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BOOK IV

OBLIGATIONS AND CONTRACTS

TITLE I — OBLIGATIONS

CHAPTER 1
GENERAL PROVISIONS

Article 1156. An obligation is a juridical necessity to


give, to do or not to do.1

Concept of Obligations. — Evidently, the above definition of


an obligation is adopted from Sanchez Roman’s classic definition of
an obligation as “the juridical necessity to comply with a prestation.”2
Manresa, on the other hand, defines it as a “legal relation established
between one person and another, whereby the latter is bound to the
fulfillment of a prestation which the former may demand of him.’’3
It must be observed, however, that obligations may be either
civil or natural.4 A civil obligation is one which has a binding force in
law, and which gives to the obligee or creditor the right of enforcing it
against the obligor or debtor in a court of justice. This is the obligation
which is defined in Art. 1156 of the Code. A natural obligation, on
the other hand, is one which cannot be enforced by action, but which
is binding on the party who makes it in conscience and according to

1
New provision.
2
4 Sanchez Roman 53.
3
8 Manresa, 5th Ed., Bk. 1, p. 21.
4
Art. 1423, Civil Code.

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Art. 1156 OBLIGATIONS

the natural law.5 Thus, when an action has prescribed in accordance


with the statute of limitations, a natural obligation still subsists,
although the civil obligation is extinguished. This may be illustrated
by the following example: If A has a right of action, evidenced by
a promissory note, to collect one thousand pesos from B, and such
promissory note prescribes after the expiration of ten years from
the time it accrues,6 although the latter is no longer bound to pay
the obligation in accordance with the statute of limitations, he is
still bound to pay in accordance with equity and natural law.7 It is,
therefore, clear that a civil obligation and a natural obligation may
be distinguished from each other as follows:
(1) A civil obligation is based on positive law, while a natural
obligation is based on equity and natural law; and
(2) The former is enforceable in courts of justice, while the
latter is not.8
Requisites of Obligations. — An obligation has four essential
requisites. They are:
(1) A juridical or legal tie, which binds the parties to the
obligation, and which may arise from either bilateral or unilateral
acts of persons;
(2) An active subject known as the obligee or creditor, who
can demand the fulfillment of the obligation;
(3) A passive subject known as the obligor or debtor, against
whom the obligation is juridically demandable; and
(4) The fact, prestation or service which constitutes the object
of the obligation.9
The form in which the obligation is manifested is sometimes
added as a fifth requisite. As a general rule, however, it cannot be
considered as essential. Obligations arising from law, quasi-con-
tracts, acts or omissions punished by law, and quasi-delicts do not
require any form whatsoever, yet there can be no question regard-

5
3 Bouvier’s Law Dictionary, 2394-2395.
6
Art. 1144, Civil Code.
7
Agoncillo vs. Javier, 38 Phil. 424; Villaroel vs. Estrada, 71 Phil. 40.
8
Art. 1423, Civil Code.
9
Giorgi, Teoria de las Obligaciones, Vol. 1, p. 13; 3 Castan, 7th Ed., p. 20.

2
GENERAL PROVISIONS Art. 1156

ing their validity or binding force. It is only in obligations arising


from certain contracts that it becomes essential. Thus, in a con-
tract involving a donation of personal property whose value exceeds
P5,000.00, the law requires that the donation and the acceptance
shall be made in writing;10 in a contract of sale of a piece of land or
any interest therein through an agent, the law requires that the
authority of the latter shall be in writing;11 in a contract of simple
loan or mutuum, the law requires that any agreement with respect
to interest shall be expressly stipulated in writing;12 in a contract of
antichresis, the law requires that the amount of the principal and
of the interest shall be specified in writing;13 in a contract involving
a donation of immovable property, the law requires that the dona-
tion shall be made in a public document, while the acceptance shall
be made either in the same deed of donation or in a separate public
document;14 in a contract of partnership where immovable property
or real rights are contributed to the common fund, the law requires
that the contract shall be in a public instrument to which an inven-
tory of the property or real rights, signed by the partners, must be
attached;15 in a contract of chattel mortgage, the law requires that
the personal property which is the subject matter of the contract
shall be recorded in the Chattel Mortgage Register as a security
for the performance of an obligation;16 and in a contract involving
the sale or transfer of large cattle, the law requires that the sale or
transfer shall be registered.17 Non-compliance with such formalities
would have the effect of rendering the contract or agreement void or
inexistent.

Classification of Obligations. — The following is the primary


classification of obligations under the Civil Code:
(1) Pure and conditional (Arts. 1179-1192).
(2) With a period (Arts. 1193-1198).
(3) Alternative and facultative (Arts. 1199-1206).

10
Art. 748, Civil Code.
11
Art. 1874, Civil Code.
12
Art. 1956, Civil Code.
13
Art. 2134, Civil Code.
14
Art. 749, Civil Code.
15
Arts. 1771, 1773, Civil Code.
16
Art. 2140, Civil Code.
17
Sec. 22, Act No. 1147; Art. 1581, Civil Code.

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Art. 1156 OBLIGATIONS

(4) Joint and solidary (Arts. 1207-1222).


(5) Divisible and indivisible (Arts. 1223-1225).
(6) With a penal clause (Arts. 1226-1230).
There are, however, other classifications of a secondary char-
acter which can be gathered from scattered provisions of the Civil
Code, such as:
(1) Legal, conventional and penal;18
(2) Real and personal;19
(3) Determinate and generic;20
(4) Positive and negative;21
(5) Unilateral and bilateral;22
(6) Individual and collective;23
(7) Accessory and principal.24
The following, on the other hand, is the classification of
obligations according to Sanchez Roman:25
(1) As to juridical quality:
(a) Natural — when the obligation is in accordance with
natural law.
(b) Civil — when the obligation is in accordance with
positive law.
(c) Mixed — when the obligation is in accordance with
both natural and positive law.

18
Arts. 1158-1162, Civil Code.
19
Arts. 1163-1168, Civil Code.
20
Arts. 1163-1166, Civil Code.
21
Arts. 1167-1168, Civil Code.
22
Arts. 1169-1191, Civil Code.
23
Arts. 1207, 1223, Civil Code.
24
Arts. 1166, 1226, et seq., Civil Code.
25
8 Sanchez Roman 20-40.

4
GENERAL PROVISIONS Art. 1156

2. As to parties:
(a) Unilateral and bilateral — unilateral, where only
one party is bound, and bilateral, where both parties are mu-
tually or reciprocally bound.
(b) Individual and collective — individual, where there
is only one obligor, and collective, where there are several ob-
ligors. The latter may be joint, when each obligor is liable only
for his proportionate share of the obligation, or solidary, when
each obligor may be held liable for the entire obligation.
3. As to object:
(a) Determinate and generic — determinate, when the
object is specific; generic, when the object is designated by its
class or genus.
(b) Simple and multiple — simple, when there is only
one undertaking; multiple, when there are several undertak-
ings. Multiple obligations may be conjunctive, when all of the
undertakings are demandable at the same time, or distribu-
tive, when only one undertaking out of several is demandable.
Distributive obligations, on the other hand, may be alterna-
tive, when the obligor is allowed to choose one out of several
obligations which may be due and demandable, or facultative,
when the obligor is allowed to substitute another obligation for
one which is due and demandable.
(c) Positive and negative — positive, when the obligor
is obliged to give or do something; negative, when the obligor
must refrain from giving or doing something.
(d) Real and personal — real, when the obligation con-
sists in giving something; personal, when the obligation con-
sists in doing or not doing something.
(e) Possible and impossible — possible, when the ob-
ligation is capable of fulfillment in nature as well as in law;
impossible, when the obligation is not capable of fulfillment
either in nature or in law.
(f) Divisible and indivisible — divisible, when the obli-
gation is susceptible of partial performance; indivisible, when
the obligation is not susceptible of partial performance.

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Art. 1157 OBLIGATIONS

(g) Principal and accessory — principal, when it is the


main undertaking; accessory, when it is merely an undertaking
to guarantee the fulfillment of the principal obligation.
4. As to perfection and extinguishment:
(a) Pure — when the obligation is not subject to any
condition or term and is immediately demandable.
(b) Conditional — when the obligation is subject to a
condition which may be suspensive, in which case the happen-
ing or fulfillment of the condition results in the birth of the
obligation, or resolutory, in which case the happening or ful-
fillment of the condition results in the extinguishment of the
obligation.
(c) With a term or period (a plazo) — when the obligation
is subject to a term or period which may be suspensive or from
a day certain, in which case the obligation is demandable only
upon the expiration of the term, or resolutory or to a day certain,
in which case the obligation terminates upon the expiration of
the term.

Art. 1157. Obligations arise from:


1. Law;
2. Contracts;
3. Quasi-contracts;
4. Acts or omissions punished by law; and
5. Quasi-delicts.26
Sources of Obligations. — In Roman law, the sources of
obligations are: (1) contractu; (2) quasi-contractu; (3) maleficio;
and (4) quasi-maleficio.27 These sources are preserved in the Civil
Code with the addition of law or lege.28 The addition of lege as an
independent source of obligations, however, has been criticized as
theoretically erroneous. Thus, according to the Supreme Court:

26
Art. 1089, Spanish Civil Code, in amended form.
27
8 Manresa, 5th Ed., Bk. 1, p. 35.
28
Art. 1157, Civil Code.

6
GENERAL PROVISIONS Art. 1158

“This enumeration of the sources of obligations supposes that


the quasi-contractual obligation and the obligation imposed by
law are of different types. The learned Italian jurist, Jorge Giorgi,
criticizes this assumption and says that the classification embodied
in the Code is theoretically erroneous. His conclusion is that one
or the other of these categories should have been suppressed and
merged in the other. (Giorgi, Teoria de las Obligaciones, Spanish
Ed., Vol. 5, Arts. 5, 7, 9) The validity of the criticism is, we think,
self-evident and it is of interest to note that the common law makes
no distinction between the two sources of liability. The obligations
which in the Code are indicated as quasi-contracts, as well as those
arising ex lege, are in the common law system merged into the
category of obligations imposed by law, and all are denominated
implied contracts.’’29

Art. 1158. Obligations derived from law are not pre-


sumed. Only those expressly determined in this Code or in
special laws are demandable, and shall be regulated by the
precepts of the law which establishes them; and as to what
has not been foreseen, by the provisions of this Book.30
Obligations Arising from Law. — Unlike other obligations,
those derived from law can never be presumed. Consequently, only
those expressly determined in the Civil Code or in special laws are
demandable. These obligations shall be regulated by the precepts
of the law which establishes them, and as to what has not been
foreseen, by the provisions of Book IV of the Civil Code.31
How can we determine whether an obligation arises from
law or from some other source, such as a contract, quasi-contract,
criminal offense or quasi-delict? It must be noted that in the birth or
generation of an obligation, there is always a concurrence between
the law which establishes or recognizes it and an act or condition
upon which the obligation is based or predicated. According to
Manresa, when the law establishes the obligation and the act or
condition upon which it is based is nothing more than a factor for
determining the moment when it becomes demandable, then the law

29
Leung Ben vs. O’Brien, 38 Phil. 182.
30
Art. 1090, Spanish Civil Code.
31
Art. 1158, Civil Code.

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Art. 1159 OBLIGATIONS

itself is the source of the obligation; however, when the law merely
recognizes or acknowledges the existence of an obligation generated
by an act which may constitute a contract, quasi-contract, criminal
offense or quasi-delict and its only purpose is to regulate such
obligation, then the act itself is the source of the obligation and not
the law.32 Thus, if A loses a certain amount to B in a game of chance,
according to Art. 2014 of the Civil Code, the former may recover his
loss from the latter, with legal interest from the time he paid the
amount lost. It is evident that in this particular case the source of
the obligation of B to refund to A the amount which he had won from
the latter is not a contract, quasi-contract, criminal offense or quasi-
delict, but the law itself.33 The same can also be said with regard to
the obligation of the spouses to support each other,34 the obligations
of employers under the Labor Code,35 the obligations of the owners of
the dominant and servient estates in legal easements,36 and others
scattered in the Civil Code and in special laws.

Art. 1159. Obligations arising from contracts have the


force of law between the contracting parties and should be
complied with in good faith.37
Obligations Arising from Contracts. — A contract is a
meeting of minds between two persons whereby one binds himself,
with respect to the other, to give something or to render some service.38
As a rule, contracts are perfected by mere consent, and from that
moment the parties are bound not only to the fulfillment of what
has been expressly stipulated but also to all of the consequences
which according to their nature may be in keeping with good faith,
usage and law.39 These contracts are commonly called consensual
contracts. Once the contract is perfected, the valid contract has the
force of law binding the parties to comply therewith in good faith,
where neither one may renege therefrom without the consent of the
other. (Tiu Peck vs. CA 221 SCRA 618 [1993]) There are certain

32
8 Manresa, 5th Ed., Bk. 1, p. 48.
33
Leung Ben vs. O’Brien, 38 Phil. 182.
34
Art. 291, Civil Code; Pelayo vs. Lauron, 12 Phil. 453.
35
Bautista vs. Borromeo, 35 SCRA 119.
36
Arts. 634, 687, Civil Code.
37
Art. 1091, Spanish Civil Code, in modified form.
38
Art. 1305, Civil Code.
39
Art. 1315, Civil Code.

