novation

A novation will, indeed, if it be absolute and unconditional, amount to a direct extinguishment of the original debt, by substituting the new contract in its place... if the debt of which it is proposed to make a novation by another engagement, is conditional, the novation cannot take effect, until the condition is accomplished.

The substitution of a new obligation for an old, which is thereby extinguished. 57 Wis. 534. The term Is of civil law origin, and is rarely used in the common law. Novation is of three sorts: (1) Where the debtor and creditor remain the same, but a new debt takes the place of the old one. Here, either the subject matter of the debt may be changed, or the conditions of time, place, etc., of payment. (2) Where the debt remains the same, tervention or privity of the old debtor (in this case the new agreement is called expromissio, and the new debtor ex'promissor), or by the debtor's transmission of his debt to another, who accepts the obligation, and is himself accepted by the creditor. This transaction is called delegatio. Domat lays down the essential distinction between a delegation and any other novation, thus: That the former demands the consent of all three parties, but the latter that only of the two parties to the new debt. (3) Where the debt remains the same, but a new creditor is substituted for the old. This also is called delegatio, for the reason adduced above, to wit, that all three parties must assent to the new bargain. It differs from the cessio nominis of the civil law by completely cancelling the old debt, while the cessio nominis leaves the creditor a claim for any balance due after assignment. See Civ. Code Cal. §§ 1530, 1532. To constitute a novation there must be (1) a valid pre-existing obligation; (2) consent of capable parties; (3) express intention to innovate. The release of the old obligation is a sufficient consideration. 37 Ohio St, 279.

A change of one debt or obligation into another; a substitution of a new debt or obligation for an old one.

Novation is the substitution of a new debt or obligation for an existing one. Civil Code Cal. § 1530; Civil Code Dai. § 868. obligation; the other to substitute a new one In its place. Civil Code La. art. 2185. The term was originally a technical term of the civil law, but is now in very general use in linglish and American jurisprudence. SSS In the civil law, there are three kinds of novation: (1) Where the debtor and creditor remain the same, but a new debt takes the place of the old one; (2) where the debt remains the same, but a new debtoris substituted; (3) Where the debiand debtor remain, but a new creditor is substituted. 48 Miss, 451.

^ The substitution of one debtor for another, or of a new for an old obligation, which is thereby extinguished.^ The doctrine is of civil-law origin. The commonlaw equivalent is " assignment " or " merger." The requisites are: a previous valid obligation; agreement of all parties to the new contract; extinr guishment of the old contract; and a valid new contract.* In the civil law, the substitution may be in the debt, the debtor, or the creditor.^ The new creditor may maintain an action in his own name, founded upon the assignment and the express promise of the debtor to pay him. Without this promise, the assignee m ust sue in the name of the assignor. ^ See Assignment, 2; Delegation, 2.