Historical origina of the extinction of obligations through fulfillment

One of the characteristics of an obligation is its transience; every obligation inevitably leads to its extinction, preferably through fulfillment. However, although the end of every obligation is its extinction, this can occur in various ways.

In Roman law, which served as the basis for the structuring of contemporary contract law, there were basically two types of extinction of obligation, namely: ipso iure and exceptionis ope , which translated mean "by right" and "with the help of an exception".

While extinction ipso jure refers to the forms of extinguishing an obligation that effectively ended the binding relationship, that is, extinguished the substantive right itself, exceptionis ope refers to those that only suspended the effectiveness of the substantive right; the obligation continued to exist, but was stayed, suspended.

This distinction has an impact on contemporary law, since it is from this discrepancy that the ways of extinguishing an obligation through fulfillment, as well as the ways of preventing the effectiveness of an obligation, have been structured.

The exceptionis ope takes the place of the hypotheses that prevent the effectiveness of an obligation and forms the main defense arguments of the debtor; these arguments are scattered throughout the Civil Code (CC), for example, the exception of non-performance of contract, art. 476 of the CC.

Extinction ipso jure has replaced the extinction of the obligation itself through performance, both of which are established in Title III on the Performance of Obligations, articles 304 et seq. of the Civil Code. In this article, we will only discuss one of the ways in which an obligation can be extinguished: payment.

The standard way to extinguish an obligation: payment.

Payment is the ideal way to extinguish an obligation; it is fulfilled by the performance of the obligation in the manner agreed upon by the parties, and is the first to be regulated by the Code in Chapter I. Because it is the paradigmatic way of extinguishing obligations, all other methods of extinguishing an obligation derive from some alteration of simple payment, mainly in the way the obligation is fulfilled.

Because it is the standard form of fulfillment, the Code regulates it in more detail than all others, even subdividing each aspect of the fulfillment of the obligation into sections, namely: the person who pays ( solvens ), the person who receives ( accipiens ), the object of the payment, the place and, finally, the time.

The figure of the payer

To facilitate understanding, we will follow the subsections of the Code, therefore, we will begin with the figure of the person who pays , hereinafter, the payer. At first glance, one might understand that the figures of the payer and the debtor are synonymous; however, this conception is mistaken. The debtor is the person legally obligated to a certain prestation, while the payer is only the person who fulfills the obligation.

This distinction is important because the debtor is not always the payer; when this occurs, there are different legal consequences depending on who the payer is and their relationship to the obligation fulfilled. 

The Brazilian Civil Code (CC) differentiates third-party payers into two categories: interested third parties and uninterested third parties . An interested third party is one who has a relationship with the obligation fulfilled, for example, a guarantor or surety, while an uninterested third party is someone completely unrelated to the obligation that was fulfilled.

When a debt is paid by an interested third party, this party is subrogated to the creditor's rights in the contractual relationship with the debtor. Conversely, a third party who is not interested, upon settling the debtor's obligation, is only entitled to simple reimbursement . Payment by subrogation will be discussed further below; therefore, we will leave its explanation for a more appropriate time.

Finally, to conclude the section on the payer, it is important to highlight that article 306 of the Civil Code states that if payment is made by a third party without the debtor's knowledge, or even against their wishes, the debtor is not obliged to reimburse the third party in cases where they could have prevented such action, that is, they could have stopped the third party.

The figure of the receiver

With regard to the person who receives , hereinafter referred to as the receiver, similar to the previous observation regarding the debtor, the receiver should not be confused with the creditor; they are distinct legal situations. The creditor is the person to whom a certain obligation is owed, while the receiver is the person who receives a certain performance.

For the payment to be valid and the obligation extinguished, the recipient must always have some relationship with the creditor, since the payment must be made either to the creditor, or to their representative, or to a person who possesses the receipt issued by the creditor.

However, if the recipient has no relationship with the creditor, as a rule the obligation will not be extinguished, unless the creditor ratifies the payment, or the debtor demonstrates that the payment benefited the creditor, and finally, in the case of a putative creditor.

The case of the putative creditor is interesting; putative comes from the Latin putare , which in free translation means "to think," therefore, a putative creditor is the one whom the payer thought was the creditor, an imaginary creditor.