8
GENERAL PROVISIONS Art. 1160

contracts, however, called real contracts, such as deposit, pledge


and commodatum, which are not perfected until the delivery of the
object of the obligation.40 Whether the contract is consensual or real,
the rule is that from the moment it is perfected, obligations which
may be either reciprocal or unilateral arise. Reciprocal obligations
are those where the parties are mutually or reciprocally obliged to
do or to give something; unilateral obligations, on the other hand,
are those where only one of the parties, the obligor, is obliged to do
or to give something.
Unlike other kinds of obligations, those arising from contracts
are governed primarily by the agreement of the contracting parties.
This is clearly deducible not only from the nature of contracts, but
also from Art. 1169 of the Code which declares that such obligations
have the force of law between the contracting parties and should
be complied with in good faith. “Compliance in good faith’’ means
performance in accordance with the stipulations, clauses, terms
and conditions of the contract. Consequently, the Code recognizes
the right of such contracting parties to establish such stipulations,
clauses, terms and conditions as they may deem convenient, provided
they are not contrary to law, morals, good customs, public order or
public policy.41 Good faith must, therefore, be observed to prevent
one party from taking unfair advantage over the other party. In
the case of Royal Lines, Inc. vs. Court of Appeals, 143 SCRA 608
(1986), it was ruled that evasion by a party of legitimate obligations
after receiving the benefits under the contract would constitute
unjust enrichment on his part. However, in default of an agreement,
the rules found in the Civil Code regulating such obligations are
applicable.42

Art. 1160. Obligations derived from quasi-contracts


shall be subject to the provisions of Chapter 1, Title XVII, of
this Book.43
Obligations Arising from Quasi-Contracts. — Quasi-
contracts are those juridical relations arising from lawful, voluntary

40
Art. 1316, Civil Code.
41
Art. 1306, Civil Code.
42
Art. 1305, et seq., Civil Code.
43
New provision.

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Art. 1161 OBLIGATIONS

and unilateral acts, by virtue of which the parties become bound


to each other, based on the principle that no one shall be unjustly
enriched or benefited at the expense of another.44 The most important
of these juridical relations which are recognized and regulated
by the Civil Code are negotiorum gestio45 and solutio indebiti.46
Negotiorum gestio is the juridical relation which arises whenever a
person voluntarily takes charge of the agency or management of the
business or property of another without any power or authority from
the latter.47 In this type of quasi-contract, once the gestor or officious
manager has assumed the agency or management of the business or
property, he shall be obliged to continue such agency or management
until the termination of the affair and its incidents,48 exercising such
rights and complying with such obligations as provided for in the
Code.49 Solutio indebiti, on the other hand, is the juridical relation
which arises whenever a person unduly delivers a thing through
mistake to another who has no right to demand it.50 In this type of
quasi-contract, once the delivery has been made, the person to whom
the delivery is unduly made shall have the obligation to return the
property delivered or the money paid.51
The Civil Code provides other instances of quasi-contract.
Examples are those found in Articles 2159, 2164 to 2175.
In the case of Perez vs. Palomar, 2 Phil. 682, it was significantly
noted that in a quasi contract where no express consent is given by
the other party, the consent needed in a contract is provided by law
through presumption (presumptive consent). Presumptive consent
gives rise to multiple juridical relations resulting in obligations for
delivery of the thing and rendering of service.

Art. 1161. Civil obligations arising from offenses shall


be governed by the penal laws, subject to the provisions of
Article 2177, and of the pertinent provisions of Chapter 2,

44
Art. 2142, Civil Code.
45
Art. 2144, Civil Code.
46
Art. 2154, Civil Code.
47
Art. 2144, Civil Code.
48
Ibid.
49
Arts. 2144-2152, Civil Code.
50
Art. 2154, Civil Code.
51
Ibid.

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GENERAL PROVISIONS Art. 1161

Preliminary Title, on Human Relations, and of Title XVIII of


this Book, regulating damages.52
Obligations Arising from Criminal Offenses. — As a rule,
every person liable for a felony is also civilly liable.53 This principle
is based on the fact that, generally, a crime has a dual aspect — the
criminal aspect and the civil aspect. Although these two aspects are
separate and distinct from each other in the sense that one affects
the social order and the other, private rights, so that the purpose of
the first is to punish or correct the offender, while the purpose of the
second is to repair the damages suffered by the aggrieved party, it
is evident that the basis of the civil liability is the criminal liability
itself.
Please note, however, that there are offenses and special crimes
without civil liability. Examples are crimes of treason, rebellion,
illegal possession of firearm and gambling. But a person who is not
criminally liable may still be civilly liable.
Idem; Enforcement of civil liability. — In general and
prior to the Revised Rules of Criminal Procedure 2000, the following
rules are observed in the enforcement or prosecution of civil liability
arising from criminal offenses:
(1) Institution of criminal and civil actions. — When a
criminal action is instituted, the civil action for recovery of civil
liability arising from the offense charged is impliedly instituted with
the criminal action, unless the offended party (i) expressly waives
the civil action, or (ii) reserves his right to institute it separately, or
(iii) institutes the civil action prior to the criminal action.
(2) Independent civil action. — In the cases provided in
Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines,
an independent civil action entirely separate and distinct from the
criminal action, may be brought by the injured party during the
pendency of the criminal case, provided the right is reserved. Such
civil action shall proceed independently of the criminal prosecution,
and shall require only a preponderance of evidence.

52
Art. 1092, Spanish Civil Code, in amended form.
53
Art. 100, Revised Penal Code. This rule, however, is subject to the rules stated
in Arts. 101, 102 and 103, Revised Penal Code.

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Art. 1161 OBLIGATIONS

(3) Other civil actions arising from offenses. — In all cases


not included in the preceding rules, the following rules are observed:
(a) Criminal and civil actions arising from the same
offense may be instituted separately, but after the criminal
action has been commenced, the civil action cannot be instituted
until final judgment has been rendered in the criminal action;
(b) If the civil action has been filed ahead of the criminal
action, and the criminal action is subsequently commenced, the
civil action shall be suspended in whatever stage before final
judgment it may be found, until final judgment in criminal
action has been rendered. However, if no final judgment
has been rendered by the trial court in the civil action, the
same may be consolidated with the criminal action upon
application with the court trying the criminal action. If the
application is granted, the evidence prevented and admitted
in the civil action shall be deemed automatically reproduced
in the criminal action, without prejudice to the admission of
additional evidence that any party may wish to present. In case
of consolidation, both the criminal and the civil action shall be
tried and decided jointly;
(c) Extinction of the penal action does not carry with
it extinction of the civil, unless the extinction proceeds from a
declaration in a final judgment that the fact from which the civil
might arise did not exist. In other cases, the person entitled to
the civil action may institute it in the jurisdiction and in the
manner provided by law against the person who may be liable
for restitution of the thing and reparation or indemnity for the
damage suffered.
Pursuant to Sec. 2, Rule III of the Revised Rules of Criminal
Procedure 2000, however, it is stated that except for civil actions
provided for in Articles 32, 33, 34 and 2176 of the Civil Code, the
civil action which has been reserved cannot be instituted until final
judgment has been rendered in the criminal action. The action
contemplated, as pointed out by Justice Oscar Herrera in his
Treatise on Criminal Procedure, is a civil action arising from a crime
if reserved or filed separately and a criminal case is filed if it has to
be suspended to await final judgment in the criminal action.
The rule clarifies that, “During the pendency of the criminal
action, the period of prescription of the civil action which cannot

12
GENERAL PROVISIONS Art. 1161

be instituted separately or whose proceeding has been suspended


shall not run.’’ Otherwise stated, the period of prescription of the
civil actions under Section 3 of the aforementioned rules shall not be
suspended because they can be instituted separately. This refers to
civil actions arising from the offense charged which have not been
reserved or civil actions that have been filed ahead of the criminal
action but have been suspended. (Justice Oscar M. Herrera, Treatise
on Historical Development and Highlights of Amendment of Rules
on Criminal Procedure, February 2001).
(4) Judgment in civil action not a bar. — A final judgment
rendered in a civil action absolving the defendant from civil liability
is no bar to a criminal action.
(5) Suspension by reason of prejudicial question. — A petition
for suspension of the criminal action based upon the pendency of
a prejudicial question in a civil action may be filed in the office of
the fiscal (prosecutor) or the court conducting the preliminary
investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests.
Section 7 of the Revised Rules of Criminal Procedure 2000
provides for the elements of a prejudicial question. They are: (a) the
previously instituted civil action which involves an issue similar or
intimately related to the issue raised in the subsequent criminal
action, and (b) the resolution of such issue determines whether or
not the criminal action may proceed.
Section 7 limits a prejudicial question to a “previously insti-
tuted civil action’’ in order to minimize possible abuses by the sub-
sequent filing of a civil action as an after thought for the purpose of
suspending the criminal action. (Justice Oscar M. Herrera, Treatise
on Criminal Procedure, February 2001)
At a glance, therefore, the following are the salient changes
brought about by the Revised Rules of Criminal Procedure 2000,
as more specifically discussed hereunder by Justice Herrera in his
Treatise on Criminal Procedure:
a. The rule changes the 1985 rule as amended in 1988.
Under the 1985 Rule, the action for recovery of civil liability
arising from crime including the civil liability under Articles
32, 33, 34 and 2176 of the Civil Code of the Philippines arising

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Art. 1161 OBLIGATIONS

from the same act or omission are deemed impliedly instituted


with the criminal action unless the offended party waives the
civil action, reserves his right to institute it separately, or
institutes the civil action prior to the criminal action.
Under the present rule, only the civil liability arising from
the offense charged is deemed instituted with the criminal
unless the offended party waives the civil action, reserves his
right to institute it separately, or institutes the civil action
prior to the criminal action.
b. Under the former rule, a waiver of any of three civil
actions extinguishes the others. The institution of, or the res-
ervation of the right to file any of said civil actions separately
waives the others. This is no longer provided for. The reserva-
tion and waiver refers only to the civil action for the recovery
of civil liability arising from the offense charged. This does not
include recovery of civil liability under Articles 32, 33, 34 and
2176 of the Civil Code of the Philippines arising from the same
act or omission which may be prosecuted separately even with-
out a reservation.
c. The rulings in Shafer vs. Judge, RTC of Olongapo
City, 167 SCRA 376, allowing a third-party complaint, and the
ruling in Javier vs. Intermediate Appellate Court, 171 SCRA
376, as well as Cabaero vs. Cantos allowing a counterclaim are
no longer in force. Under the 2000 Rules, these pleadings are
no longer allowed. Any claim which could have been the subject
thereof may be litigated in a separate civil action.
d. The rule also incorporated Circular 57-97 on the
filing of actions for violation of Batas Pambansa Blg. 22
mandating the inclusion of the corresponding civil action for
which the filing fee shall be paid based on the amount of the
check involved. In other cases, no filing fees shall be required
for actual damages.

Idem; Id. — Effect of acquittal. — If the accused in a


criminal action is acquitted of the offense charged, can a civil action
for damages based on the same act or omission still be instituted?
This question requires a qualified answer. If the acquittal of the
accused is based on the ground that his guilt has not been proved
beyond reasonable doubt, a civil action to recover damages based

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GENERAL PROVISIONS Art. 1161

on the same act or omission may still be instituted.54 In such case,


mere preponderance of evidence shall be sufficient in order that
the plaintiff will be able to recover from the defendant.55 On the
other hand, if the acquittal is based on the ground that he did not
commit the offense charged, or what amounts to the same thing, if
the acquittal proceeds from a declaration in a final judgment that
the fact from which the civil liability might arise did not exist, the
subsequent institution of a civil action to recover damages is, as a
general rule, no longer possible.56

Idem; id. — Effect of independent civil actions. — As a


rule, the civil action to recover damages from the person criminally
liable is not independent from the criminal action. This is true even
where it has, to a certain extent, been separated by the injured
party from the criminal proceedings either by reserving his right to
file a separate civil action or by commencing the action to recover
damages ahead of the criminal action. In the first, the right to file a
civil action shall depend upon the result of the criminal action, while
in the second, once the criminal action is instituted, the action to
recover damages shall be suspended.57 There are, however, certain
exceptional cases or instances under the Civil Code where the civil
action to recover damages is entirely separate and independent from
the criminal action, although the act or omission which is the basis
thereof may be a criminal offense. They are: first, where the civil
action is based on an obligation not arising from the act or omission
complained of as a criminal offense or felony;58 and second, where the
law grants to the injured party the right to institute a civil action
which is entirely separate and distinct from the criminal action.59 As
a matter of fact, we can even go to the extent of saying that these
cases or instances also constitute the exceptions to the rule that if
the accused in the criminal action is acquitted on the ground that he
did not commit the offense charged, the subsequent institution of a
civil action is no longer possible.

