1543. If any person appoints any other person his agent to settle
an action and the agent accordingly makes a settlement, the principal is bound
by such settlement. The agent is in no way responsible for any claim made in
connection therewith, unless he has made himself a guarantor therefor, in which
case he is liable. Moreover, if an agent makes a settlement by way of admission
to the effect that he will give property for property, and makes such settlement
in his own name, such agent becomes liable for any claim made in connection
therewith, that is to say, the amount covered by the settlement may be recovered
from the agent, the latter preserving the right of recourse against his
principal.yvT Examples:-
(1). An agent, acting in accordance with the term of his power of attorney,
makes a settlement for a certain amount of money. The principal and not the
agent will be obliged to pay such sum. But if an agent arranges a settlement for
a certain sum of money and he guarantees such sum, the money in that case is
recoverable from the agent, who has a right of recourse against his principal.
(2). In the event of a settlement being made by way of admission upon the terms
that property shall be exchanged for property, the agent inducing the other
party to settle with him in respect to which the settlement is made may be
recovered from the agent, who has a right of recourse against the principal,
owing to the transaction being in the nature of a sale.
1544. If a third person who is not authorised thereunto, that is
to say, who acts without permission,intervenes in an action between two persons
and makes a settlement with one of them, such settlement is valid in the
following cases, but the unauthorised person is held to have acted on his own
initiative: if such person guarantees the sum covered by settlement; if he
allows the sum covered by the settlement to attach to his own property; if he
allows the sum covered by the settlement to attach to certain specific money or
goods present at the time; or if he makes a settlement for a certain sum of
money and delivers that sum of money. In the latter case, should such party
intervening fail to deliver the sum of money covered by the settlement, such
settlement is dependent upon the adoption of the transaction by the defendant.
The settlement is valid if adopted by the defendant, who must then pay the sum
covered by such settlement. If he does not do so, the settlement is null and
void, the action remaining undisturbed.
CHAPTER II. THE CONSIDERATION AND SUBJECT MATTER OF THE SETTLEMENT.
1545. If the consideration of the settlement is some specific
object, such object is considered as an article which has been sold. If it is a
debt, it is considered to be the price. Consequently, anything which may be the
subject of sale or the price thereof in a contract of sale, may also be the
consideration for a settlement.
1546. The consideration of the settlement must be the property of
the person making the settlement. Consequently, if the person making the
settlement offers some other person's property as the consideration for the
settlement, such settlement is invalid.
1547. If it is necessary to take and give delivery of either the
consideration of the settlement or the subject matter thereof, such thing must
be clearly defined. If not, it need not be clearly defined.yvT Examples:-
(1). A brings an action against B with regard to a house in the possession of B.
B brings an action against A with regard to a garden in the possession of A.
Both agree to a settlement of their actions without defining the nature of the
dispute.
(2). A brings an action against B with regard to a house without defining the
nature of the dispute, and they come to a settlement on the terms that the
defendant shall pay the plaintiff a certain sum of money and the plaintiff shall
drop the action. The settlement is valid. But if a settlement is made whereby
the plaintiff gives the defendant a certain sum of money and the defendant in
consideration thereof gives up his claim, such settlement is invalid.
CHAPTER III. THE SUBJECT MATTER OF THE SETTLEMENT.
SECTION I: SETTLEMENT IN RESPECT TO SPECIFIC PROPERTY.
1548. If a settlement by way of admission is made with regard to property in an action relating to specific
property, such settlement is in the nature of a sale, and there is an option for
defect, an option of inspection, and a contractual option, and, in the event of
either the subject matter or the consideration of the settlement being real
property, a right of pre-emption attaches thereto. If the whole or part of the
subject matter of the settlement is seized by someone who is entitled thereto,
the plaintiff may recover the amount of the consideration from the defendant,
that is to say, either the whole or a portion thereof. If the whole of the
consideration of the settlement or part thereof is seized by someone who is
entitled thereto, the plaintiff may recover from the defendant the subject
matter of the settlement, that is to say, the whole or part thereof.yvT
Example:- A brings an action against B claiming a house from him. B admits
that the house belongs to A and the two partners agree to a settlement for a
certain sum of money. The house is considered to have been sold to the
defendant, and, as stated above, the transaction is treated as though it were a
sale.
1549. If a settlement by way of admission is made in an action
with regard to property in respect to the usufruct thereof, such settlement is
in the nature of hire and is treated as though it were a contract of hire.yvT
Example:- A brings an action against B claiming a garden from him. B makes a
settlement with A on terms that A is to live in this house for a certain period.
A is considered to have taken the house on hire in exchange for the garden in
respect to such period.
1550. A settlement by way of denial or silence amounts to
receiving satisfaction in the case of the plaintiff, and abstention from
swearing the oath by the defendant, whereby the point at issue is decided.
Consequently, a right of pre-emption attaches to real property which is the
consideration for a settlement, but does not attach to real property which is
the subject matter of the settlement. If any person who is entitled thereto
seizes the whole or part of such real property, the plaintiff must return to the
defendant the amount of the consideration for the settlement, that is to say,
the whole or a portion thereof, and may bring an action against the person who
claims to be so entitled. If either the whole or part of the consideration is
seized by someone entitled thereto, the plaintiff may again bring an action in
respect thereto.
1551. If any person brings an action to recover any specific
property, as, for example, a garden, and agrees to a settlement in respect to a
portion thereof and releases the defendant in respect to the remainder of the
action, such person is considered to have received a part of his claim and to
have foregone the rest, that is to say, to have relinquished his right to bring
an action in respect of the remainder.
