Obligation to make
It is one that the creditor may require a debtor of his positive fact, an action where the debtor undertakes to adopt a behavior. The lender does not want one more thing, but a behaviour which must be lawful, possible physical (one that anyone can achieve) and legal (according to the law) is to be determined and / or determinable. The performance must have economy and utility. The effectiveness of the business to acquire this legal heritage.
In fact the obligation to make good material is one in which the creditor may require the debtor an activity material. Ex, debtor undertakes to build a wall. Ex, debtor is obligated to make a cake ...
Fact is immaterial positive one in which the creditor may require the debtor an intellectual activity. Ex, debtor undertakes to compose a song. Ex, debtor undertakes to write a novel ...
Fact good morals is one in which the creditor may require the debtor a moral activity. Ex, debtor undertakes to provide bail. Ex, debtor undertakes to grant deed ...
Obligation to admit two classifications:
The infungível is that action (activity) which can not be replaced in any way. Who determines if the thing is infungível is the subject (sometimes what may be for a infungível may not be to another). Infungível the obligation to make is when the person concerned is determining the birth of the obligation. Person of the debtor is the technical quality of the debtor (only he determines the purpose of the thing - personalíssima duty or obligation "intuitu personae"). If you hire someone famous, and for his claim that person is very important for the achievement. Ex, his claim is a picture, no matter the table or its design, but the person that painted.
Ex, Ivete Sangalo contract to sing in my party, is not any singer, is the Ivete Sangalo I want to sing that in my party.
The fungible (Art 249) is the one not interested in which the personal qualities of the person (debtor), the interest of the creditor is the final result. Ex, the debtor contract for the construction of a wall, but if he can not attend can mandar other, I am not interested who do vai the wall, I only want done.
The obligations to make fungible and infungíveis have distinction, but there the similarity found in breach (do not).
The breach was not operating with the how, not so with the provision of the fact. It is when the debtor fails adopts the behaviour expected by the creditor. This failure may be with or without guilt.
If the breach is operating without fault, there is the extinction of the obligation, the legal link, so as to the creditor to the debtor (just because the obligation). Ex, Ivete Sangalo contract to sing in my party, is not any singer, is the Ivete Sangalo I want to sing that in my party, but it never arrived, on behalf of a delay of 72 hours of flight without any guilt can not attend the event. Today ends the requirement.
If the breach is operating with guilt, the creditor will have the right damages - damages. Ex, Ivete Sangalo contract to sing in my party, is not any singer, is the Ivete Sangalo I want to sing that in my party, but it never arrived, because one day earlier came out, drank and the route to the hotel is just machucando . In this case there was fault, since the eve of submitting was unwise. And why should there be repair of damages.
But there were some reforms in the Code of Civil Procedure (CPC) which says that the repair of damages (compensation) will take place only if the creditor wants. In the CPC says that the debtor is obliged to provide it.
The code of civil procedure instrumentalizando the authority specifies search the credit, where the creditor has the option of choosing the constraint of the debtor to provide the fact, if the debtor does not want to provide any way the fact that the creditor can lead to the judgement debtor and Judge will judge a fine call ASTREINTES (daily fine which requires creditors to provide the fact), so the debtor is required to provide it.
** Who decides whether from the outset that the damage becomes in compensation is the creditor. But if there is the economic interest and useful on the fact ajuíza action to be provided with fine astreintes. But if there is no more interest on the fact that it was not provided converts already in the damage claims.
Ex, Ivete Sândalo contract to sing in my party, but it never arrived, because one day earlier came out, drank and the route to the hotel is just machucando. In this case there was fault because the eve of submitting was unwise. There has to judge because the action astreintes, forcing me to sing, and the event that I wanted the presence of it has passed, and therefore there is no more my interest in this case there must be repair of damages.
But if I contract a super stylist to make a dress for me without having any special occasion, I just want a dress, and it refuses to do so, I can come with a request for astreintes fine, which will force you to do .
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