THE CIVIL CODE OF 1936 AND THE CIVIL CODE OF 1984 "ANALYSIS OF THE TRANSITION OF LIABILITY LIABILITY nonperformance" The Civil Code of 1984 introduced two important changes with reference to the scheme of the Code of 1936. The rules on mora-contained by the Code of 1936 between the provisions of the pay-and the rules on the penalty clause, legislated by the previous code as one of the modalities of obligations, were incorporated into the Code of 1984 in the section on non-performance of obligations because both institutions are designed to operate in cases of nonperformance or partial performance, late or defective obligation. Accordingly, the title of non-performance of obligations in the current code has three chapters on general provisions, arrears and obligations with a penalty clause, unlike the previous Code of 1936, with one title, the provisions dealing general.
So much for the scheme. Now discuss some of the innovations introduced by the Civil Code, regarding failure to comply with the obligations regarding the regulation of its immediate predecessor, the Code 1936.
1. NO FAULT AND ACTS OF GOD OR FORCE MAJEURE
The Civil Code of 1936 made no distinction between the absence of guilt, this is the no fault, and fortuitous event or force majeure, and only allowed the debtor to attend a defense for any of these last two events. The Code of 1984, however, the rule is that the debtor is legally immune if necessary with ordinary diligence required, that is, with no guilt and, additionally, acts of God or force majeure, in which there absence of guilt, and the latter because in certain situations the law or contract provide that the debtor can only be exempted from liability for those acts of God or force majeure, and not by diligent action however does not allow you to meet the obligation .
The new Code difference, hence the absence of fault or no fault, as a generic concept of fortuitous events or force majeure, which are specific concepts of no fault.
In the absence of fault of the debtor is not required to prove the positive fact of unforeseeable circumstances or force majeure, that is, the cause of failure due to events caused by extraordinary, unpredictable and inevitable. In the absence of fault by the debtor is simply required to prove that he acted with ordinary diligence required, without having to prove the existence of an event that caused the failure to comply with the obligation. In the absence of guilt is proven diligent conduct, as opposed to a fortuitous event or force majeure, which requires identifying the event with the characteristics identified extraordinary, unforeseeable and irresistible.
In sum, the general principle is that the debtor must demonstrate their behavior only diligently to be relieved of liability, unless the law or agreement requiring the presence of a fortuitous event or force majeure. In the latter case is necessary to identify the event which prevented the obligation to comply, and test the competition of the three requirements statements.
2. MORAL DAMAGES
Code 1984, contrast to the Code of 1936, embodies the moral damages caused by failure to comply with obligations. Thus, Article 1322 It establishes that "moral damage, as he had suffered, it is also susceptible of redress" .
moral damage may be incurred not only individuals but also to legal persons, as it has established a Constitutional Court ruling. E he issue is common when it comes to individuals. However, divergent views emerge quickly when trying to ascertain whether legal persons can also be compensated for this item.
For this purpose, to adopt the concept of moral damage broadly understood as any injury violation or impairment of a subjective right or legitimate interest of an extra- , suffered by one subject as a result of the unlawful action of another person . According to this concept, are -pecuniary or moral rights those aimed at protecting goods or personal budgets , which make up what the person is . This sense of moral damage leaves the stagnant concept means this institution as the psychological impact produced by the taxable person for a wrongful act, which manifests as pain and suffering (pain and suffering ) , humiliation, " Suffer pain and " common law, etc. In this vein, moral damages arise from the violation of an extra-without inquiring into the existence of a particular emotional state of the taxpayer.
Notwithstanding the foregoing, it should be noted that the possibility that a person legal can be compensated for pain and suffering was rejected by our judiciary. Thus, in the Civil Jurisdictional 1997 Plenum held in Lima on November 18, 1997, established "the moral harm is made by suffering, impairment, pain, worry, grief spiritual, can only be sustained by natural persons. " On this basis, the plenary agreed unanimously " that moral damages can not be sustained by legal persons " .
As can be seen, the agreement of the plenary cited jurisdictional response to a traditional conception of moral damage. However, by the Constitutional Court ruling of August 14, 2002, declared from the amparo filed by the Fund Rural Savings and Loan of San Martin from the Communication and Services Company LLC and others to refrain from disseminating inaccurate news, because it affects the banking rights, the guarantee of savings, self employment, and workforce stability of that financial institution.
In this case, the Constitutional Court found that legal persons could also be in possession of certain fundamental rights in certain circumstances. According to that ruling, this ownership is clear from Article 2 , paragraph 17) of the Constitution Policy 1993, which recognizes the right of everyone to participate individually or in the political, economic, social and cultural life of the nation. In this regard, according to the Constitutional Court, to the extent that organizations formed by individuals are integrated in order to make and defend their interests, that is, to act for and replacement of natural persons, many rights of the latter extend over legal persons.
This position was explicitly stated by the previous 1979 Constitution, which in its article 3 provided that the fundamental rights provided for in Article 2, were also property of legal persons as may be applicable. While this principle has not been picked up by the Constitution 1993, expressly, it does show that the current Peruvian law has opted for the vulnerability of the legal person, for non-pecuniary rights. The silence of the Constitution that governs us determined that when the article 2 refers to the rights of the individual, they must be understood in the broadest sense, ie that also incorporate people legal.
