Delivering a thing: accessories, expenses and who bears the loss

It is Subsection One of Section One of Chapter II of Title I of Book Four of the Civil Code of 2020, Articles 1066 to 1073. It governs the obligation whose content is to hand over a thing: what is delivered, who pays what, who keeps the fruits and what happens if the thing is lost or damaged before delivery.

Anyone who must deliver a thing to another, whether to constitute a real right, to transfer its use or possession, or to restore it to its owner. These rules apply unless the law or the obligation itself says otherwise.

• Keeping the thing until delivery as a diligent debtor would: subsection (a) of Article 1067.Verified against the official source
• Delivering it with all its accessories, even if momentarily separated from it and even if not mentioned.Verified against the official source
• Paying the expenses of preservation and delivery. The expenses of receiving fall on the creditor.Verified against the official source
• If the obligation is generic, individualizing what is owed: the debtor chooses at equal or better than average quality, the creditor at equal or worse than average, and a third party at average quality.Verified against the official source

• The title of acquisition and, for an immovable, the record of its recording: the preference in Article 1069 depends on it where the same debtor bound themselves to several creditors.
• Evidence of the thing’s condition before delivery, because Article 1070 allocates the risk by loss or deterioration and by whose fault it was.

1. 1

   Step 1: What "giving" means in the Code

   Article 1066 defines it: the obligation to give has as its object the delivery of a thing, movable or immovable, in order to constitute a real right, to transfer its use or possession, or to restore it to its owner. Those are three distinct purposes, and returning something borrowed fits as much as selling.

2. 2

   Step 2: What is included, and who pays what

   Article 1067 adds three duties to whoever must give a specific thing: keeping it until delivery as a diligent debtor would; delivering it with all its accessories, even if momentarily separated from it and even if not mentioned; and paying the expenses of preservation and delivery. And it closes with the one item that changes sides: the expenses of receiving fall on the creditor.

3. 3

   Step 3: The fruits are owed before the real right

   Article 1068 separates two moments. Where the obligation to give is to constitute a real right authorizing the collection of fruits, the creditor is entitled to them from when the obligation to deliver arises. But, the same article says, they acquire no real right while the thing has not been delivered. Being entitled to the fruits is not yet being the holder.

4. 4

   Step 4: If the same thing was promised to two people

   Article 1069 orders the preference. For immovables: preference to the creditor acting in good faith whose title was recorded first; failing recording, to whoever in good faith is first in possession; and failing that, to whoever presents the oldest-dated title, always in good faith. For movables there is a single rule: preference to the creditor who first took possession of the thing in good faith. Good faith appears at every rung.

5. 5

   Step 5: If the thing is lost before delivery

   Article 1070 settles it by fault. If the thing is lost through no one’s fault, the obligation is extinguished. If it is lost through the debtor’s fault, the debtor is released from the performance but remains liable for damages, and the creditor stops owing their counter-performance, if any; further, if the debtor obtains an indemnity or acquires a right against a third party in substitution for the performance owed, the creditor may demand that indemnity or subrogate into the right against the third party, and the damages are then reduced by the corresponding amounts. If it is lost through the creditor’s fault, the debtor is released but keeps the right to the counter-performance, if any, reduced by whatever benefit the release brings.

6. 6

   Step 6: And if it only deteriorates

   The same Article 1070 continues. If the thing deteriorates through no one’s fault, the debtor bears the consequences and the counter-performance, if any, is proportionally reduced, with the rights and actions arising from the deterioration going to the debtor. If it deteriorates through the debtor’s fault, the creditor may choose to rescind the obligation or to receive it as it stands and demand a reduction of the counter-performance and damages; if the deterioration is slight, they may demand the reduction. If it deteriorates through the creditor’s fault, the creditor must receive it as it stands, with no reduction. And if the thing improves by its nature or with time, the improvements go to the creditor; if it improves at the debtor’s expense, the debtor has no right other than the one granted to a usufructuary.

7. 7

   Step 7: What counts as loss and what as deterioration

   The Code leaves this to nobody’s judgement. A thing is understood to be lost when it perishes, when it falls outside legal commerce, or when it disappears so that its existence is unknown or it cannot be recovered. And it is understood to deteriorate when it suffers a reduction in value, although it remains fit for its purpose.

8. 8

   Step 8: When what is owed is "ten sacks", not "this sack"

   Article 1071 calls generic the obligation falling on things determined only by species and quantity, and requires them to be individualized. The choice belongs to the debtor, who must pick goods of equal or better than average quality. If it belongs to the creditor, they must pick equal or worse than average. If to a third party, average quality. Once the choice is made, the rules for giving a specific thing apply. Article 1072 extends the same to a limited genus: where the debtor must deliver an uncertain thing within a number of certain things of the same species.

9. 9

   Step 9: If they do not deliver

   Article 1073 draws a line. If what must be delivered is a specific thing, the creditor — independently of their right to damages for delay — may compel the debtor to deliver. If the thing is generic, they may ask that the obligation be performed at the debtor’s expense. The general rules on breach and delay are in Title II of this same book, which this guide does not cover.

These are civil-law rules that apply between the parties to the obligation; where they are not complied with, the Court of First Instance decides. The Code names no agency and no counter here.

• Delivering the thing without its accessories because the contract did not mention them: Article 1067 includes them even if unmentioned.
• Charging the creditor for delivery expenses: those are the debtor’s; the creditor’s are the expenses of receiving.
• Neglecting the thing between agreement and delivery: it must be kept as a diligent debtor would.
• Believing you own it from signing: no real right is acquired while the thing has not been delivered.
• Failing to record the title to an immovable where the same seller bound themselves to more than one: recording decides first.
• Assuming the debtor always bears the loss: where no one is at fault, the obligation is extinguished.
• Forgetting the indemnity that replaces the lost thing: the creditor may demand it or subrogate into the right against the third party.
• Picking the worst goods in the lot when the choice is the debtor’s: it must be of equal or better than average quality.

These are the government pages this guide is based on.

• Poder Judicial de Puerto Rico

  Poder Judicial

  bvirtualogp.pr.gov