement cannot be requested before the term expires. The condition affects the existence of the obligation, in the sense that it does not exist as long as the condition is not met.
2-The debtor can fulfill the obligation before the expiration of the term, if it is established for the benefit of the debtor and cannot exercise the repetition of what was paid, since it is understood that he pays an existing obligation and has waived the benefit of the term. On the other hand, if the debtor of an obligation subject to a suspensive condition pays before the fulfillment of the condition, he can exercise the repetition of what was paid.
3-Regarding risks, in the event of a suspensive term, if the thing perishes or deteriorates before the expiration of the term, the loss or deterioration is borne by the creditor.
In terms of suspensive condition, if the thing is destroyed before the fulfillment of the condition, the loss is borne by the debtor, since the obligation is considered as not contracted (second paragraph of article 1203).
C.-Differences between the extinctive term and the resolving condition.
Both modalities extinguish the obligation, but their effects are different, namely
The obligation submitted to extinction term, is extinguished when the term is fulfilled, but said extinction operates towards the future and not towards the past, so that the benefits fulfilled by the debtor are valid and are not subject to repetition. For example: I force myself to pay Bs. 500.00 per month until December 31st. At the end of the term (on December 31st) I am not obliged to continue paying the Bs. 500.00 more monthly; but the payments of said sums made before said date are valid, as well as the creditor can demand from the debtor the execution of the unfulfilled obligations during the time in which the term had not been fulfilled
The obligation subject to a resolutive
condition is extinguished when the condition is fulfilled, but the extinction operates both towards the future and towards the past. Upon fulfilling the resolutive condition, the obligation is deemed as if it had never been contracted. It is the retroactive effect of the condition. The obligation disappears both in the future and in the past and the parties must return the benefits fulfilled before the fulfillment of the condition.
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