54
Art. 29, Civil Code.
55
Ibid.
56
Sec. 3(c), Rule 111, New Rules of Court.
57
Sec. 3(b), Rule 111, New Rules of Court.
58
Arts. 31, 177, Civil Code.
59
Arts. 32, 33, 34, Civil Code.

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Art. 1161 OBLIGATIONS

With regard to the first, it must be noted that where the civil
action is based on an obligation not arising from the act or omission
complained of as a criminal offense or felony, such action may
proceed independently of the criminal action and regardless of the
result of the latter.60 It is evident that in such case the basis of the
civil action may be an obligation arising from the law, contract,
quasi-contract, or quasi-delict. Thus, a postmaster, who has been
charged criminally for malversation of government funds under
his custody, may still be made a defendant in a civil case for the
recovery of the funds, not on the ground of malversation, but on
the ground that under Sec. 633 of the Revised Administrative Code,
he can be held accountable therefor.61 The basis of the civil action
in such case is not the obligation arising from the criminal offense
of malversation, but the obligation arising from the law. Similarly,
if a passenger in a certain bus institutes a civil action to recover
damages from the operator of the bus line for injuries sustained in
an accident, such action is separate and distinct from the criminal
prosecution of the driver for criminal negligence and may, therefore,
be continued regardless of the result of the latter. Consequently,
he can still recover damages even if the driver is acquitted in the
criminal action, because it is clear that the action in such case is
based on culpa contractual and not on the act or omission of the
driver complained of as felony.62 The same principle is also applicable
if the offense charged constitutes what is known as culpa aquiliana
or quasi-delict under the Civil Code.63 In such case, the injured party
can always institute a civil action to recover damages independently
of the criminal action and regardless of the result of the latter. This
is so even granting that the accused is acquitted in the criminal
action either on the ground of reasonable doubt or on the ground
that he did not commit the offense charged. The reason for this is
that the basis of the civil action is no longer the criminal liability of
the defendant, but a quasi-delict or tort.64

60
Art. 31, Civil Code.
61
Tolentino vs. Carlos, 39 Off. Gaz., No. 6, p. 121.
62
San Pedro Bus Line vs. Navarro, 94 Phil. 840; Bernaldes vs. Bohol Land Trans.
Co., 7 SCRA 276.
63
Art. 2176, et seq., Civil Code.
64
Art. 2177, Civil Code; Barredo vs. Garcia and Almario, 73 Phil. 607; Dyogi vs.
Yatco, 100 Phil. 1095; Calo vs. Peggy, 103 Phil. 1112; Stanvac vs. Tan, 107 Phil. 109.

16
GENERAL PROVISIONS Art. 1161

With regard to the second, it must be observed that there are


five exceptional cases or instances, in addition to that which is stated
in Art. 31 of the New Civil Code, where the law itself expressly
grants to the injured party the right to institute a civil action which
is entirely separate and distinct from the criminal action. They
are: (1) interferences by public officers or employees or by private
individuals with civil rights and liberties,65 (2) defamation,66 (3)
fraud,67 (4) physical injuries,68 and (5) refusal or neglect of a city or
municipal police officer to render aid or protection in case of danger
to life or property.69 In all of these cases or instances, although the
act or omission may constitute a criminal offense in accordance
with our penal laws, the injured party may institute a civil action
to recover damages which is entirely separate and distinct from the
criminal action. Once the action is instituted, then it may proceed
independently of the criminal action, and shall require only a
preponderance of evidence.70
Idem; id.; id. — Effect of failure to make reservation. —
Section 2 of Rule 111 of the New Rules of Court states: “In the cases
provided for in Articles 31, 32, 33, 34 and 2177 of the Civil Code of
the Philippines, an independent civil action entirely separate and
distinct from the criminal action, may be brought by the injured
party during the pendency of the criminal case, provided that the
right is reserved as required in the preceding section.’’ The insertion
in the foregoing provision of the phrase provided the right is reserved
as required in the preceding section, resulted in a debate among
academicians which lasted for more than twenty years.
Finally, interpreting the above provision, the Supreme Court,
in Garcia vs. Florido,71 declared:

“As we have stated at the outset, the same negligent act


causing damages may produce a civil liability arising from crime
or create an action for quasi-delict or culpa extra-contractual.

65
Art. 32, Civil Code.
66
Art. 33, Civil Code.
67
Ibid.
68
Ibid.
69
Art. 34, Civil Code.
70
Arts. 32, 33, 34, Civil Code.
71
52 SCRA 420. This case was also cited and quoted in Mendoza vs. Arrieta, 91
SCRA 113.

17
Art. 1161 OBLIGATIONS

The former is a violation of the criminal law, while the latter is


a distinct and independent negligence, having always had its
own foundation and individuality. Some legal writers are of the
view that in accordance with Article 31, the civil action based
upon quasi-delict may proceed independently of the criminal
proceeding for criminal negligence and regardless of the result
of the latter. Hence, ‘the proviso in Section 2 of Rule 111 with
reference to Articles 32, 33 and 34 of the Civil Code is contrary
to the letter and spirit of the said articles, for these articles
were drafted and are intended to constitute as exceptions to
the general rule stated in what is now Section 1 of Rule 111.
The proviso, which is procedural, may also be regarded as an
unauthorized amendment of substantive law.’ x x x’’

Again, in Abellana vs. Marabe,72 the Supreme Court declared:

“The restrictive interpretation x x x does not only result


in its emasculation but also gives rise to a serious constitutional
doubt. Article 33 is quite clear: ‘In case of x x x physical injuries,
a civil action for damages entirely separate and distinct from the
criminal action, may be brought by the injured party. Such civil
action shall proceed independently of the criminal prosecution,
and shall require only preponderance of evidence.’ That is a
substantive right not to be frittered away by a construction
that would render it nugatory, if through oversight, the
offended parties failed at the initial stage to seek recovery for
damages in a civil suit. x x x The grant of power to this Court
both in the present Constitution and under the 1935 Charter
does not extend to any diminution, increase or modification of
substantive right. It is a well-settled doctrine that a court is to
avoid construing a statute or legal norm in such a manner as
would give rise to a constitutional doubt. x x x The law as an
instrument of social control will fail in its function if through an
ingenious construction sought to be fastened on a legal norm,
particularly a procedural rule, there is placed an impediment to
a litigant being given an opportunity of vindicating an alleged
right.’’

Thus, in Elcano vs. Hill,73 where the first defendant had


been previously charged with the criminal offense of homicide and
subsequently acquitted on the ground that his act is not criminal,

72
57 SCRA 106.
73
77 SCRA 98.

18
GENERAL PROVISIONS Art. 1162

because of lack of intent to kill, coupled with a mistake, the Supreme


Court held, despite the fact that the plaintiffs (who are the parents
of the alleged victim) failed to make a reservation of their right
to institute the civil action separately, that such acquittal of the
defendant in the criminal case has not extinguished his liability
for quasi-delict under Art. 2176 of the Civil Code; hence, that
acquittal is not a bar to the civil action against him. The same
ruling was applied in Mendoza vs. Arrieta.74 In effect, the procedural
requirement provided for in Section 2 of Rule 111 of the New Rules
of Court is not mandatory.
Removal of Reservation Requirement For Independent
Civil Actions
Accordingly, Section 2 of the New Rules of Court was likewise
amended to read as:

“SEC. 3. When civil action may proceed independently.


— In the cases provided in Articles 32, 33, 34 and 2176 of the
Civil Code of the Philippines, the independent civil action may
be brought by the offended party. It shall proceed independently
of the criminal action and shall require only a preponderance of
evidence. In no case, however, may the offended party recover
damages twice for the same act or omission charged in the
criminal action.’’ (Revised Rules of Criminal Procedure 2000).

Under the former rule, the foregoing actions may only be


allowed if there is a reservation, or were filed ahead of the criminal
action. (Justice Oscar M. Herrera, Treatise on Criminal Procedure,
February 2001).

Art. 1162. Obligations derived from quasi-delicts shall


be governed by the provisions of Chapter 2, Title XVII of the
Book, and by special laws.75

Obligations Arising from Quasi-Delicts. — As it is used


in this part of the Civil Code, the term “quasi-delicts”76 refers to all
of those obligations which do not arise from law, contracts, quasi-

74
91 SCRA 113.
75
Art. 1093, Spanish Civil Code, in amended form.
76
In Spanish law, “cuasi-delitos’’ is sometimes known as “culpa aquiliana’’ or
“culpa extra-contractual.’’

19
Art. 1162 OBLIGATIONS

contracts, or criminal offenses.77 Thus, using Art. 2176 of the Civil


Code and decided cases as bases or anchors, it may be defined as the
fault or negligence of a person, who, by his act or omission, connected
or unconnected with, but independent from, any contractual relation,
causes damage to another person. It is, therefore, the equivalent of
the term “tort” in Anglo-American law.78

Idem; Persons liable. — Obligations arising from quasi-


delicts are demandable not only from the person directly responsible
for the damage incurred,79 but also against the following:
(1) The father and, in case of his death or incapacity, the
mother, with respect to damages caused by the minor children who
live in their company;
(2) Guardians, with respect to damages caused by the minors
or incapacitated persons who are under their authority and who live
in their company;
(3) The owners and managers of an establishment or
enterprise, with respect to damages caused by their employees in
the service of the branches in which the latter are employed or on
the occasion of their functions;
(4) Employers with respect to damages caused by their
employees and household helpers acting within the scope of their
assigned tasks, even though the former are not engaged in any
business or industry;
(5) The State, when it acts through a special agent; but not
when the damage has been caused by the official to whom the task
done properly pertains; and
(6) Lastly, teachers or heads of establishments of arts and
trades, with respect to damages caused by their pupils and students
or apprentices, so long as they remain in their custody.80
It must be noted, however, that the responsibility of the above
persons or entities shall cease if they can prove that they have

77
Report of the Code Commission, p. 161.
78
See Elcano and Elcano vs. Hill and Hill, 77 SCRA 98.
79
Art. 2176, Civil Code.
80
Art. 2180, Civil Code.

20
GENERAL PROVISIONS Art. 1162

observed all the diligence of a good father of a family to prevent


damage.81
Idem; Requisites of liability. — In actions based on quasi-
delicts, before the person injured can recover damages from the
defendant, it is necessary that he must be able to prove the following
facts:
(1) The fault or negligence of the defendant;
(2) The damage suffered or incurred by the plaintiff; and
(3) The relation of cause and effect between the fault or
negligence of the defendant and the damage incurred by the
plaintiff.82
Idem; Quasi-delicts and crimes. — Quasi-delicts and crimi-
nal offenses are sometimes difficult to distinguish from each other.
However, they may be distinguished from each other in the follow-
ing ways:
(1) Crimes affect the public interest, while quasi-delicts are
only of private concern;
(2) The Penal Code punishes or corrects the criminal act,
while the Civil Code, by means of indemnification, merely repairs
the damages incurred;
(3) Generally, there are two liabilities in crime: criminal and
civil. In quasi-delict, there is only civil liability; and
(4) Crimes are not as broad as quasi-delicts, because the
former are punished only if there is a law clearly covering them,
while the latter include all acts in which any kind of fault or
negligence intervenes.83
Idem; Scope of quasi-delicts. — In Elcano vs. Hill (G.R. No.
L-24303, May 26, 1977), the Supreme Court held that quasi-delicts
include acts which are criminal in character or in violation of the
penal law, whether voluntary or negligent. Using the exact language
of the Court, “it is ‘more congruent with the spirit of law, equity
and justice, and more in harmony with modern progress,’ to hold, as

81
Ibid.
82
Taylor vs. Manila Electric Co., 16 Phil. 8.
83
Barredo vs. Garcia and Almario, 73 Phil. 607.

21
Art. 1162 OBLIGATIONS

we do hold, that Article 2176, where it refers to fault or negligence,


covers not only acts not punishable by law but also acts criminal in
character, whether intentional or voluntary or negligent.’’

