The Legal Action for Performance of Obligations (in Spanish Law)

The creditor is protected by the law if the debtor does not fulfil the contract, the creditor can ask for the job to be done, or if this is impossible, the creditor can ask for the equivalent in money plus the compensation for damages in both cases.

The consequence of misconduct is outlined in the statement of liability in Article 1101:

“Persons who, in the performance of their obligations, should incur in wilfull misconduct, negligence or default, and those who should breach the content of the obligations in any way shall be subject to compensation of any damages caused”.

So, the potential Action for Performance can be separated into these scenarios:

• If the performance in natura is possible and the debtor can carry out their obligation but the contract provided something specific, such as a specific service, the creditor can ask for the debtor to provide that specific service (article 1.096.1 CC). However, if the contract provided something generic, the creditor can ask for the obligation to be carried out at the debtor’s expense (article 1.096.2 CC)
• If the service is mutually interchangeable, a third party can carry out the obligation at the expense of the debtor (article 1.098 CC).
• If the debtor is carrying out a job that they should not have done, article 1.099 CC states that the creditor can ask the debtor to undo what they have done (article 1.099 CC).
  • But if this is impossible, article 710.2 CPL states that the debtor shall pay damages.