Table of Contents
SECTION V - OF OBLIGATIONS DIVISIBLE AND INDIVISIBLE
Art. 117. An obligation is divisible or indivisible, according as it has for its object, either a thing which in its delivery, or a fact which in its execution, is or is not susceptible of division whether material or intellectual.
Art. 118. The obligation is indivisible, though the thing or the fact which is the object of it, be by its nature divisible, if the light in which it is considered in the obligation, does not admit of its being partially executed.
Art. 119. The stipulation in solido does not give to the obligation the character of indivisibility.
§ 1 - OF THE EFFECTS OF A DIVISIBLE OBLIGATION
Art. 120. An obligation susceptible of division, must be executed between the creditor and the debtor, as though it were indivisible. The indivisibility is applicable only with regard to their heirs, who can demand of the debt, or who are liable to pay of it, only the part which they hold, or for which they are liable as representing the creditor or the debtor.
Art. 121. To the principle laid down in the preceding article, there is an exception with regard to the heirs of the debtor:
1stly. In case the debt be on a mortgage:
2ndly. When it is of a certain substance:
3rdly. When the debt is alternative of things at the option of the creditor, one of which is indivisible;
4thly. When one of the heirs is alone charged, by the title, with the execution of the obligation:
5thly. When it results, either from the nature of the engagement, or from the thing which is its object, or from the end proposed by the contract, that it was the intention of the parties that the debt should not be partially discharged.
In the three former cases, the heir who is in possession of the thing due, or of the property mortgaged for the debt, may be sued for the whole on the thing due or on the property mortgaged, but he has recourse against the co-heirs.
In the fourth case, the heir alone is charged with the debt, and in the fifth case, every one of the heirs, may also be sued for the whole; but the one sued has his recourse against the co-heirs.
§ 2 - OF THE EFFECT OF THE INDIVISIBLE OBLIGATION
Art. 122. Every one of those who have conjointly contracted an indivisible debt, is liable to the whole, even though the obligation was not contracted in solido.
Art. 123. The case is the same with regard to the heirs of him who has contracted such an obligation.
Art. 124. Every heir of the creditor may require the execution of the indivisible obligation.
He cannot alone remit the whole of the debt; he cannot alone receive the price instead of the thing. If one of the heirs has alone remitted the debt, or received the price of the thing, his co-heirs cannot demand the indivisible thing, without making allowance for the portion of the co-heir who has remitted the debt, or has received the price.
Art. 125. The heir of the debtor being sued for the whole of the obligation, may demur on the plea that the suit ought to be brought also against his co-heirs, unless the debt be of such a nature, that it can be discharged only by the heir sued, against whom, in that case, judgement may be given, he having recourse for indemnification against his co-heirs.
SECTION VI - OF OBLIGATIONS WITH PENAL CLAUSES
Art. 126. A penal clause is that by which a person, to secure the execution of an agreement, binds himself in something, in case of non execution.
Art. 127. The nullity of the principal obligation involves that of the penal clause.
The nullity of the latter does not involve that of the principal obligation.
Art. 128. The creditor instead of exacting the penalty stipulated from the debtor who is in default, may sue for the execution of the principal obligation.
Art. 129. The penal clause is the compensation for the damages which the creditor sustains by the non-execution of the principal obligation.
He cannot demand the principal and the penalty together, unless the latter be stipulated for the mere delay.
Art. 130. Whether the principal obligation contain, or do not contain, a term which it is to be fulfilled, the penalty is forfeited only when he who has obligated himself, either to deliver, to take, or to do, is in delay.
Art. 131. The penalty may be modified by the judge, when the principal obligation has been partly executed, except in case of a contrary agreement.
Art. 132. When the primitive obligation contracted with a penal clause is of an indivisible thing, the penalty is forfeited by the default of any one of the heirs of the debtor, and it may be exacted, either wholly against him who has been in default, or against every one of the co-heirs, for his part and portion, and in case of mortgage, for the whole, they having their remedy against him by whose default the penalty was forfeited.
Art. 133. When the primitive obligation contracted under a penalty, is divisible, the penalty is incurred only by that one of the debtor's heirs, who contravened the obligation, and only for the part for which he was liable in the principal obligation, no action lying against those who have executed it.
This rule has this exception, that when the penal clause having been added in the intention that the payment should not be made partially, a co-heir has prevented the execution of the obligation for the whole.
In that case, the entire penalty may be exacted of him, and against the other co-heirs only for their part; but the latter have their recourse against the former.
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