Forgiving a debt: when conduct is enough and when form is required

They are Chapters I and II of Title IV of Book Four of the Civil Code of 2020, Articles 1170 to 1175. They cover the general rule on the other ways of extinguishing an obligation and the first of them: remission, which is forgiving the debt.

Any creditor who wants to forgive what is owed to them and any debtor who has been forgiven, expressly or tacitly. Remission is further governed by the precepts on inofficious donations.

• For express remission, conforming to the forms of donation, which Article 1171 invokes and the Code regulates elsewhere.Verified against the official source
• For tacit remission, that the intention to extinguish the obligation be inferred from the unequivocal conduct of the party against whom it is imputed.Verified against the official source
• That the delivery of the private document evidencing the credit was voluntary: that is what implies the waiver of the action.Verified against the official source

• The private document evidencing the credit. Its being in the debtor’s possession raises the presumption that the creditor delivered it voluntarily, unless the contrary is proved.
• The pledged thing, if there was one: being in the debtor’s possession after delivery to the creditor raises the presumption that the pledge was remitted.

1. 1

   Step 1: The principal drags the accessory, not the other way round

   Article 1170 opens the title with two rules. The first: besides payment or performance, the obligation is extinguished by the means established in this title and the others established by law. The second, repeated later for remission: extinction of the principal obligation extinguishes the accessory obligations, and extinction of the accessory obligations does not extinguish the principal one.

2. 2

   Step 2: Forgiving can be said or done

   Article 1171 admits both routes: remission may be made expressly or tacitly. But it puts both in the same frame: both are governed by the precepts governing inofficious donations. And it adds an extra requirement to the express one: it must also conform to the forms of donation.

3. 3

   Step 3: What form a donation requires: we do not say here

   Because this chapter does not say. Article 1171 refers to the rules on donations, which live elsewhere in the Code and which we did not read for this batch. So in this guide you will not find whether a deed, witnesses or recording are needed for an express remission: you will find the referral, exactly as the statute leaves it.

4. 4

   Step 4: When conduct is enough

   Article 1172 defines it: there is tacit remission where the intention to extinguish the obligation is inferred from the unequivocal conduct of the party against whom the remission is imputed. The deciding word is "unequivocal": an ambiguous gesture is not enough.

5. 5

   Step 5: Handing back the paper of the debt

   The same article names the typical case: the voluntary delivery to the debtor of the private document evidencing a credit implies the waiver of the action the creditor had against them. And it foresees the argument that follows: if, to invalidate that waiver, it is alleged to be inofficious, the debtor and their heirs may sustain it if they prove the delivery of the document was made by virtue of payment of the debt.

6. 6

   Step 6: If you hold the paper, delivery is presumed

   Article 1173 is the most useful rule in the chapter: whenever the private document from which the debt arises is found in the debtor’s possession, it is presumed that the creditor delivered it voluntarily, unless the contrary is proved. The burden of proving otherwise falls on whoever alleges it.

7. 7

   Step 7: Forgiving the debt forgives the securities

   Article 1174 repeats the rule of 1170 applied to remission: remission of the principal debt extinguishes the accessory obligations; where the accessory ones are remitted, the principal subsists. Forgiving the surety does not forgive the debt.

8. 8

   Step 8: And a presumption for the pledge

   Article 1175 closes the chapter: the accessory obligation of pledge is presumed remitted where the pledged thing, after being delivered to the creditor, is found in the debtor’s possession. Getting the pledged thing back raises the presumption that the security was released, not that the debt was paid.

Remission happens between creditor and debtor; there is no counter. If it is disputed whether there was remission, whether delivery of the document was voluntary, or whether the remission is inofficious, the Court of First Instance decides. The Code names no agency here.

• Treating a debt as forgiven on an ambiguous gesture: tacit remission requires unequivocal conduct.
• Making an express remission without conforming to the forms of donation.
• Handing the debtor back the private document of the credit without meaning to waive the action.
• Believing holding the document proves nothing: if it is in the debtor’s possession, voluntary delivery is presumed.
• Forgetting that presumption admits proof to the contrary.
• Thinking that forgiving the surety or the pledge forgives the debt: remitting the accessories leaves the principal alive.
• Ignoring that remitting the principal debt does extinguish the accessory obligations.
• Leaving the pledged thing in the debtor’s hands without noticing the pledge is presumed remitted.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov