ART. 1139. If the division should be impossible, the right of the creditors shall only be prejudiced by the collective acts of the same, and the debt shall only be recoverable by proceedings against all of the debtors. If any of the latter should be insolvent, the rest shall not be obliged to pay his share.

ART. 1140. Solidarity may exist, even though the creditors and debtors are not bound in the same manner, and for the same periods and under the same conditions.

ART. 1141. Each of the joint creditors may do whatever may be profitable to the others, but not what may be prejudicial.

The actions instituted against any one of the joint debtors shall prejudice all of them.

ART. 1142. A debtor may pay the debt to any one of the joint creditors; but should it have been sued by any one of them, he must make the payment to the latter.

ART. 1143. Novation, compensation, confusion, or remission of the debt, made by any of the joint creditors, or with any of the debtors of the same class, extinguishes the obligation without prejudice to the provisions of article 1146.

A creditor who may have executed any of these acts, as well as the person who collects the debt, shall be liable to the others for the part pertaining to them in the obligation.

ART. 1144. A creditor may sue any of the joint debtors or all of them simultaneously. The actions instituted against one shall not be an obstacle for those that may be brought subsequently against the others, as long as it does not appear that the debt has been collected in full.

ART. 1145. The payment made by one of the joint debtors extinguishes the obligation.

The person who made the payment can only claim from his codebtors the share pertaining to each one with interest on the amounts advanced.

The non fulfillment of the obligation by reason of the insolvency of a joint debtor shall be made good by his codebtors in proportion to the debt of each of them.

ART. 1146. The waiver or remission made by the creditor of the part affecting one of the joint debtors does not release the latter from his liability with regard to the codebtors in case the debt should have been paid in full by any of them.

ART. 1147. If the thing should have perished, or the prestation should have become impossible, without any fault of the joint debtors, the obligation shall be extinguished.

If there should have been any fault on the part of any of them, all shall be liable with regard to the creditor for the value and the indemnity for damages and payment of interest, without prejudice to his action against the culpable or negligent person.

ART. 1148. A joint debtor may utilize, against the claims of the creditor, all the exceptions arising from the nature of the obligation and those which are personal to him. Those personally pertaining to the others may be employed by him only with regard to the share of the debt for which the latter may be liable.

SECTION FIFTH.-Divisible and indivisible obligations.

ART. 1149. The divisibility or indivisibility of things, the object of obligations, in which there is one debtor and one creditor, does not change nor modify the provisions of chapter second of this title.

ART. 1150. An indivisible several obligation is determined by indemnifying for losses and damages from the time any of the debtors fails to comply therewith. The debtors who may have been disposed to perform their obligations shall only contribute to the indemnity a sum equivalent to the corresponding portion of the value of the thing or of the service of which the obligation may consist.

ART. 1151. For the purposes of the preceding articles the obligations to give specified things and all those which are not capable of partial fulfillment shall be considered as indivisible.

The obligations of doing shall be divisible when their purpose is the prestation of a number of days of work, the execution of works by units of measurement, or other similar things which by reason of their nature are capable of partial fulfillment.

In obligations of not doing the divisibility or indivisibility shall be decided by the character of the prestation in each particular case.

SECTION SIXTH.-Obligations with a penal clause.

ART. 1152. In obligations with a penal clause the penalty shall substitute indemnity for damages and the payment of interest in case of non fulfillment, should there be no agreement to the contrary.

This penalty can only be enforced when it is demandable in accordance with the provisions of this code.

ART. 1153. The debtor can not exempt himself from the fulfillment of the obligation by paying the penalty, unless such right has been expressly reserved to him. Neither may the creditor exact the fulfillment of the obligation and also the payment of the penalty, unless such right has been clearly granted him.

ART. 1154. The judge shall equitably mitigate the penalty if the principal obligation should have been partly or irregularly fulfilled by the debtor.

ART. 1155. The nullity of the penal clause does not carry with it that of the principal obligation.

The nullity of the principal obligation carries with it that of the penal clause.

CHAPTER FOURTH.-Extinction of obligations.

GENERAL PROVISIONS.

ART. 1156. Obligations are extinguished

By their payment or fulfillment.

By the loss of the thing due.

By the remission of the debt.

By the merging of the rights of the creditor and debtor.

By compensation.

By novation.

SECTION FIRST.-Payment.

ART. 1157. A debt shall not be considered as paid until the full amount of the thing has been delivered, or the prestation of which the obligation consisted has been made.

ART. 1158. Any person, whether he has an interest or not in the fulfillment of the obligation, and whether the debtor knows and approves it or is not aware thereof, can make the payment.

The person paying for the account of another may recover from the debtor what he may have paid, unless he has done it against his express will.

In such case he can only recover from the debtor in so far as the payment has been useful to him.

ART. 1159. A person paying in the name of the debtor, without the knowledge of the latter, can not compel the creditor to subrogate him in his rights.

ART. 1160. In obligations to give, the payment made by a person not having the free disposal of the thing due, and capacity to convey it, shall not be valid.

However, if the payment should have consisted in a sum of money or in a thing perishable, no action can be brought against the creditor who may have spent or consumed it in good faith.

ART. 1161. In obligations of doing, the creditor can not be compelled to receive the prestation or the services from a third party, when the quality and circumstances of the person of the debtor should have been taken into account in establishing the obligation.

ART. 1162. Payment must be made to the person in whose favor the obligation is constituted, or to another authorized to receive it in his

name.

