Debtor ´ s attributable breach: quantification of the obligation by equivalent

Abstract

This paper begins with the concept of "obligation" (Art. 724 of the Argentine Civil and Commercial Code, CCCN) to analyze a debtor's attributable breach that gives rise to the option of "enforcement by equivalent" (Arts. 730(c) and 777(c) of the CCCN). Taking a stance that this situation constitutes a modification of the obligation, wherein the object shifts from the original (non-monetary) performance to a monetary payment (id quod interest), we then turn to determining that monetary value (aestimatio rei). At least five possible points for this valuation are identified: a) the time of attributable breach; b) the filing of the claim; c) notification of the claim; d) establishment of the case; e) time of expert assessment or pertinent evidentiary act. We lean towards the latter option, as it aligns with objective criteria and joint  participation, ensuring the process’s bilateral nature, the right to defense, and, consequently, effective protection of the rights involved.