Thus, our initial corollary becomes stronger, because this interpretation can give constitutional support to the thesis to understand the moral and non-pecuniary rights involvement. And that leads temperament, of course, to include a legal person within the sphere of protection of these rights.
Finally, as to the nature of the remedy for this kind of damage, it is true that it is rare to find injured interests in contractual matters of morality. However, this is no objection to not be repaired if they prove existence. Better, in fact, imperfect seek redress in this case, the delivery of a sum of money to repair a non-material damage, to leave unprotected the right violated.
3. QUANTIFICATION OF DAMAGE OF HARD EVIDENCE
Code 1984, unlike the previous Code of 1936, provides an interesting rule for quantification of damage difficult probanza. This formula has been followed by the section 1332 °, which provides that "if the compensation for damage can not be tested on a precise amount, the judge shall fix fair value " .
Here it should be noted that when circumstances arise in respect of some cases of damage of a special nature, the law refers the settlement, therefore preferred, at the discretion of the judge discretion, in fair value, which can adapt better to the nature of such assumptions. It follows the precept that the most appropriate legislative justice, given the peculiarity of course, be achieved through prudent role of the judge.
Therefore, in the case of section 1332 of the Civil Code, the law provides a mechanism for quantifying the recovery of damages difficult probanza. The rule is immediately preceded by the Article 1226 Italian Civil Code No. 1942, which states that "if the damage can not be tested on precise amount, the judge settled by a fair valuation" .
Commenting on the device Italian Code, by reasons which are valid for our system, Adriano Cupis same article notes that presupposes the impossibility of proving the real and effective magnitude of the damage, making it an institution that, as a substitute remedy, stands in for the test impossible. However, the fair valuation may also dispense with exceptional cases of impossibility, ie, not acting as a remedy but takes on the role of an instrument to compensate for damages, which the legislature has preferred to any other possible evidence.
In this case, is left to self-determination and prudent judge the amount of compensable injury, he should exercise his discretion discretionary basis both to the peculiar characteristics of the legal nature of the institutions involved, as to what the case may require.
4. CREDITOR MORA
Unlike the 1936 Civil Code, the Code of 1984 is the default of the creditor organically.
On this issue, Caballero Lozano understands that it is a mishap that occurs in compliance with the obligations, if the creditor fails to cooperate promptly with the debtor to the extent necessary to take place in implementing the program established delivery.
regard, the author said he wondered in bewilderment how the creditor may refuse to accept a pay equity , which in principle can not be expected rather than benefit. But the truth is that traffic continues to offer us examples in which the owner of a good experience leaving it more advantages to a third party holding it under his own immediate dependence. If the lender is the preferred high interest rates continue to receive before-he-can benefit directly from the sum of money. Are also cases of doubtful legality, as when, for cyclical economic reasons, the owner of a thing to be restored preferred that the debtor continues guarding and therefore bear the costs that will be required.
described assumptions allow us to realize that creditor cooperative activity is presented as essential and necessary for the faithful performance of the obligation. Otherwise, even if the debtor is willing, could not meet the delivery charge.
Among the requirements for you to set the default of the creditor is possible to highlight the following: first, reached by the implementation time, and then offer the debtor provision purpose of bringing to the creditor receiving it.
On the second point, Albaladejo understands that the offer of payment by the debtor not only declares its readiness to comply with the provision, but requires the creditor to receive it or put on his part, need to be made. There is, therefore, an injunction, it can be in any way, even verbally. However, this rule suffers except the automatic default that the law provides for certain obligations. In such cases, from the time of maturity occurs and the debtor has the benefit to the creditor, the payment is in default without having to be summoned to receive it.
As a last requirement, in order to configure the default of the creditor is also necessary that unreasonably refuses to accept the payment, or do their part as necessary to enable made, or otherwise not in a position to receive the benefit that is offered accordingly.
Thus, when expressions like "the creditor justifiably refuse delivery", "refuses to mark their cooperation", or "rightly refuses to accept the payment" referred to reject it because it is offered appropriately (for example, is not full, or is intended to make it in time, form or place other than the one agreed, etc.). In these cases the delay of the creditor is not configured.
5. FURTHER DAMAGE IN THE PENALTY obligational
Code 1984, contrast to the Code of 1936, allows obligational penalty increases when the parties have agreed on compensation for further damage.
The possibility of modifying the amount of the penalty was covered by the Civil Code of 1936 by the following rule:
"Section 1227 .- The judge equitably reduce the penalty is manifestly excessive, or when the principal obligation had been partly or irregularly complied with by the debtor .
By the enactment of this rule, the Civil Code of 1936 and eventually abandoned the rigidity of the system iniquity absolute immutability of the Code of 1852, with origins in the ancient text of the Code Napoleon, 1804 to accommodate a relative immutability system allows the reduction of the penalty. No However, as can be seen, this rule does not admit the possibility of increasing the amount of the penalty.
