| Abstrakt: |
The obligation is indivisible when the parties have expressly agreed (voluntary indivisibility) or when the object, by its nature, is not susceptible to material or intellectual division. The object of such an obligation is the source of the springs of indivisibility, because it cannot be divided, and the fulfilment of the obligation is possible only in its entirety, material or intellectual, the indivisibility also fulfilling the function of guaranteeing the execution of the obligation. Indivisibility appears as a rule of obligational relations with a plurality of subjects, in the hypothesis that their object consists in the surrender of a certain asset, which is indivisible by its nature. Indivisible is the right, and not necessarily the material object to which it refers, so that, if the right to an asset is indivisible, necessarily the obligation to transmit that right is also indivisible. The nature of the service that forms the object of the obligation resides in the fact that the object is indivisible by nature, both from a physical and an intellectual point of view, in which case the indivisibility is, therefore, natural and has an objective nature. The will of the parties is the source of indivisibility, in which case it is conventional or voluntary, therefore of a subjective nature and, although the object of the obligation is divisible, its execution can only be done in its entirety, because this is what the contracting parties undoubtedly agreed upon. Indivisibility exists only in the situation where the obligation has several creditors or debtors, because, in the situation where there is only one creditor and debtor, the issue of indivisibility is of no practical interest, because the divisible obligation will have to be executed as if it were indivisible, the debtor being unable to make a partial payment. The parties can „secure" the clauses of a contract by stipulating the indivisibility of the clauses of that contract, that is raising the clauses to the standard of essential clauses decisive for their consent, so that this contract can only exist in the entirety of its clauses. The main effect of the indivisibility of the obligation consists in the fact that any creditor can claim from any of the debtors the full execution of the service and any debtor can be forced to execute the service to which the creditor is entitled. [ABSTRACT FROM AUTHOR] |