The above pronouncement of the Supreme Court is


startling. It expands the coverage of quasi-delicts beyond what
was originally contemplated by the lawmaker.
Under the general plan of our law on obligations, the scope
of obligations arising from the law, contracts, quasi-contracts,
and acts or omissions punished by law is well-defined. Their
boundaries are clearly delineated and drawn with precision. It
is only with respect to obligations arising from quasi-delicts that
there is a problem and this is natural because of the very nature
of such obligations. Under our system of liabilities, quasi-delicts
must necessarily be a sort of “dumping ground’’ or “garbage can’’
for all kinds of actionable wrongs not falling within the purview
of the four sources of obligations. As we look at it, the original
plan envisaged by the lawmaker is as follows:
The coverage of quasi-delicts which do not overlap with
crimes under the Revised Penal Code and special laws (and
which we can very well call the general rule) are: first, negligent
acts or omissions not punishable as criminal offenses; second,
intentional quasi-delicts or torts, such as those regulated by
Arts. 19, 21, 22, 26, 27, 28 and 1314 of the Civil Code; and
third, the so-called strict liability torts where there is neither
negligence nor intent to cause damage or injury, such as in the
case contemplated in Art. 23 of the Civil Code or in the case of
actionable nuisances under Arts. 694 and 705 of the Civil Code.
The coverage of quasi-delicts which overlap with acts
or omissions punishable under the Revised Penal Code (and
which we can very well call the exceptions) are: first, criminal
negligence; and second, acts or omissions punishable as crimes
under the Revised Penal Code but the Civil Code expressly
declares that the civil action arising therefrom is separate and
independent from the criminal action. (Arts. 31, 32, 33 and 34 of
the Civil Code)
We believe that the above arrangement was deliberately
planned. Thus, according to the Code Commission in its Report:
“The Commission also thought of the possibility of adopting
the word ‘tort’ from Anglo-American law. But ‘tort’ under that
system is much broader than the Spanish-Philippine concept
of obligations arising from non-contractual negligence. ‘Tort’ in
Anglo-American jurisprudence includes not only negligence, but

22
GENERAL PROVISIONS Art. 1162

also intentional criminal acts, such as assault and battery, false


imprisonment and deceit. In the general plan of the Philippine
legal system, intentional and malicious acts are governed by
the Penal Code, although certain exceptions are made in the
Project.’’ (Report, pp. 161-162)

Idem; Character of remedy. — In Padua vs. Robles,84 in his


concurring opinion, Justice Barredo declared: “It is by now beyond
all cavil, as to dispense with the citation of jurisprudence, that a
negligent act, such as that committed in this case, gives rise to at
least two separate and independent liabilities, namely (1) the civil
liability arising from crime or culpa criminal and (2) the liability
arising from civil negligence or the so-called culpa aquiliana.
These two concepts of faults are so distinct from each other that
exoneration from one does not result in exoneration from the other.
Adjectively and substantively, they can be prosecuted separately
and independently of each other, although Article 2177 of the Civil
Code precludes recovery of damages twice for the same negligent
act or omission, which means that should there be varying amounts
awarded in two separate cases, the plaintiff may recover, in effect,
only the bigger amount. That is to say, if the plaintiff had already
been ordered paid an amount in one case and in the other case the
amount adjudged is bigger, he shall be entitled in the second case
only to the excess over the one fixed in the first case, but if he had
already been paid a bigger amount in the first case, he may not
recover anymore in the second case.’’
The above opinion was confirmed in Elcano vs. Hill.85 Thus,
according to the Supreme Court: “Consequently, a separate civil
action lies against the offender in a criminal act, whether or not he
is criminally prosecuted and found guilty or acquitted, provided that
the offended party is not allowed, if he is actually charged criminally,
to recover damages on both scores, and would be entitled in such
eventuality only to the bigger award of the two assuming that the
awards made in the two cases vary. In other words, the extinction of
the civil liability referred to in Par. (e) of Section 3, Rule 111, refers
exclusively to civil liability founded on Article 100 of the Revised
Penal Code, whereas the civil liability for the same act considered

84
66 SCRA 485.
85
77 SCRA 98.

23
Art. 1162 OBLIGATIONS

as a quasi-delict only and not as a crime is not extinguished even by


a declaration in the criminal case that the criminal act charged has
not happened or has not been committed by the accused.”
However, in Mendoza vs. Arrieta,86 a more recent case, there was
a return to the old doctrine of selection of remedies. In this case, the
Supreme Court categorically held that since the offended or injured
party had chosen the remedy of proceeding under the Revised Penal
Code by allowing the civil action to be impliedly instituted in the
criminal action, and since the court had expressly declared that the
fact from which the civil liability did not exist, therefore, the civil
action for damages subsequently commenced by said injured party
against the defendant has already been extinguished in consonance
with Sec. 3(c), Rule 111 of the Rules of Court. And even if plaintiff’s
cause of action against defendant is not ex-delicto, the end result
would be the same, it being clear from the judgment in the criminal
case that defendant’s acquittal was not based upon reasonable
doubt.
Thus, the problem is still very much with us. The debate rages
on.

Barredo vs. Garcia and Almario


73 Phil. 607

This case come up from the Court of Appeals which held


the petitioner herein, Fausto Barredo, liable in damages for
the death of Faustino Garcia caused by the negligence of Pedro
Fontanilla, a taxi driver employed by said Fausto Barredo.
At about half past one in the morning of May 3, 1936,
on the road between Malabon and Navotas, Province of Rizal,
there was a head-on collision between a taxi of the Malate
Taxicab driven by Pedro Fontanilla and a carretela guided by
Pedro Dimapilis. The carretela was overturned, and one of its
passengers, 16-year-old Faustino Garcia, suffered injuries from
which he died two days later. A criminal action was filed against
Fontanilla in the Court of First Instance of Rizal, and he was
convicted and sentenced to an indeterminate sentence of one
year and one day to two years of prision correccional. The court
in the criminal case granted the petition that the right to bring a
separate civil action be reserved. The Court of Appeals affirmed

86
91 SCRA 113.

24
GENERAL PROVISIONS Art. 1162

the sentence of the lower court in the criminal case. Severino


Garcia and Timotea Almario, parents of the deceased on March
7, 1939, brought an action in the Court of First Instance of
Manila against Faustino Barredo as the sole proprietor of the
Malate Taxicab and employer of Pedro Fontanilla. On July 8,
1939, the Court of First Instance of Manila awarded damages
in favor of the plaintiffs for P2,000 plus legal interest from the
date of the complaint. This decision was modified by the Court of
Appeals by reducing the damages to P1,000 with legal interest
from the time the action was instituted. It is undisputed that
Fontanilla’s negligence was the cause of the mishap, as he was
driving on the wrong side of the road, and at high speed. As to
Barredo’s responsibility, the Court of Appeals found:
“* * * It is admitted that defendant is Fontanilla’s employer.
There is no proof that he exercised the diligence of a good father
of a family to prevent the damage. (See p. 22, appellant’s brief.)
In fact it is shown he was careless in employing Fontanilla who
had been caught several times for violation of the Automobile
Law and speeding (Exhibit A) — violations which appeared in
the records of the Bureau of Public Works available to the public
and to himself. Therefore, he must indemnify plaintiffs under
the provisions of Article 1903 of the Civil Code.’’
The main theory of the defense is that the liability of
Fausto Barredo is governed by the Revised Penal Code; hence,
his liability is only subsidiary, and as there has been no civil
action against Pedro Fontanilla, the person criminally liable,
Barredo cannot be held responsible in this case. The petitioner’s
brief states on page 10:
“* * * The Court of Appeals holds that the petitioner is being
sued for his failure to exercise all the diligence of a good father
of a family in the selection and supervision of Pedro Fontanilla
to prevent damages suffered by the respondents. In other words,
the Court of Appeals insists on applying in this case Article
1903 of the Civil Code. Article 1903 of the Civil Code is found in
Chapter 11, Title 16, Book IV of the Civil Code. This fact makes
said article inapplicable to a civil liability arising from a crime
as in the case at bar simply because Chapter II of Title 16 of
Book lV of the Civil Code, in precise words of Article 1903 of the
Civil Code itself, is applicable only to “those (obligations) arising
from wrongful or negligent acts or omissions not punishable by
law.’ ’’
The gist of the decision of the Court of Appeals is expressed
thus:

25
Art. 1162 OBLIGATIONS

“* * * We cannot agree to the defendant’s contention.


The liability sought to be imposed upon him in this action is
not a civil obligation arising from a felony or a misdemeanor
(the crime of Pedro Fontanilla), but an obligation imposed in
Article .1903 of the Civil Code by reason of his negligence in the
selection or supervision of his servant or employee.”

Speaking through Justice Bocobo, the Supreme Court held:

“The pivotal question in this case is whether the plaintiffs


may bring this separate civil action against Fausto Barredo,
thus making him primarily and directly responsible under
Article 1903 (now Art. 2180, New Civil Code) of the Civil Code as
an employer of Pedro Fontanilla. The defendant maintains that
Fontanilla’s negligence being punishable by the Penal Code,
his (defendant’s) liability as an employer is only subsidiary,
according to said Penal Code, but Fontanilla has not been sued
in a civil action and his property has not been exhausted. To
decide the main issue, we must cut through the tangle that has,
in the minds of many, confused and jumbled together delitos
and cuasi delitos, or crimes under the Penal Code and fault or
negligence under Articles 1902-1910 (now Arts. 2176 to 2194,
New Civil Code) of the Civil Code.
“Authorities support the proposition that a quasi-delict or
“culpa aquiliana’’ is a separate legal institution under the Civil
Code, with a substantivity all its own, and individuality that is
entirely apart and independent from a delict or crime. Upon this
principle, and on the wording and spirit of Article 1903 of the
Civil Code, the primary and direct responsibility of employers
may be safely anchored.
xxx
“It will thus be seen that while the terms of Article.1902
of the Civil Code seem to be broad enough to cover the driver’s
negligence in the instant case, nevertheless Article 1093 limits
cuasi-delitos to acts or omissions “not punishable by law.’’ But
inasmuch as Article 365 of the Revised Penal Code punishes
not only reckless but even simple imprudence or negligence,
the fault or negligence under Article 1902 of the Civil Code has
apparently been crowded out. It is this overlapping that makes
the “confusion worse confounded.’’ However, a closer study
shows that such a concurrence of scope in regard to negligent
acts does not destroy the distinction between the civil liability
arising from a crime and the responsibility for cuasi-delitos

26
GENERAL PROVISIONS Art. 1162

or culpa extra-contractual. The same negligent act causing


damages may produce civil liability arising from a crime under
Article 100 of the Revised Penal Code, or create an action for
cuasi-delito or culpa extra-contractual under Articles 1902-1910
of the Civil Code.
xxx
The foregoing authorities clearly demonstrate the separate
individuality of cuasi-delitos or culpa aquiliana under the Civil
Code. Specifically they show that there is a distinction between
civil liability arising from criminal negligence (governed by the
Penal Code) and responsibility for fault of negligence under
Articles 1902 to 1910 of the Civil Code, and that the same
negligent act may produce either a civil liability arising from
a crime under the Penal Code, or a separate responsibility for
fault or negligence under Articles 1902 to 1910 of the Civil
Code. Still more concretely, the authorities above cited render
it inescapable to conclude that the employer — in this case the
defendant-petitioner — is primarily and directly liable under
Article 1903 of the Civil Code.
The legal provisions, authors, and cases already invoked
should ordinarily be sufficient to dispose of this case. But
inasmuch as we are announcing doctrines that have been little
understood in the past, it might not be inappropriate to indicate
their foundations.
“Firstly, the Revised Penal Code in Article 366 punishes
not only reckless but also simple negligence. If we were to hold
that Articles 1902 to 1910 of the Civil Code refer only to fault or
negligence not punished by law according to the literal import
of Article 1093 of the Civil Code, the legal institution of culpa
aquiliana would have very little scope and application in actual
life. Death or injury to persons and damage to property through
any degree of negligence — even the slightest — would have to
be indemnified only through the principle of civil liability arising
from a crime. In such a state of affairs, what sphere would remain
for cuasi-delito or culpa aquiliana? We are loath to impute to
the lawmaker any intention to bring about a situation so absurd
and anomalous. Nor are we, in the interpretation of the laws,
disposed to uphold the letter that killeth rather than the spirit
that giveth life. We will not use the literal meaning of the law
to smother and render almost lifeless a principle of such ancient
origin and such full-grown development as culpa aquiliana or
cuasi-delito, which is conserved and made enduring in Articles
1902 to 1910 of the Spanish Civil Code.

