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although it was not delivered to him, puts the thing at his risk from the date of the obligation, if the contract was one of those that purport a transfer.
ART. 1904.-But if the debtor of a thing is in default for not having made the delivery, it is at his risk from the time of his default.
ART. 1905.-The debtor may be put in default in three different ways : by the terms of the contract, by the act of the creditor, or by the operation of law : '
1. By the terms of the contract, when it specially provides that the party, failing to comply, shall be deemed to be in default by the mere act of his failure;
2. By the act of the party, when at or after the time stipulated for the performance, he demands that it shall be carried into effect, which demand may be made, either by the commencement of a suit, by a demand in writing, by a protest made by a notary public, or by a verbal requisition made in the presence of two witnesses;
3. By the operation of law. This takes place in cases where the breach of the contract alone is by law declared to be equivalent to a default. The law having declared that the neglect to return a thing loaned for use, at the stipulated time, or the application of it to another use than the one for which it was lent, puts it at the risk of the borrower; this without any act of the lender puls the borrower in default, and forms an example of this part of the rule.
ART. 1906.-—The effects of being put in default are not only that, in contracts to give the thing, which is the object of the stipulation, is at the risk of the person in default; but in the cases hereinafter provided for, is a prerequisite to the recovery of damages and of profits and fruits, or to the rescision of the contract.
ART. 1907.-In commutative contracts, where the reciprocal obligations are to be performed at the same time,
or the one immediately after the other, the party, who wishes to put the other in default, must at the time and place expressed in, or implied by the agreement, offer or perform, as the contract requires, that which on his part was to be performed, or the opposite party will not be legally put in default.
ART. 1908.-Although the contract be, either not commutative, or, if commutative, the reciprocal obligations are not to be performed at the same time, yet the party wishing to put the other in default, must be himself ready, and must offer to receive the performance at the time and place stipulaled in the contract or implied from the nature of the act to be done, and he cavnot avail himself of any demand at any other time or place; but if the obligation be to do or give any thing that may as well be given, or done at one time and place as at another, then the party failing may be put in default as well after, as at the time the obligation becomes due. Promissory notes and bills of exchange are not governed by this rule, but by those of commercial law,
ART, 1909.-But if the object, contracted to be given, be not a thing particularly specified, but is uncertain, in. determinate or described only by quantity or vumber, it is at the risk of the creditor only from the time he is in legal default for not receiving the thing after it has been tendered. A contract to deliver a certain number of bushels of wheat, to pay a certain sum of money, ship a certain number of hogsheads of sugar, without further identification, comes under this rule.
ART. 1910. There is an exception to the rule established in the last preceding article; when the object of the contract, although indeterminate in itself, makes part of a whole that is determinate and certain, and the whole, of which it forms a part, is lost or destroyed by inevitable accident before delivery, the loss will fall on the creditor of the thing sold. A sale of ten bales, of the
hundred bales of cotton in a particular store, is an example of this rule, and if all the cotton be destroyed by fire, the accident will discharge the seller from the obligation of delivering it.
ART. 1911.-In the ease provided for by the last article, it must appear thut the designation of the mass, from which the particular object of the contract is to be taken, was intended by the parties as restrictive, that is to say, that their intention was confined to that particular property, and no other of the same kind. Where such intent is not clearly expressed, it shall be presumed that no such restriction was intended; and the thing is at the risk of the debtor until delivery or default.
ART. 1912.-Although the contract contain an obligation to deliver, yet if it be one that does not purport a transfer of property, the thing is always at the risk of the obligor, provided there be no specific agreement to the contrary.
ART. 1913.-If the contract be complete, and be one that purports a transfer of property, its destruction before delivery or default does not exonerate the party who was to have received it, from the performance or delivery of that which on his part was intended as the price or equivalent for such property.
ART. 1914.-The rule, that the obligation to deliver a determinate object is perfect by the mere consent of the parlies, and that the obligee is the owner from the time of such contract, is without any exception as respects immoveables, not only belween the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the property.
ART. 1915.-In cases, however, of contracts, which purport to transfer immoveable property, if he who transfers it is suffered by the obligee to remain in corporal possession for a longer time than is reasonably required
to deliver the actual possession and to act as owner, to the injury of a third person, who may afterwards contract with him, or acquire rights upon his property as creditors, it will be considered as a mark of fraud, and will throw the burthen of proving that the contract was made bona fide upon him to whom the property was transferred by the first contract, in any controversy with creditors of the obligor or persons acquiring bona fide intermediate rights by contract with him.
ART.1916.-With respect to personal effects, although, by the rule referred to in the two last preceding articles, the consent to transfer vests the property in the obligee, yet this effect is strictly confined to the parties until actual delivery of the object. If the vendor, being in possession, should, by a second contract, transfer the property to another person, who get the possession before the first obligee, the last transferee is considered as the proprietor, provided the contract be made on his part bona fide, and without notice of the former contract.
ART. 1917.-In like manner, if personal property be transferred by contract, but not delivered, it is liable in the hands of the obligor to seizure and attachment, in behalf of his creditors.
ART. 1918.—What shall be considered a delivery of possession, is determined by the rules of law, applicable to the situation and nature of the property.
ART. 1919.-If the contract be one of those that do not purport to transfer property, but only to give a right to the temporary enjoyment of it, the right to that enjoyment vests by the mere consent of the parties, in the same manner and subject to the same rules as are above laid down for contracts which purport to transfer the property itself.
Of the Obligations to do, or not to do. ART. 1920.-On the breach of any obligation to do, or not to do, the obligee is entitled either to damages, or, in cases which permit it, to a specific performance of the contract, at his option, or he may require the dissolution of the contract, and in all these cases damages may be given where they have accrued, according to the rules established in the following section.
ART. 1921.-In ordinary cases, the breach of such a contract entitles the party aggrieved only to damages, but where this would be an inadequate compensation, and the party has the power of performing the contract, he may be constrained to a specific performance by means prescribed in the laws which regulate the practice of the courts.
ART. 1922.—The obligee may require that any thing which has been done in violation of a contract, may be undone, if the nature of the case will permit, and that things be restored to the situation in which they were before the act complained of was done, and the court may order this to be effected by its officers, or authorize the injured party to do it himself at the expense of the other, and may also add damages, if the justice of the case require it.
ART. 1923.- If the obligation be not to do, the obligee may also demand that the obligor be restrained from doing any thing in contravention of it, in cases where he proves an attempt to do the act convenanted against.
SECTION IV. of the Damages resulting from the inexecution of