Therefore, if the payer fulfills the obligation to the putative creditor, the obligation is extinguished; however, for the obligation to be established, it is essential that there are objective elements for the merger, otherwise it is merely an invalid payment.

Object of payment and proof thereof.

After analyzing the parties to the obligation, we will now analyze the object of payment . This refers to the performance itself within the obligatory relationship, regulating how such payment should be made and under what circumstances the obligation may be altered. Furthermore, the same Section regulates how the receipt will be issued , which is the main means of proving payment.

The Civil Code aims to provide stability to the will of the parties; therefore, Article 313 of the Civil Code establishes that the creditor is not obliged to receive a performance different from that which is due, even if it is more valuable, much less to receive it in a manner different from that agreed upon, as per Article 314 of the Civil Code . This protection for the stability of private negotiations also favors the debtor, because in addition to not being obliged to pay something different from what was agreed upon, they are also not obliged to pay in a different manner, much less in advance, according to Article 315 of the Civil Code.

Although the legislator has avoided interfering in the relationship between private individuals, there are situations that require the intervention of the Public Authorities, for example, article 317 of the Civil Code provides for the case in which there is an unforeseeable disproportion between the nominal value and the real value of the obligation.

Just to illustrate, imagine that X has to pay Y R$100,00 in December 2024, but in October 2024 there was a sudden change in the market and the value of the dollar rose 100%. Naturally, the nominal value does not equal the real value of the installment due to the unpredictable change.

After the obligation is paid, the debtor has the right to receive a receipt, as this is the main means of proving that the obligation has been fulfilled and, consequently, extinguished. This document must contain the following information listed in Article 320 of the Civil Code : the amount, the type of obligation, the name of the debtor (or payer), the time and place of payment, and finally, the signature of the creditor.

The importance of such a document is such that the debtor can withhold payment if they refuse to provide a receipt, according to article 319 of the Civil Code . Furthermore, this impasse can be resolved through payment by consignment (this topic will be covered in a future article, so keep following the blog, but if you can't wait until then, enroll in the IDP's postgraduate course in Civil Procedural Law to gain in-depth knowledge on the subject).

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Furthermore, at the end of this section, there are some hypotheses for the presumption of fulfillment of obligations , for example: the return of the document that constitutes the obligation to the debtor and, in installment obligations, the payment of the last installment implies the payment of the others.

Place and time of the payment 

Although they are regulated in separate sections, we have decided to condense the analysis of the place and time of payment into this topic, as these factors are related to the method of payment.

Regarding the place of payment , Article 327 of the Civil Code establishes that, in the absence of a specified place of payment, the debtor's domicile will be presumed, unless the parties have designated a different place, or the law establishes another place. Furthermore, immediately following this, Article 328 of the Civil Code determines that obligations involving real estate will be fulfilled in the place where the property is located.

If it is no longer possible to make the payment at the designated location, the debtor may do so at another location without prejudice to the creditor, in accordance with article 328 of the Civil Code.

Finally, Article 330 of the Civil Code establishes something interesting: in cases where payment is made in installments, if these installments are consistently made in a location other than that agreed upon and the creditor does not object, the debtor may continue to pay in that location, a rare instance of *suppressio* and *surrectio* enshrined in the code.

This article demonstrates the loss of a creditor's right to claim after repeated breaches of the agreement, but did you know that a creditor can also lose their right to credit due to the passage of time ? No? Then check out my article published here on the blog to learn more.

Finally, regarding the time frame , if the parties have not agreed on a final term for fulfillment, the creditor may demand immediate performance at the moment the obligation is created; however, once a deadline is established, it must be respected.

The rule regarding the time limit is only made more flexible in the cases listed in article 333 of the Civil Code, namely: in cases of bankruptcy or civil insolvency, if the real guarantee is executed by another creditor, or if the guarantees become insufficient.

There is some debate in legal doctrine regarding judicial reorganization, specifically whether or not it allows for flexibility in the timeframe of obligations. If you're curious, follow the blog and register for the IDP's postgraduate course in Civil Procedural Law.

References:

Civil Law: Carlos E. Elias, João Costa – Neto; Rio de Janeiro: Forense 2022.

Roman Law: José Carlos Moreira Alves; Rio de Janeiro: Forense 2021.