27
Art. 1162 OBLIGATIONS

“Secondly, to find the accused guilty in a criminal case,


proof of guilt beyond reasonable doubt is required, while in
a civil case, preponderance of evidence is sufficient to make
the defendant pay in damages. There are numerous cases of
criminal negligence which can not be shown beyond reasonable
doubt, but can be proved by a preponderance of evidence. In
such cases, the defendant can and should be made responsible
in a civil action under Articles 1902 to 1910 of the Civil Code.
Otherwise, there would be many instances of unvindicated civil
wrongs. Ubi jus ibi remedium.
“Thirdly, to hold that there is only one way to make de-
fendant’s liability effective, and that is, to sue the driver and
exhaust his (the latter’s) property first, would be tantamount
to compelling the plaintiff to follow a devious and cumbersome
method of obtaining relief. True, there is such a remedy un-
der our laws, but there is also a more expeditious way, which
is based on the primary and direct responsibility of the defen-
dant under Article. 1903 of the Civil Code. Our view of the law
is more likely to facilitate remedy for civil wrongs, because the
procedure indicated by the defendant is wasteful and productive
of delay, it being a matter of common knowledge that profes-
sional drivers of taxis and similar public conveyances usually
do not have sufficient means with which to pay damages. Why,
then, should the plaintiff be required in all cases to go through
this roundabout, unnecessary, and probably useless procedure?
In construing the laws, courts have endeavored to shorten and
facilitate the pathways of right and justice.
“At this juncture, it should be said that the primary
and direct responsibility of employers and their presumed
negligence are principles calculated to protect society. Workmen
and employees should be carefully chosen and supervised in
order to avoid injury to the public. It is the masters or employers
who principally reap the profits resulting from the services of
these servants and employees. It is but right that they should
guarantee the latter’s careful conduct for the personal and
patrimonial safety of others. As Theilhard has said, “they
should reproach themselves, at least, some for their weakness,
others for their poor selection and all for their negligence.” And
according to Manresa, “It is much more equitable and just that
such responsibility should fall upon the principal or director
who could have chosen a careful and prudent employee, and not
upon the injured person who could not exercise such selection
and who used such employee because of his confidence in the
principal or director.” (Vol. 12, p. 622, 2nd Ed.) Many jurists also

28
GENERAL PROVISIONS Art. 1162

base this primary responsibility of the employer on the principle


of representation of the principal by the agent. Thus, Oyuelos
says in the work already cited (Vol. 7, p. 747) that before third
persons the employer and employee “vienen a ser como una sola
personalidad, por refundicion de la del dependiente en la de quien
le emplea y utiliza” (“become as one personality by the merging
of the person of the employee in that of him who employs and
utilizes him.”) All these observations acquire a peculiar force
and significance when it comes to motor accidents, and there is
need of stressing and accentuating the responsibility of owners
of motor vehicles.
“Fourthly, because of the broad sweep of the provisions of
both the Penal Code and the Civil Code on this subject, which
has given rise to the overlapping or concurrence of spheres
already discussed, and for lack of understanding of the character
and efficacy of the action for culpa aquiliana, there has grown
up a common practice to seek damages only by virtue of the
civil responsibility arising from a crime, forgetting that there
is another remedy, which is by invoking Articles 1902-1910 of
the Civil Code. Although this habitual method is allowed by
our laws, it has nevertheless rendered practically useless and
nugatory the more expeditious and effective remedy based on
culpa aquiliana or extra-contractual.
“In view of the foregoing, the judgment of the Court of
Appeals should be and is hereby affirmed, with costs against the
defendant-petitioner.’’

Elcano vs. Hill


77 SCRA 98

This is an appeal from an order of the Court of First


Instance of Quezon City dismissing the complaint of plaintiffs
for recovery of damages from defendant Reginald Hill, a minor,
married at the time of occurrence, and his father, defendant
Marvin Hill, with whom he was living and getting subsistence,
for the killing by Reginald of the son of the plaintiffs, of which
when criminally prosecuted, the said accused was acquitted
on the ground that his act was not criminal, because of lack of
intent to kill, coupled with a mistake. According to the Supreme
Court, speaking through Justice Barredo:
“As We view the foregoing background of this case, the two
decisive issues presented for Our resolution are:
1. Is the present civil action for damages barred by the

29
Art. 1162 OBLIGATIONS

acquittal of Reginald in the criminal case wherein the action for


civil liability was not reserved?
2. May Article 2180 (2nd and last paragraphs) of the
Civil Code be applied against Atty. Hill, notwithstanding the
undisputed fact that at the time of the occurrence complained of,
Reginald, though a minor, living with and getting subsistence
from his father, was already legally married?
“The first issue presents no more problem than the need
for a reiteration and further clarification of the dual character,
criminal and civil, of fault or negligence as a source of obligation
which was firmly established in this jurisdiction in Barredo vs.
Garcia, 73 Phil. 607. In that case, this Court postulated, on the
basis of a scholarly dissertation by Justice Bocobo on the nature
of culpa aquiliana in relation to culpa criminal or delito and
mere culpa or fault, with pertinent citation of decisions of the
Supreme Court of Spain, the works of recognized civilians, and
earlier jurisprudence of our own, that the same given act can
result in civil liability not only under the Penal Code but also
under the Civil Code.
“Contrary to an immediate impression one might get upon
a reading of x x x Garcia — that the concurrence of the Penal
Code and the Civil Code therein referred to contemplate only
acts of negligence and not intentional voluntary acts — deeper
reflection would reveal that the thrust of the pronouncements
therein is not so limited, but that in fact it actually extends to
fault or culpa. This can be seen in the reference made therein to
the Sentence of the Supreme Court of Spain of February 14, 1919,
supra, which involved a case of fraud or estafa, not a negligent
act. Indeed, Article 1093 of the Civil Code of Spain, in force here
at the time of Garcia, provided textually that obligations which
are derived from acts or omissions, in which fault or negligence,
not punishable by law, intervene shall be the subject of Chapter
II, Title XV of this book (which refers to quasi-delicts.)’’ And it is
precisely the underlined qualification, “not punishable by law,’’
that Justice Bocobo emphasized could lead to an undesirable
construction or interpretation of the letter of the law that
“killeth, rather than the spirit that giveth life’’ hence, the ruling
that “(W)e will not use the literal meaning of the law to smother
and render almost lifeless a principle of such ancient origin and
such full-grown development as culpa aquiliana or cuasi-delito,
which is conserved and made enduring in Articles 1902 to 1910
of the Spanish Civil Code.’’ And so, because Justice Bocobo was
Chairman of the Code Commission that drafted the original
text of the new Civil Code, it is to be noted that the said Code,

30
GENERAL PROVISIONS Art. 1162

which was enacted after the Garcia doctrine, no longer uses the
term, “not punishable by law,’’ thereby making it clear that the
concept of culpa aquiliana includes acts which are criminal in
character or in violation of the penal law, whether voluntary or
negligent. Thus, the corresponding provision to said Article 1093
in the new code, which is Article 1162, simply says, “Obligations
derived from quasi-delicts shall be governed by the provisions
of Chapter 2, Title XVII of this Book (on quasi-delicts), and by
special laws.’’ More precisely, a new provision, Article 2177 of
the new code provides:

“ART. 2177. Responsibility for fault or negligence


under the preceding article is entirely separate and distinct
from the civil liability arising from negligence under the
Penal Code. But the plaintiff cannot recover damages
twice for the same act or omission of the defendant.’’

According to the Code Commission: “The foregoing provi-


sion (Article 2177) though at first sight startling, is not so novel
or extraordinary when we consider the exact nature of criminal
and civil negligence. The former is a violation of the criminal
law, while the latter is a culpa aquiliana or quasi-delict, of an-
cient origin, having always had its own foundation and indi-
viduality separate from criminal negligence. Such distinction
between criminal negligence and culpa extra-contractual or cu-
asi-delito has been sustained by decisions of the Supreme Court
of Spain and outstanding Spanish jurists. Therefore, under the
proposed Article 2177, acquittal from an accusation of criminal
negligence, whether on reasonable doubt or not, shall not be
a bar to a subsequent civil action, not for civil liability arising
from criminal negligence, but for damages due to a quasi-delict
or culpa aquiliana. But said article forestalls a double recovery.”
(Report of the Code Commission, p. 162.)
Although, again, this Article 2177 does seem to literally
refer to only acts of negligence, the same argument of Justice
Bocobo about construction that upholds “the spirit that giveth
life’’ rather than that which is literal that killeth the intent of
the lawmaker should be observed in applying the same. And
considering that the preliminary chapter on human relations of
the new Civil Code definitely establishes the separability and
independence of liability in a civil action for acts criminal in
character (under Articles .29 to 32) from the civil responsibility
arising from crime fixed by Article 100 of the Revised Penal
Code, and, in a sense, the Rules of Court, under Sections 2 and
3(c), Rule III, contemplate also the same separability, it is “more

31
Art. 1162 OBLIGATIONS

congruent with the spirit of law, equity and justice, and more
in harmony with modern progress,’’ to borrow the felicitous
relevant language in Rakes vs. Atlantic Gulf and Pacific Co., 7
Phil. 359, to hold, as We do hold, that Article 2176, where it refers
to “fault or negligence,’’ covers not only acts “not punishable by
law’’ but also acts criminal in character, whether intentional
and voluntary or negligent. Consequently, a separate civil action
lies against the offender in a criminal act, whether or not he is
criminally prosecuted and found guilty or acquitted, provided
that the offended party is not allowed, if he is actually charged
also criminally, to recover damages on both scores, and would
be entitled in such eventuality only to the bigger award of the
two, assuming the awards made in the two cases vary. In other
words, the extinction of civil liability referred to in Par. (e) of
Section 3, Rule III, refers exclusively to civil liability founded on
Article 100 of the Revised Penal Code, whereas the civil liability
for the same act considered as a quasi-delict only and not as a
crime is not extinguished even by a declaration in the criminal
case that the criminal act charged has not happened or has not
been committed, by the accused. Briefly stated, We here hold, in
reiteration of Garcia, that culpa aquiliana includes voluntary
and negligent acts which may be punishable by law.
It results, therefore, that the acquittal of Reginald Hill in
the criminal case has not extinguished his liability for quasi-
delict, hence that acquittal is not a bar to the instant action
against him.
Coming now to the second issue about the effect of
Reginald’s emancipation by marriage on the possible civil
liability of Atty. Hill, his father, it is also Our considered opinion
that the conclusion of appellees that Atty. Hill is already free
from responsibility cannot be upheld.
While it is true that parental authority is terminated upon
emancipation of the child (Article 327, Civil Code), and under
Article 397, emancipation takes place “by the marriage of the
minor (child),” it is, however, also clear that pursuant to Article
399, emancipation by marriage of the minor is not really full
or absolute. Thus “Emancipation by marriage or by voluntary
concession shall terminate parental authority over the child’s
person. It shall enable the minor to administer his property as
though he were of age, but he cannot borrow money or alienate
or encumber real property without the consent of his father or
mother, or guardian. He can sue and be sued in court only with
the assistance of his father, mother or guardian.’’

32
GENERAL PROVISIONS Art. 1162

Now, under Article 2180, “The obligation imposed by Article


2176 is demandable not only for one’s own acts or omissions,
but also for those of persons for whom one is responsible. The
father and, in case of his death or incapacity, the mother, are
responsible for the damages caused by the minor children who
live in their company.’’ In the instant case, it is not controverted
that Reginald, although married, was living with his father and
getting subsistence from him at the time of the occurrence in
question. Factually, therefore, Reginald was still subservient to
and dependent on his father, a situation which is not unusual.
“It must be borne in mind that, according to Manresa, the
reason behind the joint and solidary liability of parents with their
offending child under Article 2180 is that it is the obligation of
the parent to supervise their minor children in order to prevent
them from causing damage to third persons. On the other hand,
the clear implication of Article 399, in providing that a minor
emancipated by marriage may not nevertheless, sue or be sued
without the assistance of the parents, is that such emancipation
does not carry with it freedom to enter into transactions or do
any act that can give rise to judicial litigation. (See Manresa,
id., Vol. II, pp. 766-767, 776.) And surely, killing someone else
invites judicial action. Otherwise stated, the marriage of a
minor child does not relieve the parents of the duty to see to
it that the child, while still a minor, does not give cause to any
litigation, in the same manner that the parents are answerable
for the borrowing of money and alienation or encumbering of
real property which cannot be done by their minor married child
without their consent. (Art. 399; Manresa, supra.)
“Accordingly, in Our considered view, Article 2180 applies
to Atty. Hill notwithstanding the emancipation by marriage of
Reginald. However, inasmuch as it is evident that Reginald is
now of age, as a matter of equity, the liability of Atty. Hill has
become merely subsidiary to that of his son.
“WHEREFORE, the order appealed from is reversed and
the trial court is ordered to proceed in accordance with the
foregoing opinion. Costs against appellees.’’