ART. 1163. The payment made to a person who is incapacitated from managing his property shall be valid in so far as it may have been employed for his benefit.

A payment made to a third person shall also be valid in so far as it may have been beneficial to the creditor.

ART. 1164. A payment made in good faith to the person who is in possession of the credit shall release the debtor.

ART. 1165. A payment made by the debtor to the creditor after he has been judicially ordered to retain the debt shall not be valid.

ART. 1166. The debtor of a thing can not oblige his creditor to receive a different one, even though it should be of equal or greater value to that due.

Neither in obligations of doing can a prestation be substituted by another against the will of the creditor.

ART. 1167. If the obligation should consist in the delivery of a thing, not specified or generic, the quality and circumstances of which should not have been expressed, the creditor can not exact one of a superior quality nor can the debtor deliver one of an inferior quality. ART. 1168. Extrajudicial expenses arising from the payment shall be charged to the debtor. With regard to judicial expenses the court shall decide in accordance with the law of civil procedure.

ART. 1169. Unless the contract expressly authorizes it the creditor can not be compelled to partially receive the prestations of which the obligation consists.

However, should the debt be in part determined and in part undetermined, the creditor may exact and the debtor may make payment of the former without awaiting for the liquidation of the latter.

ART. 1170. Payments of debts of money shall be made in the specie stipulated and, should it not be possible to deliver the specie, in legal silver or gold coin current in Spain.

The delivery of promissory notes to order or drafts or other commercial paper shall only produce the effects of payment when collected or when, by the fault of the creditor, their value has been affected.

In the meantime the action arising from the original obligation shall be suspended.

ART. 1171. Payments shall be made at the place designated in the obligation.

Should it not have been designated, and when a determined thing is to be delivered, the payment shall be made at the place where the thing existed at the time of constituting the obligation.

In any other case the place of payment shall be that of the domicile of the debtor.

Application of payments.

ART. 1172. A person having several debts of the same kind in favor of a single creditor may declare, at the time of making a payment, to which of them it is to be applied.

If the debtor should accept a receipt from the creditor, setting forth the application of the payment, he can not make a claim against it, unless there should be some cause which may invalidate the contract.

ART. 1173. If the debt bears interest the payment can not be considered as made on account of the principal until the interest is

covered.

ART. 1174. When the payment can not be applied according to the preceding rules the debt which is most onerous for the debtor among those which may be due shall be considered as the one paid.

If the latter should have the same nature and charges the payment shall be applied to all pro rata.

Payment by assignment of property.

ART. 1175. The debtor may assign his property to creditors in payment of his debts. This assignment releases the former from liability only to the net amount of the property assigned, unless there is an agreement to the contrary. Agreements entered into between the debtor and his creditors with regard to the effect of an assignment shall be made in accordance with the provisions of title seventeen of this book and with those of the Law of Civil Procedure.

Tender of payment and consignation.

ART. 1176. If the creditor to whom the tender of payment has been made should refuse to accept it, without reason, the debtor shall remain released from all liability by the consignation of the thing due. The same effect shall be produced by the consignation alone when made in the absence of the creditor, or when the latter should be inca

pacitated to accept the payment when it is due, and when several persons claim to have a right to collect it, or when the instrument mentioning the obligation has been mislaid.

ART. 1177. In order that the consignation of the thing due may release the obligee, notice thereof must previously be given to the persons interested in the fulfillment of the obligation.

Consignation shall have no effect when not strictly in accordance with the provisions governing payment.

ART. 1178. Consignation shall be made by depositing the things due at the disposal of the judicial authority before whom the tender shall be proven in a proper case and the notice of the consignation in other cases.

After the consignation has been made the persons interested shall also be notified thereof.

ART. 1179. The expenses of the consignation, when proper, shall be charged to the creditor.

ART. 1180. After the consignation has been duly made the debtor may request the judge to order the cancellation of the obligation.

Until the creditor may accept the consignation or a judicial decision should be rendered that it was properly done, the debtor may withdraw the thing or amount consigned, leaving the obligation in force. ART. 1181. If, after the consignation has been made, the creditor should authorize the debtor to withdraw it, the former shall lose the preference he may have in the thing. The codebtors and sureties shall be released.

SECTION SECOND.-Loss of the thing due.

ART. 1182. An obligation, consisting in the delivery of a specified thing, shall be extinguished when said thing should be lost or destroyed without fault of the debtor and before he should be in default. ART. 1183. Whenever the thing should be lost, when in the possession of the debtor, it shall be presumed that the loss occurred by his fault and not by a fortuitous event, unless there is proof to the contrary and without prejudice to the provisions of article 1096.

ART. 1184. In obligations to do, the debtor shall also be released when the prestation appears to be legally or physically impossible. ART. 1185. When the debt for a certain and specified thing arises from a crime or misdemeanor the debtor shall not be exempted from the payment of its value, whatever the cause of the loss may have been, unless, having offered the thing to the person who should have received it, the latter should have refused to accept it without reason. ART. 1186. After the obligation is extinguished by the loss of the thing, all the actions which the debtor may have against third persons, by reason thereof shall pertain to the creditor.

SECTION THIRD.-Remission of debts.

ART. 1187. A remission may be made either expressly or by impli

cation.

Both shall be subject to the provisions governing illegal gifts. An express remission must, furthermore conform to the forms of a gift. ART. 1188. The surrender, made voluntarily by a creditor to his debtor, of a private instrument proving a credit, implies the renunciation of the action which the former had against the latter.