visible, if the light, in which it is considered in the obligation, does not admit of its being partially executed.

C. N. 1218.

ART. 2110. [2106.]-The stipulation in solido does not give to the obligation the character of indivisibility.

C. N. 1219.

§ I.

OF THE EFFECTS OF THE DIVISIBLE OBLIGATION.

ART. 2111. [2107.]-An obligation susceptible of division must be executed between the creditor and the debtor, as though it were indivisible. The divisibility is applicable only with regard to their heirs, who can demand of the debt, or who are liable to pay of it, only the part which they hold, or for which they are liable, as representing the creditor or the debtor. C. C. 2153 (2149), 2642 (2612), 2654 (2624); C. N. 1220; 5 N. S. 194; 7 N. S. 6 L. 18; 8 L. 536; 3 R. 432; 10 R. 25.

519;

ART. 2112. [2108.]-To the principle laid down in the preceding article, there is an exception with regard to the heirs of the debtor.

1. In case the debt be on a mortgage.

2. When it is of a determinate object.

3. When the debt is alternative of things at the option of the creditor, one of which is indivisible.

4. When one of the heirs is alone charged, by the title, with the execution of the obligation.

5. When it results, either from the nature of the engagement, or from the thing which is its object, or from the end proposed by the contract, that it was the intention of the parties that the debt should not be partially discharged.

In the three former cases, the heir who is in possession of the thing due, or of the property mortgaged for the debt, may be sued for the whole on the thing due, or on the property mortgaged, but he has recourse against the co-heirs.

In the fourth case, the heir is alone charged with the debt; and in the fifth case, every one of the heirs may also be sued for the whole; but the one sued has his recourse against the coheirs.

C. N. 1221; 12 A. 164; 14 A. 567.

§ II.

OF THE EFFECTS OF THE INDIVISIBLE OBLIGATION.

ART. 2113. [2109.]-Every one of those who have conjointly contracted an indivisible debt, is liable to the whole, even though the obligation was not contracted in solido.

C. N. 1222; C. P. 287; 24 A. 23.

ART. 2114. [2110.]-The case is the same, with regard to the heirs of him who has contracted such an obligation.

C. N. 1223.

ART. 2115. [2111.]-Every heir of the creditor may require the execution of the indivisible obligation.

He can not alone remit the whole of the debt; he can not alone receive the price instead of the thing. If one of the heirs has alone remitted the debt, or received the price of the thing, his co-heir can not demand the indivisible thing without making allowance for the portion of the co-heir who has remitted the debt or has received the price.

C. N. 1224.

ART. 2116. [2112.]-The heir of the debtor, being sued for the whole of the obligation, may ask for a delay to make his co-heirs parties to the suit, unless the debt be of such a nature that it can be discharged only by the heir sued, against whom, in that case, judgment may be given, he having recourse for indemnification against his co-heirs.

C. N. 1225; 24 A. 23, 442.

SECTION 8.

Of Obligations with Penal Clauses.

ART. 2117. [2113.]—A penal clause is a secondary obligation, entered into for the purpose of enforcing the performance of a primary obligation.

C. C. 3075 (3042); C. N. 1226; 7 L. 192; 13 A. 21; 16 A. 338, 339. ART. 2118. [2114.]-A penal obligation necessarily supposes two distinct contracts, one to do or to give that which is the principal object of the contract, the other to give or do something, if the principal object of the agreement be not carried into effect.

13 A. 21.

ART. 2119. [2115.]-The penal clause has this in common with a conditional obligation, that the penalty is due only on

condition that the first part of the contract be not performed. But it differs from it in this, that in penal contracts there must be always a principal obligation, independent of the penalty, while, in conditional contracts, there is no obligation, unless the condition happens.

13 A. 21; 16 A. 338, 339.

ART. 2120. [2116.]-The penalty being stipulated merely to enforce the performance of the principal obligation, it is not incurred, although the principal obligation be not performed, if there be a lawful excuse for its non-performance, such as inevitable accident, or irresistible force.

C. C. 1933 (1927), § 2, 2697 (2667), 2743 (2714), 2754 (2725), 2758 (2729), 2939 (2910), 2970 (2939), 3556 (3522); § 7, 19; 3 L. 308; 13 A. 477; 15 A. 547; 22 A. 151. ART. 2121. [2117.]-But if the form of the contract be changed, and only one obligation entered into subject to a condition, then the obligor takes all risks upon himself, and the penalty becomes the principal obligation, and may be recovered, if the condition be not performed, although there may have been inevitable accidents to prevent it.

ART. 2122. [2118.]-The cases provided for by the two last preceding articles may always be modified, like all other obligations, by express stipulations. A contract to build a house by a certain day, and if it is not built, to pay one thousand dollars, is an example of a penal obligation, in which the obligor would be excused from paying the penalty, if inevitable accident had prevented him from building.