Mendoza vs. Arrieta


91 SCRA 113
The records show that a three-way vehicular accident
occurred involving a Mercedes Benz owned and driven by
Edgardo Mendoza, a private jeep owned and driven by Rodolfo
Salazar and a sand-and-gravel truck owned by Felipino Timbol

33
Art. 1162 OBLIGATIONS

and driven by Freddie Montoya. As a consequence of the mishap,


two separate criminal actions for damage to property through
reckless imprudence were instituted. The first was instituted
by Mendoza against Salazar, while the second was instituted
by Salazar against Montoya. There was no reservation made
by both complainants of their right to institute a civil action
separately. After hearing the two cases jointly, the court
rendered judgment acquitting Salazar on the ground that his
jeep was bumped from behind by the truck causing it to collide
with the Mercedes Benz. Montoya, on the other hand, was
convicted on the ground that his guilt was established beyond
reasonable doubt. He was ordered to pay to Salazar the amount
of P972.50 for actual damages to the latter’s jeep. After the
termination of the criminal cases, Mendoza filed a civil case.
against both Salazar and Timbol, either in the alternative or
in solidum, for indemnification for damages. Upon motions of
both defendants, the respondent court dismissed the case. The
plaintiff, as a consequence, went up to the Supreme Court by
means of a petition for certiorari seeking a review of the orders
of dismissal. Speaking through Justice Herrera, the Supreme
Court held:
“We shall first discuss the validity of the Order, dated
September 12, 1970, dismissing petitioner’s Complaint against
truck-owner Timbol.
“In dismissing the complaint against the truck-owner,
respondent Judge sustained Timbol’s allegations that the civil
suit is barred by the prior joint judgment in Criminal Cases Nos.
SM-227 and SM-228, wherein no reservation to file a separate
civil case was made by petitioner and where the latter actively
participated in the trial and tried to prove damages against
jeep-driver Salazar only; and that the Complaint does not
state a cause of action against truck-owner Timbol inasmuch
as petitioner prosecuted jeep-owner-driver Salazar as the one
solely responsible for the damage suffered by his car.
“Well-settled is the rule that for a prior judgment to
constitute a bar to a subsequent case, the following requisites
must concur: (1) it must be a final judgment; (2) it must have
been rendered by a Court having jurisdiction over the subject
matter and over the parties; (3) it must be a judgment on the
merits; and (4) there must be, between the first and second
actions, identity of parties, identity of subject matter and
identity of cause of action.
“It is conceded that the first three requisites of res judicata
are present. However, we agree with petitioner that there is

34
GENERAL PROVISIONS Art. 1162

no identity of cause of action between Criminal Case No. SM-


227 and Civil Case No. 80803. Obvious is the fact that in said
criminal case truck-driver Montoya was not prosecuted for
damage to petitioner’s car but for damage to the jeep. Neither
was truck-owner Timbol a party in said case. In fact as the
trial Court had put it “the owner of the Mercedes Benz cannot
recover any damages from the accused Freddie Montoya, he
(Mendoza) being a complainant only against Rodolfo Salazar
in Criminal Case No. SM-228.’’ And more importantly, in the
criminal cases, the cause of action was the enforcement of the
civil liability arising from criminal negligence under Article
100 of the Revised Penal Code, whereas Civil Case No. 80803 is
based on quasi-delict under Article 2180, in relation to Article
2176 of the Civil Code. As held in Barredo vs. Garcia, et al.:

“The foregoing authorities clearly demonstrate the


separate individuality of cuasi-delitos or culpa aquiliana
under the Civil Code. Specifically they show that there is
a distinction between civil liability arising from criminal
negligence (governed by the Penal Code) and responsibility
for fault or negligence under Articles 1902 to 1910 of
the Civil Code, and that the same negligent act may
produce either a civil liability arising from a crime under
the Penal Code, or a separate responsibility for fault or
negligence under Articles 1902 to 1910 of the Civil Code.
Still more concretely, the authorities above cited render
it inescapable to conclude that the employer, in this case
the defendant-petitioner, is primarily and directly liable
under Article 1903 of the Civil Code.”
“The petitioner’s cause of action against Timbol in the Civil
case is based on quasi-delict is evident from the recitals in the
complaint, to wit: that while petitioner was driving his car along
MacArthur Highway at Marilao, Bulacan, a jeep owned and
driven by Salazar suddenly swerved to his (petitioner’s) lane and
collided with his car; that the sudden swerving of Salazar’s jeep
was caused either by the negligence and lack of skill of Freddie
Montoya, Timbol’s employee, who was then driving a gravel-and-
sand truck in the same direction as Salazar’s jeep; and that as a
consequence of the collision, petitioner’s car suffered extensive
damage amounting to P12,248.20 and that he likewise incurred
actual and moral damages, litigation expenses and attorney’s
fees. Clearly, therefore, the two factors that a cause of action
must consist of, namely: (1) plaintiff’s primary right, i.e., that
he is the owner of a Mercedes Benz; and (2) defendants’ delict
or wrongful act or omission which violated plaintiff’s primary
right, i.e., the negligence or lack of skill either of jeep-owner

35
Art. 1162 OBLIGATIONS

Salazar or of Timbol’s employee, Montoya, in driving the truck,


causing Salazar’s jeep to swerve and collide with petitioner’s
car, were alleged in the Complaint.
“Consequently, petitioner’s cause of action being based on
quasi-delict, respondent Judge committed reversible error when
he dismissed the civil suit against the truck-owner, as said case
may proceed independently of the criminal proceedings and
regardless of the result of the latter.
“Art. 31. When the civil action is based on an obliga-
tion not arising from the act or omission complained of as
a felony, such civil action may proceed independently of
the criminal proceedings and regardless of the result of
the latter.”
“But it is truck-owner Timbol’s submission (as well as
that of jeep-owner-driver Salazar) that petitioner’s failure to
make a reservation in the criminal action of his right to file an
independent civil action bars the institution of such separate
civil action, invoking Section 2, Rule 111, Rules of Court, which
says:
“Section 2. Independent civil action. — In the cases
provided for in Articles 31, 32, 33, 34 and 2177 of the
Civil Code of the Philippines, an independent civil action
entirely separate and distinct from the criminal action
may be brought by the injured party during the pendency
of the criminal case, provided the right is reserved as
required in the preceding section, Such civil action shall
proceed independently of the criminal prosecution, and
shall require only a preponderance of evidence.’’
“Interpreting the above provision, this Court, in Garcia vs.
Florido, said:
“As we have stated at the outset, the same negligent
act causing damages may produce a civil liability arising
from crime or create an action for quasi-delict or culpa
extra-contractual. The former is a violation of the criminal
law, while the latter is a distinct and independent
negligence, having always had its own foundation and
individuality. Some legal writers are of the view that in
accordance with Article 31, the civil action based upon
quasi-delict may proceed independently of the criminal
proceeding from criminal negligence and regardless of
the result of the latter. Hence, ‘the proviso in Section 2
of Rule 111 with reference to x x x Articles 32, 33 and
34 of the Civil Code is contrary to the letter and spirit

36
GENERAL PROVISIONS Art. 1162

of the said articles, for these articles were drafted x x x


and are intended to constitute as exceptions to the general
rule stated in what is now Section 1 of Rule 111. The
proviso, which is procedural may also be regarded as an
unauthorized amendment of substantive law, Articles 32,
33 and 34 of the Civil Code, which do not provide for the
reservation required in the proviso.’ x x x”

“In his concurring opinion in the above case, Mr. Justice


Antonio Barredo further observed that inasmuch as Articles
2176 and 2177 of the Civil Code create a civil liability distinct
and different from the civil action arising from the offense of
negligence under the Revised Penal Code, no reservation,
therefore, need be made in the criminal case; that Section 2 of
Rule 111 is inoperative, “it being substantive in character and
is not within the power of the Supreme Court to promulgate;
and even if it were not substantive but adjective, it cannot stand
because of its inconsistency with Article 2177, an enactment of
the legislature superseding the Rules of 1940.”
“We declare, therefore, that in so far as truck-owner
Timbol is concerned, Civil Case No. 80803 is not barred by the
fact that petitioner failed to reserve, in the criminal action, his
right to file an independent civil action based on quasi-delict.
“The case as against jeep-owner-driver Salazar, who was
acquitted in Criminal Case No. SM-228, presents a different
picture altogether.
“At the outset it should be clarified that inasmuch as civil
liability co-exists with criminal responsibility in negligence
cases, the offended party has the option between an action for
enforcement of civil liability based on culpa criminal under
Article 100 of the Revised Penal Code, and an action for recovery
of damages based on culpa aquiliana under Article 2177 of the
Civil Code. The action for enforcement of civil liability based on
culpa criminal under Section 1 of Rule 111 of the Rules of Court
is deemed simultaneously instituted with the criminal action,
unless expressly waived or reserved for separate application by
the offended party.
“The circumstances attendant to the criminal case yields
the conclusion that petitioner had opted to base his cause of
action against jeep-owner-driver Salazar on culpa criminal and
not on culpa aquiliana, as evidenced by his active participation
and intervention in the prosecution of the criminal suit against
said Salazar. The latter’s civil liability continued to be involved
in the criminal action until its termination. Such being the case,

37
Art. 1162 OBLIGATIONS

there was no need for petitioner to have reserved his right to file
a separate civil action as his action for civil liability was deemed
impliedly instituted in Criminal Case No. SM-228.
“Neither would an independent civil action lie. Noteworthy
is the basis of the acquittal of jeep-owner-driver Salazar in the
criminal case, expounded by the Trial Court in this wise:
“In view of what has been proven and established
during the trial, accused Freddie Montoya would be held
liable for having bumped and hit the rear portion of the
jeep driven by the accused Rodolfo Salazar.
“Considering that the collision between the jeep
driven by Rodolfo Salazar and the car owned and driven
by Edgardo Mendoza was the result of the hitting on the
rear of the jeep by the truck driven by Freddie Montoya,
this Court believes that accused Rodolfo Salazar cannot
be held liable for the damages sustained by Edgardo
Mendoza’s car.”
“Crystal clear is the trial court’s pronouncement that
under the facts of the case, jeep-owner-driver Salazar cannot
be held liable for the damages sustained by petitioner’s car. In
other words, “the fact from which the civil might arise did not
exist.’’ Accordingly, inasmuch as petitioner’s cause of action
as against jeep-owner-driver Salazar is ex-delictu, founded on
Article 100 of the Revised Penal Code, the civil action must be
held to have been extinguished in consonance with Section 3(c),
Rule 111 of the Rules of Court which provides:

“Sec. 3. Other civil actions arising from offenses.


— In all cases not included in the preceding section the
following rules shall be observed:
xxx
(c) Extinction of the penal action does not carry
with it extinction of the civil, unless the extinction
proceeds from a declaration in a final judgment that the
fact from which the civil might arise did not exist. x x x’’

“And even if petitioner’s cause of action as against jeep-


owner-driver Salazar were not ex-delictu, the end result would
be the same, it being clear from the judgment in the criminal
case that Salazar’s acquittal was not based upon reasonable
doubt, consequently, a civil action for damages can no longer
be instituted. This is explicitly provided for in Article 29 of the
Civil Code quoted hereunder:

38
GENERAL PROVISIONS Art. 1162

“Art. 29. When the accused in a criminal prosecution


is acquitted on the ground that his guilt has not been
proved beyond reasonable doubt, a civil action for damages
for the same act or omission may be instituted. Such action
requires only a preponderance of evidence. x x x
“If in a criminal case the judgment of acquittal is
based upon reasonable doubt, the court shall so declare.
In the absence of any declaration to that effect, it may be
inferred from the text of the decision whether or not the
acquittal is due to that ground.’’
‘’In so far as the suit against jeep-owner-driver Salazar
is concerned, therefore, we sustain respondent Judge’s Order
dated January 30, 1971 dismissing the complaint, albeit on
different grounds.

“WHEREFORE, 1) the Order dated September 12, 1970


dismissing Civil Case No. 80803 against private respondent
Felipino Timbol is set aside, and respondent Judge, or his
successor, is hereby ordered to proceed with the hearing on the
merits; 2) but the Orders dated January 30, 1971 and February
23, 1971 dismissing the Complaint in Civil Case No. 80803
against respondent Rodolfo Salazar are hereby upheld.’’

As discussed by Justice Herrera in his Treatise on Criminal


Procedure:

The Revised Rules on Criminal Procedure 2000 is a


virtual return to the 1940 Rules of Court which deemed as
instituted with the criminal action only the civil liability arising
from the offense charged. The civil liability is deemed instituted
— not merely “impliedly” instituted with the institution of the
criminal action. The amendment modified the recommendation
of the Committee on the Revision of the Rules of Court to deem
as impliedly instituted only the civil liability of the accused from
all sources of obligation arising from the same act or omission.
The purpose of the Committee was to limit the civil liability to be
instituted with the criminal action to that of the accused and not
the employer. The court, however, went further by limiting the
civil action that is deemed instituted with the criminal only to
the civil liability arising from the offense charged. ALL decisions
to the contrary are no longer controlling. The independent civil
actions under Articles 32, 33, 34 and 2176 are no longer deemed
or impliedly instituted with the criminal action or considered as
waived even if there is no reservation. The reservation applies

39
Art. 1162 OBLIGATIONS

only to the civil liability arising from the offense charged. The
employer may no longer be held civilly liable for quasi-delict in
the criminal action as ruled in Maniago (infra.); San Ildefonso
Lines (infra.) and the pro hac vice decision in Rafael Reyes
Trucking Corporation (infra.), and all other similar cases, since
quasi delict is not deemed instituted with the criminal. If at
all, the only civil liability of the employer in the criminal action
would be his subsidiary liability under the Revised Penal Code.
The rule has also done away with third-party complaints and
counterclaims in criminal actions. These claims must have to be
ventilated in a separate civil action.’’
The Revised Rules of Criminal Procedure 2000 “is similar
to the original rule in Rule 107 of the Rules of Court.’’

“Rule 107 contemplates a case where the offended party


desires to press his right to demand indemnity from the accused
in the criminal case which he may assert either in the same
criminal case or in a separate action. Under this rule, a waiver
from failure to reserve does not include a cause of action not
arising from civil liability involved in the criminal case but from
culpa contractual, such as a civil case is based on alleged culpa
contractual incurred by the Philippine Air Lines, Inc. because of
its failure to carry safely the deceased passenger to his place of
destination. The criminal case involves the civil liability of the
accused, who bear no relation whatsoever with said entity and
are complete strangers to it. The accused are complete strangers
to the respondent company. The latter is not in any way
involved therein. Plaintiff is concerned with the civil liability of
the latter, regardless of the civil liability of the accused in the
criminal case. The failure, therefore, on the part of the plaintiff
to reserve her right to institute the civil action in the criminal
case cannot in any way be deemed as a waiver on her part of the
right to institute a separate civil action against the respondent
company based on its contractual liability, or on culpa aquiliana
under Articles 1902 to 1910 to of the Civil Code. The two actions
are separate and distinct and should not be confused one with
the other.’’ (Parker vs. Panlilio, 91 Phil. 1 [1952])

“The rule has abandoned Maniago vs. Court of Appeals,


253 SCRA 174 and San Ildefonso Lines vs. Court of Appeals,
G.R. No. 119771, April 24, 1998, 289 SCRA 568, which deemed
the employer’s liability on quasi delict as instituted with the
criminal action in the absence of a reservation. The present
rule virtually adopted the ruling in Elcano vs. Hill, 77 SCRA
98 (1977), where it was expressly held that the extinction of the

40
GENERAL PROVISIONS Art. 1162

civil liability referred to in par. (c), Sec. 2 of Rule 111, refers ex-
clusively to civil liability arising from crime; whereas, the civil
liability for the same act considered as a quasi-delict only and
not as a crime is not extinguished even by a declaration in the
criminal case that the criminal act charged has not happened or
has not been committed by the accused. Both actions may pro-
ceed separately; the only limitation is the prohibition to recover
damages twice based on the same act or omission.’’

Finally, in his Treatise on Criminal Procedure, Justice Herrera


discussed the effect of death on the civil liability of the accused
during the pendency of the criminal action as follows:

Death of Accused on Appeal


“The death of the accused after arraignment and during
the pendency of the criminal action shall extinguish the civil
liability arising from the delict.
The original proposal of the Committee was to require
the criminal court to proceed with the determination of the civil
liability that is deemed impliedly instituted with the criminal
action other than the civil liability arising from the crime to
modify the ruling in Bayotas vs. Court of Appeals, which then
held that since death extinguished the civil liability of the
accused and the corresponding civil liability arising from a
crime, the offended party should file a separate civil action to
recover civil liability arising from other sources of civil liability.
The ruling was then criticized. Since the civil liability arising
from other sources were deemed impliedly instituted with the
criminal action unless there is a waiver, reservation or separate
civil, then the same should be resolved in the same proceedings
despite the death of the accused. Since, however, The Revised
Rules on Criminal Procedure limited the civil liability to what
is deemed impliedly instituted with the criminal action to civil
liability arising from crime, there would have been no need for
the amendment as death of the accused would only extinguish
such civil liability. The rule was, however, retained by the court
to apply to the civil actions under Section 3 of the Rule. The
rule would, however, apply only if any of the civil actions under
Section 3 is consolidated with the criminal action, otherwise,
since the actions under Section 3 are purely civil actions, the
effects of death of a party are to be governed by the Rules on
Civil Procedure.’’ (Rule 3, Secs. 16, 17 and 20, 1997 RCP)

41
OBLIGATIONS

CHAPTER 2
NATURE AND EFFECT OF OBLIGATIONS

Art. 1163. Every person obliged to give something is also


obliged to take care of it with the proper diligence of a good
father of a family, unless the law or the stipulation of the
parties requires another standard of care.1
Art. 1164. The creditor has a right to the fruits of the
thing from the time the obligation to deliver it arises.
However, he shall acquire no real right over it until the same
has been delivered to him.2
Art. 1165. When what is to be delivered is a determinate
thing, the creditor, in addition, to the right granted him by
Article 1170, may compel the debtor to make the delivery.
If the thing is indeterminate or generic, he may ask that
the obligation be complied with at the expense of the debtor.
If the obligor delays, or has promised to deliver the
same thing to two or more persons who do not have the same
interest he shall be responsible for any fortuitous event until
he has effected the delivery.3
Art. 1166. The obligation to give a determinate thing
includes that of delivering all its accessions and accessories,
even though they may not have been mentioned.4

1
Art. 1094, Spanish Civil Code, in modified form.
2
Art. 1095, Spanish Civil Code.
3
Art. 1096, Spanish Civil Code, in modified form.
4
Art. 1097, par. 1, Civil Code.

42
NATURE AND EFFECT OF OBLIGATIONS Arts. 1163-1166

Obligations To Give. — An obligation to give a thing may


be either determinate or generic. It is determinate when the object
is particularly designated or physically segregated from all others
of the same class.5 It is generic or indeterminate when the object
is designated merely by its class or genus without any particular
designation or physical segregation from all others of the same class.
In other words, in the first the object is a concrete, particularized
thing, indicated by its own individuality, while in the second the
object is one whose determination is confined to that of its nature —
to the genus to which it pertains, such as a horse or a chair.6 Thus,
when the obligor or debtor binds himself to deliver to the obligee or
creditor the white horse which won the Senior Grand Derby in 1979,
the object of the obligation is said to be determinate. Since it has
already been individually determined, the obligor cannot fulfill his
obligation by delivering another horse as a substitute.7 On the other
hand, when the obligor or debtor binds himself to deliver “a horse” or
“ten horses,’’ the object of the obligation is said to be indeterminate
or generic. Since the horse or horses have not yet been particularly
designated or physically segregated from all others of the same
class, the obligor can fulfill his obligation by delivering any horse or
horses which are neither of superior nor inferior quality.8
Idem; Nature of right of creditor. — In obligations to give,
the obligee or creditor has a right to the thing which is the object
of the obligation as well as the fruits thereof from the time the
obligation to deliver it arises. This is evident from the provision of
Art. 1164 of the Code. The question, however, is — when does the
obligation to deliver the thing and the fruits arise? The answer to
this question depends upon the nature of the obligation itself. In
case of obligations arising from the law, quasi-contracts, criminal
offenses, and quasi-delicts, the obligation to deliver arises from the
time designated by the provisions of the Civil Code or of special
laws creating or regulating them. In case of obligations arising from
contracts, the obligation to deliver arises, as a general rule, from the
moment of the perfection of the contract. The basis for the latter rule
can be found in Art. 1537 of the Code which states that the vendor is
bound to deliver the thing sold and its accessions and accessories in

5
Art. 1460, par. 1, Civil Code.
6
Soriano vs. De Leon, 48 Off. Gaz. 2245; 8 Manresa, 5th Ed., Bk. 1, p. 102.
7
Art. 1244, Civil Code.
8
Art. 1246, Civil Code.

43
Arts. 1163-1166 OBLIGATIONS

the condition in which they were upon the perfection of the contract.
According to Manresa, the principle declared in Art. 1164 is merely
an extension of that declared in Art. 1537 considering the fact that
an obligation arising from a contract of sale is the prototype of all
contractual obligations.9 Generalizing the provision of the latter
article, we can, therefore, say that the obligor or debtor is bound to
deliver the thing which is the object of the obligation as well as the
fruits thereof from the moment the contract is perfected. In other
words, with respect to the thing itself, the obligation to deliver arises
from the time of perfection of the contract; with respect to the fruits,
the obligation to deliver also arises from the time of the perfection
of the contract. It must be noted, however, that these rules are not
absolute in character. In case there is a contrary stipulation of the
parties with respect to the time when the thing or fruits shall be
delivered, such stipulation shall govern. Hence, if the obligation
is subject to a suspensive condition, the obligation to deliver the
thing as well as the fruits shall arise only from the moment of the
fulfillment of the condition, and if it is subject to a suspensive term
or period, the obligation to deliver arises only upon the expiration of
the designated term or period.
If the creditor has a right to the thing as well as to the fruits
thereof from the time the obligation to deliver it arises, what is the
nature of such right? Before answering this question, we must first
know the meaning of personal and real right. According to an eminent
Spanish commentator, a personal right is “a right pertaining to a
person to demand from another, as a definite passive subject, the
fulfillment of a prestation to give, to do or not to do.’’ It is a jus ad
rem, a right enforceable only against a definite person or group of
persons, such as the right of a creditor to demand from the debtor
the delivery of the object of the obligation after the perfection of the
contract. A real right, on the other hand, is a “right pertaining to a
person over a specific thing, without a passive subject individually
determined against whom such right may be personally enforced.’’10
It is a jus in re, a right enforceable against the whole world, such
as the right of ownership, possession, usufruct or easement. It is
clear from these definitions that before delivery, the creditor, in
obligations to give, has merely a personal right against the debtor

9
8 Manresa, 5th Ed., Bk. 1, pp. 97-98.
10
3 Sanchez 6-8.

44
NATURE AND EFFECT OF OBLIGATIONS Arts. 1163-1166

— a right to ask for delivery of the thing and the fruits thereof. Once
the thing and the fruits are delivered, then he acquires a real right
over them, a right which is enforceable against the whole world.
This explains why according to Art. 1164 of the Code, although the
creditor acquires a right to the fruits of the thing from the time the
obligation to deliver it arises, he does not acquire any real right over
it until the same has been delivered to him. Thus, if A and B enter
into a written agreement whereby the former promises to deliver a
parcel of land to the latter for a price of P100,000, the obligations
to deliver the land on the part of the former and the purchase price
of P100,000 on the part of the latter arise only from the moment of
the perfection of the contract. As far as B is concerned, although
he is entitled to all of the fruits of the land from the moment of the
perfection of the contract, at most, he has only a personal right to
compel A to deliver the land and such fruits in case he, himself, is
also ready to comply with what is incumbent upon him.11 In other
words, he does not acquire a real right or right of ownership over the
land and over the fruits thereof, until the same have been delivered
to him. That is why, according to Art. 1477 of the Civil Code, the
ownership of the thing sold shall be transferred to the vendee only
upon the actual or constructive delivery thereof.
Idem; Rights of creditor in determinate obligations. — If
the obligation to give is determinate, the rights of the creditor are as
follows:
(1) To compel specific performance. This right is expressly
recognized by the first paragraph of Art. 1165 of the Code which
states that the creditor may compel the debtor to make the delivery.
It is complemented by the first paragraph of Art. 1244 which states
that the debtor of a thing cannot compel the creditor to receive a
different one, although the latter may be of the same value as, or more
valuable than that which is due. Consequently, if the debtor does not
comply with his obligation at the time when the obligation to deliver
arises or if he insists on delivering a different one, the remedy of
the creditor is to file an action against the debtor to compel specific
performance. In such case, the debtor cannot even plead pecuniary
impossibility of performance. It is an undisputed principle of equity

11
Cruzado vs. Bustos and Escaler, 34 Phil. 17; see also Fidelity and Deposit Co.
vs. Wilson, 8 Phil. 51; Garchitorena vs. Almeda, CA, 48 Off. Gaz. 3432; Lundberg vs.
Gancayco, CA, 50 Off. Gaz. 172.

