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(1) Without the obligee’s consent, the obligor may contract with another person that this person will perform the obligation in place of the obligor, unless the obligation in the circumstances has an essentially personal character. 

 

(2) The obligee retains its claim against the obligor.

 

COMMENT

 

1. Agreement on performance by another party

 

Obligations can be transferred either by an agreement between the original obligor and the new obligor, with the obligee’s consent (see Article 9.2.1(a)), or by an agreement between the obligee and the new obligor (see Article 9.2.1(b)). 

 

There may be situations in which the consent of the obligee is lacking, either because it has not been solicited, or because it has been refused. In such cases the obligor may agree with another person that this person will perform the obligation in its place. When performance becomes due, the other person will render it to the obligee. 

 

While an obligee may refuse to accept a new obligor before performance is due, in principle it may not refuse to accept the performance itself when it is offered by another party.

 

Illustration

 

1. Companies A and B have entered into a co-operation agreement for their activities on a certain market. At a certain point they decide to redistribute some of their tasks. Thus, B will take over all operations concerning telecommunications which were previously A’s responsibility. On the following 30 October A would have been bound to pay company X, a local operator, a sum of USD 100,000. The two partners agree that B will pay that amount when it is due. On 30 October X may not refuse such a payment made by B.

 

2. Obligation of an essentially personal character

 

Third party performances may not be refused by the obligee in all the cases in which they would be equally satisfactory as performances rendered by the obligor. The situation is different when the performance due is of an essentially personal character, linked to the obligor’s specific qualifications. The obligee may then insist on receiving performance by the obligor itself.

 

Illustration

 

2. In Illustration 1, B also takes over operations for the maintenance of some sophisticated technological equipment developed by A and sold to company Y. The partners agree that the next yearly maintenance will be carried out by B. When B’s technicians arrive at Y’s premises, Y may refuse their intervention, invoking the fact that due to the highly technical nature of the verifications involved, they are entitled to receive performance from the specialised staff of A.

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