Performance rendered by third parties/to third parties
In many cases (particularly when he is owed a sum of money) the creditor will be concerned only about receiving performance, not necessarily about receiving it from his debtor. Hence the provision in the BGB (§ 267) that third parties are entitled to make performance on behalf of the debtor even without the approval of the latter.
In the same vein, Gaius states: "Solvendo quisque pro alio licet invito et ignorante liberal eum."[3846] Neither in Roman nor in modern law,[3847] [3848] however, does this rule apply without exception. Whenever the nature of the performance is determined by special qualities of the debtor—his skill, knowledge or experience—performance has to be made in person. If the creditor has asked a specific entrepreneur to build a ship or a house for him, he is entitled to expect performance in person and cannot be obliged to accept the work of another manufacturer: "[ijnter artifices longa differentia est et ingenii et naturae et doctrinae et institutions. 1,36 If it often does not matter who renders performance, it is, as a rule, important that it is made to the creditor and not to any third party. The creditor has, however, always been able to authorize another to receive performance.[3849] The procurator,[3850] particularly, was often in such a position. Alternatively, performance to a third party could terminate the obligation if the creditor was prepared (subsequently) to ratify it.[3851] Occasionally, even an ostensible authority was sufficient. lulianus gives the following example:"Si Titium omnibus negotiis meis praeposuero, dcinde vetuero cum ignorantibus debitoribus administrate ncgotia mea, debitorcs ei solvendo liberabuntur: nam is, qui omnibus negotiis suis aliquem proponit, intellegitur etiam debitoribus mandare, ut procurator! solvant."[3852]"
At the time of performance Titius' authority to manage the creditor's affairs had been withdrawn.
This was not known to the debtors, who still relied on the appointment of Titius as the creditor's procurator. Such reliance deserves protection, and thus the debtors' performance to Titius was taken to have discharged their obligations. Very similar considerations prevail in the modern law of agency.[3853] Finally, a debtor was able to discharge his obligation by performing towards a solutionis causa adiectus:[3854] [3855] this was a third party (for instance, a bank) specifically incorporated into the wording of a stipulation as an alternative recipient of the promisor's performance ("mini aut Titio dari spondes?"). Of course, he could not sue for performance, for then we would have been dealing with a stipulatio alteri.[3856] Once the debtor had been given the choice of performing either to the stipulator himself or to a solutionis causa adiectus, the creditor could no longer unilaterally withdraw that choice.[3857]5.
More on the topic Performance rendered by third parties/to third parties:
- The concept, sketched in the preceding chapter, of the obligatio as being a strictly personal bond between the two parties who had concluded the contract found highly characteristic expression in the fact that Roman law did not recognize contracts in favour of third parties, (direct) agency and the cession of rights.
- The societas and third parties
- THE DUTIES OF THE PARTIES
- Parties in civil trials
- A contract is based on the consent of the parties thereto.
- Consensual contracts (contractus consensu) were contracts constituted by the mere agreement (consensus) of the parties.
- If a Frenchman and a Belgian meet in Hamburg, and the one sells his car to the other for 2 000 francs, the question arises as to what currency the parties have intended: 2 000 French or Belgian francs.
- Performance
- Time and place of performance
- Specific performance in South African law
- Specific performance in English law