In the law of obligations, it is possible to distinguish between what are generic obligations and specific obligations regarding “giving obligations”. When signing a contract, it is not superfluous to know clearly what this distinction is and its possible repercussions for non-compliance with the obligation, depending on whether it is generic or specific.
We go on to publish a very good schematic summary on this very broad subject.
I. SCOPE AND SCOPE OF THE DISTINCTION
In the obligations to give, a distinction must be made between generic and specific.
- Specific obligation is one where the provision of the debtor is individualized and the delivery of something different does not satisfy the creditor. Generic obligation is one characterized by the relative determination of the thing object of the benefit.
- They do not necessarily fall on fungible things and services. Expendable goods are those that can be substituted by others because they are equivalent to each other, and they are sub-distinguished between ordinary or limited gender.
- Limited gender obligations occur when the object of the service is determined not only by its belonging to a genus, but by a series of data that delimits the object of the obligation (eg oil belonging to a specific type of olive).
- They do not necessarily fall on fungible things and services. Expendable goods are those that can be substituted by others because they are equivalent to each other, and they are sub-distinguished between ordinary or limited gender.
II. LEGAL REGIME OF GENERIC OBLIGATIONS.
The legal regime poses two problems, the quality of the thing to be delivered and the repercussion of the loss of the thing itself.
III. THE RULE OF AVERAGE QUALITY: ART. 1167 CC
In a contract, the quality of the thing to be delivered may have been determined. In practice, it is problematic, either due to the unforeseen by the parties or due to the obligation of non-contractual liability. "The creditor may not demand a thing of superior quality, nor the debtor deliver it of inferior quality."
IV. THE LOSS OF THE THING AND THE GENUS NUNQUAM PERIT RULE.
- Specific obligation: The loss must lead to the extinction of the obligation, as long as the loss is not due to fraud, fault or default on the part of the debtor. If so, it would become an obligation to pay compensation. Generic obligation: The loss can be replaced by something else fungible.
V. THE INDIVIDUALIZATION OF THE BENEFIT IN THE GENERIC OBLIGATIONS
At some point the indeterminacy must disappear, specifying which of the possible things is delivered or what service is performed. The specification cannot be carried out unilaterally by the debtor or by the creditor. The specification usually coincides with the solutory moment (final moment of the obligation) unless it occurs before because:
- it would have been foreseen in the constitutive title or, except for one, the rest are impossible.
SAW. THE DIFFERENCE BETWEEN SPECIFIC AND GENERIC OBLIGATIONS REGARDING FORCED EXECUTION
- If the thing is undetermined or generic, the creditor may request that the obligation be fulfilled at the expense of the debtor. In the case of a specific obligation, the creditor may compel the debtor to make the delivery and, in case it does not fulfill it, the benefit will become an obligation to pay compensation for damages.
