Right of choice in alternative obligation
ART. 1200. The right of choice belongs to the debtor, unless it has been expressly granted to the creditor. The debtor shall have no right to choose those prestations which are impossible, unlawful or which could not have been the object of the obligation. (1132)
As a general rule, the right to choose the prestation belongs to the
debtor[1] except if it is expressly granted to the creditor or it is expressly granted to a third person. Moreover, the notice of selection or choice may be in any
form provided it is sufficient to make the other
party know that the selection has been made.
It can be in oral, writing, tacit, or any other equivocal means. The effect of the notice is to limit the obligation
to the object or prestation selected. The
obligation is converted into a simple obligation
to perform the prestation chosen. Once a
selection has been communicated, it is
irrevocable.Furthermore, regarding the consent of the other party, the law does not require the other party to consent to the choice made by the party entitled to choose. The only possible exception is when the debtor has chosen a prestation which could not have been the object of the obligation; the creditor’s consent would bring about a novation of the obligation.
In Article 1203, if the debtor cannot make a choice through the creditor's acts, the former may rescind the contract with damages. If the debtor does not select at the time when performance should be effected, the choice can be made for him by the creditor by applying Art. 1167.[2]
[1] De Leon. (2014). Obligations and Contracts.
[2] Article 1167. If a person obliged to do something fails to do it, the same shall be executed at his cost.
This same rule shall be observed if he does it in contravention of the tenor of the obligation. Furthermore, it may be decreed that what has been poorly done be undone.