A contract to pay one thousand dollars, if the building be not finished at a stipulated time, is a conditional obligation, and gives a right to the penalty, if, from whatever cause, the condition be not performed.

3 L. 308.

ART. 2123. [2119.]-The nullity of the principal obligation involves that of the penal clause.

The nullity of the latter does not involve that of the principal obligation.

C. C. 3076 (3043); C. N. 1227; 6 R. 450.

ART. 2124. [2120.]-The creditor, instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation.

C. N. 1228; 13 A. 21.

ART. 2125. [2121.]-The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation.

He can not demand the principal and the penalty together, unless the latter be stipulated for the mere delay.

C. C. 1934 (1928); C. N. 1229; 7 L. 188; 11 A. 175; 12 A. 761.

ART. 2126. [2122.]-Whether the principal obligation con

tain, or do not contain, a term in which it is to be fulfilled, the penalty is forfeited only when he who has obligated himself either to deliver, to take, or to do, is in default.

C. N. 1230; 6 N. S. 624; 6 R. 450; 9 R. 535; 10 R. 524 ; 3 A. 444. ART. 2127. [2123.]-The penalty may be modified by the judge, when the principal obligation has been partly executed, except in case of a contrary agreement.

C. N. 1231; 6 L. 721; 9 A. 592; 11 A. 175.

ART. 2128. [2124.]-When the primitive obligation, contracted with a penal clause, is of an indivisible thing, the penalty is incurred by the contravention of any one of the heirs of the debtor; and it may be exacted, either wholly against him who has contravened the obligation, or against every one of the co-heirs for his part and portion, and, in case of mortgage for the whole, they having their remedy against him who has caused the penalty to be incurred.

(Am'd.) C. N. 1232.

ART. 2129. [2125.]-When the primitive obligation contracted under a penalty is divisible, the penalty is incurred only by that one of the debtor's heirs who contravened the obligation, and only for the part for which he was liable in the principal obligation, no action lying against those who have executed it.

This rule has an exception, when the penal clause having been added in the intention that the payment should not be made partially, a co-heir has prevented the execution of the obligation for the whole.

In that case the entire penalty may be exacted of him, and against the other co-heirs only for their part; but the latter have their recourse against the former.

C. N. 1233.

CHAPTER 5.

Of the Manner in which Obligations may be Extinguished.

ART. 2130. [2126.]—Obligations are extinguished:

By payment.

By novation.

By voluntary remission.

By compensation.

By confusion.

By the loss of the thing.

By nullity or rescission.

By the effect of the dissolving condition, which has been explained in the preceding chapter.

By prescription, which shall be treated of in a subsequent title.

C. C. 2045 (2040), 3277 (3244), 3411 (3374), 3457 (3420); C. N. 1234; 4 L. 361; 9 L. 11; 12 A. 699; 15 A. 457, 460; 16 A. 207; 24 A. 539.

SECTION 1.

Of Payment.

ART. 2131. [2127.]-By payment is meant, not only the delivery of a sum of money, when such is the obligation of the contract, but the performance of that which the parties respectively undertook, whether it be to give or to do.

C. C. 2134 (2130); 19 A. 392; 21 A. 248, 249, 332; 24 A. 291, 478.

ART. 2132. [2128.]-He who is bound to do, or not to do, or to give, is indifferently called the obligor or the debtor; and he to whom the obligation is made is in like manner without distinction called the obligee or the creditor.

§ I.

OF PAYMENT OR PERFORMANCE IN GENERAL.

ART. 2133. [2129.]-Every payment presupposes a debt; what has been paid without having been due, is subject to be reclaimed.

That can not be reclaimed that has been voluntarily given in discharge of a natural obligation.

C. C. 1758 (1751), 2301 (2279), 2303 (2281); C. N. 1235; C. P. 18; 11 R. 502; 14 A. 10; 17 A. 153; 21 A. 768.

ART. 2134. [2130.]—An obligation may be discharged by any person concerned in it, such as a co-obligor or a surety.

The obligation may even be discharged by a third person no way concerned in it, provided that person act in the name and for the discharge of the debtor, or that, if he act in his own name, he be not subrogated to the rights of the creditor.

C. C. 2131 (2127); C. N. 1236; 3 L. 479; 5 A. 48; 12 A. 481; 23 A. 87; 24 A. 291.

ART. 2135. [2131.]-A third person may, for the advantage of the obligor, put the obligee in default, by offering to perform the obligation on the part of the debtor, even without his knowledge; but it must be for the advantage of the debtor, and not merely to change the creditor.

C. N. 1237.

ART. 2136. [2132.]—The obligation of doing cannot be dis