novaciones

Novación is a legal concept in civil law that refers to the extinguishment of an existing obligation and the creation of a new one that substitutes a party, object, or terms. The original obligation is replaced by a different obligation, and the old contract is dissolved. The term is used in Spanish-speaking jurisdictions and is often translated as “novation” in English legal texts.

Types and scope

- Novación objetiva: a change in the subject matter or performance required by the obligation. The existing debt remains, but the object of the obligation is replaced or altered (for example, delivering a different thing or changing the nature of the obligation’s performance).

- Novación subjetiva: a substitution of the debtor or the creditor. The old debtor or creditor is replaced by a new one, and the original obligation is extinguished. This can occur with a third party taking on the obligation or a new creditor assuming the claim.

- Novación mixta: a combination of changes to both subject matter and participants, resulting in a new obligation that replaces the old one.

Requirements and effects

- Consent: novation generally requires the agreement of all relevant parties (debtor, creditor, and, if applicable, the new debtor or new creditor). In some systems, formalities may be required.

- Extinguishment and creation: the old obligation is extinguished, and a new obligation arises with its own terms and parties.

- Relationship to other concepts: novation is distinct from assignment of a claim (cesión de crédito), which transfers an existing claim without extinguishing the original obligation, and from subrogation, where a third party pays or assumes a position without necessarily creating a new contract.

Examples and scope

- A debtor agrees to replace an obligation to pay money with a different form of performance, or a new debtor assumes the debt and becomes liable to the creditor under a new contract.

- Novation can simplify or revise contractual relationships when the parties wish to modify who owes what to whom, under new conditions.