Like the Civil Code of 1936, the system adopted by the Code of 1984 is the relative immutability, ie allowing the reduction of the amount of the penalty clause when it is manifestly excessive, but does not authorize the increase. However, the Civil Code introduces a significant modification under which the damages exceed the amount of the penalty shall be eligible for compensation if compensation is agreed further damage.
further damage is referred to those losses it has sustained the creditor over the agreed amount as a penalty. Considering the limitation of liability for the penalty, the system aims to ensure that the creditor breached the obligation is the full collection of the penalty, which is compensation for the damage. But additionally protects the lender would have provided compensation for the injury further, to demand, as showing damage in excess of the amount appropriated as a penalty.
De According to the above, the covenant of further injury compensability is designed to eliminate the disadvantage in that the creditor would be if the damage is greater than the amount of the penalty. This is a good account of custody that the parties privately assign their interests to the effect that the actual damage exceeds the amount previously agreed upon as a penalty.
worth noting that some jurisdictions have provided that protection can be provided privately, not in the form of further damage, "but by the court itself is empowered to increase the amount of penalties tiny. Thus, Article 1152 of the French Civil Code, through its amendments by Law No. 75-597 of July 9, 1975 and Law No. 85-1097 of October 11, 1985, admits the possibility that the judge even automatically, to increase the penalty when this is manifestly tiny.
In our system, however, this protection can only be obtained through private agreement that provides for compensation for further damage and to the extent that the creditor gets to prove its existence.
Despite the progress that the stipulation meant further damage to the impossibility of increasing the amount of the penalty posed by the Code of 1936, the fracture could be objected to simplify evidentiary function represented by this agreement. Indeed, the main problem about further damage is that the creditor must prove that the damage that is intended to include within this concept has not been covered by the penalty, otherwise, we would be faced with damage not compensable, having been absorbed by the obligational amount agreed upon as a penalty, the same limitation that having means stipulated in every respect.
For this reason, in practice, the creditor will be obliged to prove the full damages, including those covered by the penalty, so that once demonstrated that the entity arising from the breach tort is more than worthwhile, it can detract from the value of latter. The remainder will be what the debtor has to pay by way of further harm. However, note that incurred thus precisely in which parties seek to avoid a covenant to a penalty, that is, the probanza of damage and its amount.
Indeed, although to demand punishment obligational the creditor does not have to prove damages in order to claim further compensation for damage must demonstrate that the injury is greater than the penalty. This will prove indispensable in full of the damage suffered, including those probanza damage repaired by penalty clause.
Italian doctrine has attempted to solve this problem by arguing that the obligation to make reparation to further damage compensation is independent of and concurrent with the penalty. According to this position, getting the creditor compensation for pecuniary damage further added to the service agreed as a penalty, thus allowing the full compensation of damage. These statements are consistent with Article 1382 of Italian Civil Code of 1942, which states that the penalty clause has the effect of limiting the service agreed compensation, unless further damage has been agreed.
However, this position is not compatible with our civil law. This is because the text of section 1341 precludes considering the penalty and further damage the autonomous, in stating that where it has been agreed the further damage the penalty is computed as part of the damages if they were older. As such, rather than considering them as autonomous and concurrent benefits to compensate the damage, our Code has provided that the creditor must prove the integrity of the damage suffered, states that the penalty will be computed as an integral part of the damage so far attained its amount and the excess will only be required where the damage has been agreed upon later.
This temperament carries an additional consequence. Article 1343 of the Code provides that to demand the penalty is not necessary that the creditor try the damages. However, as we have been stating, to claim further compensation for the harm the creditor must prove that the injury suffered is greater than the penalty, for which purpose it will be necessary to accredit "the integrity of harm," which determines who can not be dispensed probanza of those damages are intended to be compensated by the penalty.
This temperament debunks the main difference-and-benefit balance between the amount paid by way of penalty and that you pay for further damage, according to which only the second required to be tested. This is because, as we have noted, in practice, the creditor will also be required to prove the existence of the damage to be compensated for the penalty in order to establish the amount and subtracting corresponding to recover and further damage. As can be seen, this temperament is determined that the covenant of a meaningless penalty.
In conclusion, it should be noted that payment of "integrity" of the penalty referred to article 1341 of the Code should not imply that, when it had agreed further compensation for damage, the debtor is required to pay the entire penalty, not more. In fact, according to the relative mutability system takes our Code, the debtor will always be entitled to ask the judge to reduce the amount of the penalty. This right has been expressly provided for by Article 1346.
The wording of this part of the standard reflects the legislature's view that the penalty clause "should always be full." According to this view, if it has been stipulated further damage repair, and shows that it exceeds the value of the penalty, the debtor is obliged to pay the full penalty and in addition to compensation for the difference in damages.
However, it would be wrong to argue that just because you have agreed compensation for the damage later, the debtor loses the right to request judicial reduction and must pay the full penalty . Only after the judge denied the reduction of the penalty, if it had been applied, the debtor must pay the full amount.