SECTION II. SETTLEMENT WITH REGARD TO DEBT AND OTHER MATTERS.
1552. If any person effects a settlement with any other person in respect to a
portion of a claim that he has against such person, the person effecting the
settlement is considered to have received payment of part of the claim and to
have foregone his right to the balance, that is to say, to have released such
person from the remainder.
1553. If any person effects a settlement whereby a debt repayable
forthwith is converted into a debt repayable at some future date, he is
considered to have relinquished his right to payment forthwith.
1554. If any person effects a settlement whereby a debt repayable
in sound coin may be repaid in base coin, such person is considered to have
relinquished his right to payment in sound coin.
1555. A settlement may validly be effected in actions relating to
the right of taking water, the right of pre-emption and the right of way,
whereby a payment is made in order to avoid swearing an oath.
CHAPTER IV. FUNDAMENTAL CONDITIONS GOVERNING SETTLEMENT AND RELEASE.
SECTION I. FUNDAMENTAL CONDITIONS GOVERNING SETTLEMENT.
1556. When the settlement is complete, one of the two parties may not go back
therefrom. BY agreeing to the settlement, the plaintiff becomes entitled to the
consideration for the settlement. He no longer possess any right to bring an
action. The defendant may not claim the return of the consideration for the
settlement from him.
1557. In the event of the death of one of the two contracting
parties, the heirs may not cancel the settlement.
1558. If the settlement takes the form of giving something in
satisfaction, the two parties thereto may cancel and rescind the settlement of
their own accord. If the settlement does not take such form, but consists of
giving up certain rights any cancellation thereof is invalid. (See Article
51.)
1559. If a contract of settlement is concluded whereby a payment
is made in order to avoid swearing an oath, the plaintiff is considered to have
relinquished his right of bringing an action, and he cannot have the defendant
put on his oath.
1560. If the consideration for the settlement is destroyed in
whole or part before it has been handed over to the plaintiff, and such
consideration is a thing which is specified, it is considered to be in the
nature of a thing seized by someone entitled thereto. That is to say, if a
settlement is made by way of admission, the plaintiff may claim the whole or
part of the subject matter of the settlement from the defendant. If the
settlement is made by way of denial or silence, the plaintiff may proceed with
his action. (See Articles 1548 and 1550.) If the consideration for the
settlement is a debt that is to say, consists of things which are not specified,
such as so many piastres, the settlement is not thereby affected, and the
plaintiff is entitled to receive from the defendant an amount equivalent to the
portion lost.
SECTION II. FUNDAMENTAL CONDITIONS GOVERNING RELEASE.
1561. If any person states that he has no claim against or dispute with some other
person, or that he is not entitled to anything from him, or that he has finished
or given up a claim he had against him, or that he is no longer entitled to
anything from him, or that he has received complete satisfaction from him, he is
considered to have released such person.
1562. If any person releases any other person from any
obligation, such obligation ceases to exist and he can no longer make any claim
in connection therewith. ( See Article 51.)
1563. A release does not extend to anything happening in future.
That is to say, if one person releases another, any rights antecedent to the
release cease to exist. Such person may, however, bring an action with regard to
rights which accrue after the release.
1564. If any person releases any other person from an action
relating to a particular matter, such release is a special release and no action
will be heard with regard to that matter. He may, however, bring an action with
regard to any other matter.yvT Example:- A releases B from an action with
regard to a house. No action will be heard concerning such house. An action,
however, will be heard relating to a farm and similar matters.
1565. If any person states that he has released any other person
from all actions or that he has no claim in respect to him, such release is
general, and he may not bring an action in respect to any right which accrued
prior to the release, to the extent that no action relating to a right accruing
by reason of a contract of guarantee will be heard. Thus, if a person brings an
action alleging that another person was surety for some third person, the action
will not be heard. Nor may such person allege that some other person was surety
for some person prior to that person's release. (See Article 662.)
1566. If a person sells property to some other person and
receives the price and releases the purchaser from all actions relating to the
thing sold, and the purchaser likewise releases the vendor from all actions with
regard to the price and a document is drawn up between them on these lines, and
the thing sold is seized by someone entitled thereto, the release ceases to be
of any effect and the purchaser may claim the return of the price from the
vendor. (See Article 52.)
1567. The persons who are released must be known and designated.
Consequently, if any person states that he has released all persons who are in
his debt or that he has no claim upon any person whatsoever,such release is
invalid. But if he states that he has released the people of a certain place and
people of such place and the number thereof are definitely known, the release is
valid.
1568. A release is not dependent upon acceptance. but if the
release is disclaimed it is of no effect. Thus, if one person releases another
there is no need for the latter to accept. But if at the meeting where the
release is made, such person states that he refuses to accept the release, such
release is of no effect. If a person disclaims a release after having accepted
it, it is of no effect. Again, if a person in whose favour a transfer of debt
has been made releases the transferee, or a creditor releases a surety, or the
transferee, or the surety disclaims the release, such release continues to be
effective.
1569. A person who is dead may validly be released from his debts.
1570. If a person releases one of his heirs from his debts during the course of
a mortal sickness, such release in not valid and executory. If he releases a
person who is not his heir from his debts, however, such release is effective as
regards a third of his property.
1571. If a person whose estate is overwhelmed by debts releases a
person who is indebted to him during the course of a mortal sickness, such
release is invalid and not executory.