One thing or another is owed: who chooses and when it is fixed

It is Section Two of Chapter II of Title I of Book Four of the Civil Code of 2020, Articles 1083 to 1091. It gathers two figures that look alike and are not the same: the alternative obligation, where several performances are owed and one is performed, and the obligation with a faculty of substitution, where one is owed and another may be performed.

Any debtor bound alternatively to several performances, and any creditor or third party to whom the choice has been expressly or tacitly granted.

• Performing one of the performances completely: Article 1083 does not allow performing a piece of each.Verified against the official source
• Notifying the choice to the other party, or to both parties if a third party chooses: without notification the choice has no effect.Verified against the official source
• Where there are several debtors, making the choice jointly: Article 1085 requires it.Verified against the official source

• The record of the notification of the choice, because the obligation ceasing to be alternative depends on it.

1. 1

   Step 1: One, but whole

   Article 1083 defines the figure in a line: a person bound alternatively to several performances must perform one of them completely. Half of each is not performance.

2. 2

   Step 2: Who chooses

   Article 1084 sets the rule and its two exceptions. The choice belongs to the debtor, unless expressly or tacitly granted to the creditor or a third party. And it reverts to the debtor if the creditor or the third party to whom it was assigned is called upon to make it and does not.

3. 3

   Step 3: The choice is worth nothing until it is announced

   This is the point most often missed. The same Article 1084 says it: in every case the choice only takes effect when notified to the other party, or, if the choice belongs to a third party, when notified to both parties. And it adds the consequence: once notification is made, the obligation ceases to be alternative.

4. 4

   Step 4: If there are several debtors

   Article 1085 fits in a handful of words: where there are several debtors, the choice must be made jointly. None chooses on their own.

5. 5

   Step 5: If the debtor chooses and something becomes impossible

   Article 1086 settles it in four rules. The obligation ceases to be alternative if only one of the performances owed is feasible. If some performances are impossible, the debtor chooses among the surviving ones, even if they became impossible through a cause imputable to them. If all are impossible through causes imputable to the debtor, they must return the counter-performance to the creditor, if any, and pay damages according to the value of the last performance that became impossible. And if all become impossible by fortuitous event, the obligation is extinguished.

6. 6

   Step 6: If the creditor or a third party chooses

   Article 1087 changes the measure of damages. If all performances are impossible through causes imputable to the debtor, the debtor returns the counter-performance, if any, and pays damages according to the value of the impossible performance the creditor picks. If some are impossible through causes imputable to the debtor, the creditor may choose one of the surviving ones, require the third party to choose it, or demand damages according to the value of the impossible performance they pick, with the debtor returning the counter-performance if any. If some are impossible without the debtor’s fault, the creditor chooses among the surviving ones. And if all are impossible without the debtor’s fault, the obligation is extinguished and the debtor returns the counter-performance, if any.

7. 7

   Step 7: The third party who does not choose

   Article 1088 gives the third party the same options the two preceding articles confer on debtor and creditor, exercised in their favour. And it closes the gap: failure by the third party to choose attributes that power to the debtor.

8. 8

   Step 8: The other figure: faculty of substitution

   Article 1089 defines it: in the obligation with a faculty of substitution, the debtor may be released by performing the determined performance that is the object of the obligation or by substituting another, also determined, and the creditor may only demand the performance to which the debtor is directly bound. The debtor’s option is exercised only by performing: there is no prior notification as in the alternative obligation.

9. 9

   Step 9: And why the difference matters

   Because of Article 1090: the obligation with a faculty of substitution is determined exclusively by the performance that is its object, and it is extinguished if that performance becomes impossible without the debtor’s fault and before they are in delay, even if the substitute performance could be performed. In the alternative obligation, by contrast, while one feasible performance remains the obligation stays alive. And if it is unclear which of the two was agreed, Article 1091 settles it: in case of doubt, it is taken to be the obligation with a faculty of substitution.

These rules operate between the parties to the obligation; the call on the creditor or third party to choose, and the claim for damages, end up, failing agreement, before the Court of First Instance. The Code names no agency here.

• Performing a little of each: one of them must be performed completely.
• Treating the choice as made without notifying it: it only takes effect when notified to the other party.
• Believing you can change your mind after notifying: once the choice is notified, the obligation ceases to be alternative.
• Assuming the choice is always the creditor’s: it belongs to the debtor unless granted to someone else.
• Forgetting that the choice reverts to the debtor if the creditor or third party, called upon, does not choose.
• Choosing separately where there are several debtors: the choice must be made jointly.
• Measuring damages by the same performance in both cases: if the debtor chooses, by the last one that becomes impossible; if the creditor chooses, by the one they pick.
• Treating as alternative an obligation with a faculty of substitution: in case of doubt, the Code settles on the second.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov