4. The cession must be accepted by the creditors Effect of payment by cession Assignment does not make the creditors the new owners of the property of the debtor and the debtor is released from his obligation only up to the net proceeds of the sale of the property assigned. The debtor is still liable for the remain. Dation in payment and cession distinguished 1. Dation there is only one creditor Cession there are several creditors 2. Dation does not presuppose the insolvency of the debtor Cession , the debtor is insolvent at the time of assignment. 3. Dation does not involve all the property of the debtor Cession extend to all the property of the debtor subject to execution. 4. Dation , creditor becomes the owner of the thing given by the debtor Cession , the creditors only have the right to sell the thing and apply the proceeds to their credits proportionately. 5. Dation is really an act of novation Cession is not an act of novation. Subsection 3 – Tender of payment and consignation Art. 1256. If creditor to whom tender of payment has been refused without just cause to accept it, the debtor shall be released from responsibility by the consignation of the thing sum due. Consignation alone shall produce the same effect in the following cases: 1. When the creditor is absent or unknown or does not appear at the place of payment. 2. When he is incapacitated to receive the payment at the time it is due. 3. When without just cause, he refuses to give receipt 4. When two or more person claim the same right to collect 5. When the title of the obligation has been lost Tender of payment is the act, on the part of the debtor, of offering to the creditor the thing or amount due. Consignation is the act, of depositing the thing or amount due with the proper court when the creditor does not desire or cannot receive it, after complying with the formalities required by law. Requisites of valid consignation 1. Existence of a valid debt which is due 2. Tender of payment by the debtor and refusal without justifiable reason by the creditor to accept it. 3. Previous notice of consignation to person interested in the fulfillment of the obligation 4. Consignation of the thing or sum due 5. Subsequent notice of consignation made to the interested parties Requirements for valid tender of payment 1. Tender of payment must comply with the rules on payment or with the terms required by the contract in making such tender 2. It must be unconditional and for the whole amount due and in legal tender. 3. It must be actually made. The debtor must show the present ability to perform by an actual offer of the thing or money due. Art.1257. In order that the consignation of the thing due may release the obligor, it must first be announced to the persons interested in the fulfillment of the obligation.
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- Fall '19
- Debt, remission, Consignation