Comments and reflections on the codification of the law of obligations and the potential improvement of its legal regime in Peru

Abstract

The Peruvian civil codification, unlike other Latin American codifications, has historically maintained an autonomous book dedicated to the discipline of obligations, the current one being Book VI of the 1984 Civil Code. Given the unfinished nature of Law and modern transformations, there is a justified need to update this legal regime, which has a hybrid identity, predominantly French in its origin and structure. The article critically analyzes the improvement proposals, highlighting the adoption of a general regime of objective liability for non-performance of obligations (Art. 1314), requiring the debtor to be liable for the damage caused without the need to verify fault or intent, and limiting liability to the non-attributable cause. In risk theory (Art. 1138), it is proposed to limit the creditor's remedies in case of minor non-attributable deterioration, granting the power to nullify the obligation. Regarding the penalty clause, its dual function is recognized: punitive and as a preventive and global liquidation of damage (Art. 1341). It is also proposed to distinguish between the classic penalty clause and security agreements (Art. 1343). The proposal to empower judicial reduction ex officio of the penalty clause (Art. 1346) is criticized, arguing that this measure weakens private autonomy and contractual certainty. Regarding the concurrence of creditors (Art. 1135), there is a search to unify criteria, but it is warned that limiting the application only to “rights of enjoyment” creates a critical legal vacuum for certain movable property in ownership. Other improvements include the substitution of the assignment of rights by the assignment of credits (Art. 1206) and the terminological harmonization with the category of restricted exercise capacity. The general balance indicates a necessary effort of modernization and systemic coherence.