45
Arts. 1163-1166 OBLIGATIONS

jurisprudence, and this is also true in this jurisdiction, that mere


pecuniary inability to fulfill an engagement does not discharge the
obligation, nor does it constitute any defense to a decree for specific
performance.12
(2) To recover damages for breach of the obligation. Besides
the right to compel specific performance, the creditor has also the
right to recover damages from the debtor in case of breach of the
obligation through delay, fraud, negligence or contravention of the
tenor thereof.13
It will be observed that the above remedies are not incompatible
with each other. Hence, the creditor may file an action against the
debtor for specific performance under the first paragraph of Art.
1165 and, at the same time, avail of the action for damages against
the said debtor under Art. 1170.14
Idem; Rights of creditor in generic obligations. — If the
obligation to give is generic, the rights of the creditor are as follows:
(1) To ask for performance of the obligation. Whether the object
of an obligation to give is determinate or generic, it is undeniable that
the creditor has the right to ask for the performance of the obligation.
The only difference is that in determinate obligations to give, the
creditor can compel specific performance, while in indeterminate or
generic obligations to give, he can only ask for the delivery of a thing
or object belonging to the class or genus stipulated which must be
neither of superior nor inferior quality.15 Thus, if the debtor binds
himself to deliver ten horses to the creditor, the former must comply
with the obligation by delivering to the latter any ten horses which
must be neither of the highest nor poorest quality. The creditor in
such case cannot compel specific performance by demanding the
delivery of ten horses of superior quality.
(2) To ask that the obligation be complied with at the
expense of the debtor. If the debtor refuses or is unable to comply
with his obligation, the creditor can even ask that the obligation be
complied with at the expense of such debtor.16 Thus, if the debtor

12
Gutierrez Repide vs. Afzelius, 39 Phil. 190.
13
Arts. 1165, par. 1, and 1170, Civil Code.
14
8 Manresa, 5th Ed., Bk. 1, p. 103.
15
Art. 1246, Civil Code.
16
Art. 1165, par. 2, Civil Code.

46
NATURE AND EFFECT OF OBLIGATIONS Arts. 1163-1166

had promised to deliver ten horses to the creditor at a specific date,


and upon the arrival of the stipulated date he was unable to comply
with the obligation after demand was made, the creditor can then
order the delivery of ten horses which must be neither of superior
nor inferior quality from any third person and all expenses incurred
shall be charged against him.
(3) To recover damages for breach of the obligation. In case
of failure of the debtor to comply with his obligation, or in case of
breach by reason of fraud, negligence, delay or contravention of the
tenor of the obligation, the creditor can demand for indemnification
for damages. Although Art. 1165 is silent with respect to the
applicability of Art. 1170 to indeterminate or generic obligations,
the scope of the article is broad enough to apply even to such class of
obligations.17
Idem; Obligations of debtor in determinate obligations.
— If the obligation to give is determinate, the obligations of the
debtor are as follows:
(1) To perform the obligation specifically. In obligations to
give a determinate thing, the obligor or debtor binds himself to
deliver to the obligee or creditor a thing or object which is particularly
designated or physically segregated from all others of the same class.
Hence, he cannot comply with his obligation by delivering a thing
which is different from that which is designated although belonging
to the same class or genus. This is so even though the thing delivered
may be of superior quality.18 Thus, if he binds himself to deliver to
the creditor a certain 80 Toyota Corona specifically described in the
contract, he must deliver the specified car and no other.
(2) To take care of the thing with the proper diligence of a
good father of a family. This accessory obligation which is expressly
imposed upon the debtor by the provision of Art. 1163 of the Code
and which is applicable only to determinate obligations and not to
generic ones,19 is established merely for the purpose of insuring the
efficacy and performance of the obligation. As a general rule, the
standard of care which must be exercised for the preservation of the

17
8 Manresa, 5th Ed., Bk. 1, p. 104.
18
Art. 1244, Civil Code.
19
2 De Diego 65.

47
Arts. 1163-1166 OBLIGATIONS

thing must be the diligence of a good father of a family.20 This rule,


however, is subject to two exceptions. The first is if the law requires
another standard of care. Thus, Art. 1733 of the Civil Code provides
that common carriers, from the nature of their business and for
reasons of public policy, are bound to observe extraordinary diligence
in the vigilance over the goods, and for the safety of the passengers
transported by them, according to all of the circumstances of each
case. The second is if the parties stipulate another standard of care.
Thus, the parties may agree that the standard to be followed by
the debtor in taking care of the thing pending its delivery or in the
delivery itself shall be either extraordinary care or slight care.
(3) To deliver all accessions and accessories of the thing, even
though they may not have been mentioned. This accessory obligation
is expressly imposed upon the debtor by the provision of Art. 1166
of the Code. The term “accessions’’ signifies all of those things which
are produced by the thing which is the object of the obligation as well
as all of those which are naturally or artificially attached thereto.21
Consequently, it comprehends all of the different kinds of accessions
which are defined and regulated by the provisions of Art. 441 to Art.
475 of the Civil Code, such as accesión discreta (natural, industrial
and civil fruits) as well as accesión industrial (building, planting
and sowing), accesión natural (alluvion, avulsion, abandoned
river beds, and islands formed in non-navigable or non-floatable
rivers) and accession with respect to movable property (adjunction
or conjunction, confusion or commixtion, and specification).
“Accessories,’’ on the other hand, must be understood in its current
and popular sense. It signifies all of those things which have for
their object the embellishment, use or preservation of another thing
which is more important and to which they are not incorporated or
attached. In other words, it includes all of those things which are
necessary or convenient for the perfection of another thing, such as
the equipment of a factory, the spare parts and tools of a machine,
the key of a house, and others of a similar nature.22
It must be noted that under the old law, “accessions” were not
included, in view of which, according to the Supreme Court of Spain,

20
Art. 1163, Civil Code; see Bishop of Jaro vs. De la Peña, 26 Phil. 144.
21
Art. 440, Civil Code.
22
8 Manresa, 5th Ed., Bk. 1, pp. 109-110.

48
NATURE AND EFFECT OF OBLIGATIONS Arts. 1163-1166

if a piece of land is sold without mentioning the house thereon, the


sale does not include the house because it is not an “accessory,” but
an “accession.” However, the Code Commission, considering that
when a piece of land is sold, ordinarily all the improvements thereon
are intended as included in the sale, inserted the word “accessions.”23
In the case of Pormellosa vs. Land Tenure Administration,
1 SCRA 375 (1961), it was ruled that a sale of the house and
improvements upon a land is not sufficient to convey title or any
right to the land, thus enunciating the rule that an obligation to
deliver the accessions or accessories of a thing does not include the
thing unless otherwise stipulated.
(4) To be liable for damages in case of breach of the obligation
by reason of delay, fraud, negligence or contravention of the tenor
thereof. This obligation is expressly imposed upon the debtor by
the provision of Art. 1170 of the Code. It must be noted, however,
that this liability does not arise if the breach is due to a fortuitous
event.24 In other words, such liability extends only to a breach which
is voluntary in character, and not to one which is involuntary. Thus,
if the debtor binds himself to deliver to the creditor a specified
automobile by the end of November, 1980, and said automobile was
destroyed when the garage in which it was kept was gutted by a
fire of accidental origin before the date of delivery, the obligation is
extinguished. There can, therefore, be no liability of the debtor for
breach of the obligation.
It must also be noted that under the third paragraph of Art.
1165, it is provided that if the obligor delays, or has promised to
deliver the same thing to two or more persons who do not have the
same interest, he shall be responsible for any fortuitous event until
he had effected the delivery. It is evident that this rule is applicable
only to obligations to give a determinate thing. This is so because
only a determinate thing can be destroyed by a fortuitous event. An
indeterminate or generic thing, on the other hand, can never perish.
It is also evident that the two cases mentioned in the provision are
exceptions expressly specified by law to the rule that there can be
no liability in case of fortuitous events. In both cases, when the
determinate thing which is the object of the obligation is lost or

23
Capistrano, Civil Code, 1950 Ed., Vol. 3, p. 2.
24
Art. 1174, Civil Code.

49
Arts. 1163-1166 OBLIGATIONS

destroyed before the date of the delivery, the obligor or debtor shall
be liable to the creditor.
Idem; Obligations of debtor in generic obligations. — If
the obligation to give is innominate or generic, the obligations of the
debtor are as follows:
(1) To deliver a thing which is neither of superior nor inferior
quality.25 Consequently, the creditor cannot demand a thing of
superior quality; neither can the debtor deliver a thing of inferior
quality. However, in the determination of the quality of the thing
which is to be delivered, the purpose of the obligation and other
circumstances shall have to be taken into consideration.26
(2) To be liable for damages in case of breach of the obligation
by reason of delay, fraud, negligence or contravention of the tenor
thereof.27 This liability includes the obligation to reimburse all
expenses incurred by the creditor in those cases where the latter
avails himself of the right to ask a third person to perform the
obligation at the expense of the debtor.28 It must be noted, however,
that the doctrine enunciated in Art. 1174 of the Code, by virtue of
which the obligation is extinguished in case the object thereof is lost
or destroyed through a fortuitous event, is not applicable to this
type of obligation. This is clearly deducible from the provision of Art.
1263 of the Civil Code which states that in an obligation to deliver
a generic thing, the loss or destruction of anything of the same
class or genus as that which constitutes the object thereof shall not
extinguish the obligation. This precept is based on the maxim that
the genus of a thing can never perish (genus nunquam peruit). Thus,
if a certain company agreed to pay a pension to any of its employees
who may have completed 20 years of service and who may have
attained the age of 50, the fact that heavy losses were incurred by
said company during the war does not exempt it from liability on the
ground that such obligation to pay is generic and, consequently, is
not extinguished.29 Similarly, if a certain person promised to deliver

25
Art. 1246, Civil Code.
26
Ibid.
27
Art. 1170, Civil Code.
28
Art. 1165, par. 2, Civil Code.
29
Philippine Long Distance Co. vs. Jeturian, 97 Phil. 78; see also Reyes vs. Cal-
tex, 47 Off. Gaz. 1193.

50
NATURE AND EFFECT OF OBLIGATIONS Arts. 1163-1166

5,700 cavans of rice to another within a stipulated period, but due to


Huk depredations in Central Luzon he was unable to comply fully
with the terms of the contract, he can still be held liable.30

Problem — A bound himself to deliver to B a 21-inch


1983 model TV set, and the 13 cubic feet White Westinghouse
refrigerator, with Motor No. WERT-385, which B saw in A’s
store, and to repair B’s piano. A did none of these things.
May the court compel A to deliver the TV set and the
refrigerator and repair the piano? Why? If not, what relief may
the court grant B? Why? (1983)
Answer — B cannot compel A to deliver the 21-inch
1983 model TV set. The reason is obvious. The obligation is a
generic obligation because the object is designated merely by its
class or genus without any particular designation or physical
segregation from others of the same class. An action for specific
performance is, therefore, legally and physically impossible.
Consequently, the remedy of B is to ask for the delivery of a 21-
inch 1983 model TV set which must be neither of superior nor
inferior quality. This is explicitly recognized by the New Civil
Code. As a matter of fact, he can even ask that the obligation be
complied with at the expense of A. Additionally, he can ask for
damages. These remedies are also explicitly recognized by the
New Civil Code.
In the case of the refrigerator, the situation is different. The
court may compel A to comply with the obligation specifically.
The reason is obvious. The obligation is determinate. Under
the New Civil Code, if the debtor or obligor refuses or is unable
to comply with his obligation, assuming that the obligation is
a determinate obligation to give, the remedy of the creditor or
obligee is to bring an action against the debtor or obligor for
specific performance. Additionally, he can recover damages.
On the other hand, the court cannot compel A to repair
the piano. The reason is also obvious. The obligation of A is an
obligation to do. In this type of obligation, the law recognizes
the individual’s freedom to choose between doing that which
he has promised to do and not doing it. It falls within what
commentators call a personal act, of which courts may not
compel compliance as it is an act of violence to do so. The remedy,
therefore, of B is to have the obligation executed at the expense

30
Soriano vs. De Leon, 48 Off. Gaz. 2245.

51
Art. 1167 OBLIGATIONS

of A. Additionally, he can recover damages from A. (Note: The


above answer is based on Arts. 1165, par. 1, 1167 and 1170, New
Civil Code.)

Art. 1167. If a person obliged to do something fails to do


it, the same shall be executed at his cost.
The 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.31

Obligations To Do; Effects of Breach. — In obligation to do


(positive personal obligations), if the obligor fails to do that which
he has obligated himself to do, the obligee can have the obligation
performed or executed at the expense of the former,32 and, at the
same time, demand for damages by reason of the breach.33
Unlike obligations to give, in obligations to do the obligee
does not possess the power to compel the obligor to comply with
his obligation. In this type of obligation the law recognizes the
individual’s freedom or liberty to choose between doing that which
he has promised to do and not doing it. It falls within what Spanish
commentators have called a personal act (acto personalisimo), of
which courts may not compel compliance as it is considered an act of
violence to do so.34 Consequently, since compliance or fulfillment can
only be voluntary, the Code in the first paragraph of Art. 1167 has
granted a remedy to the obligee to have the obligation performed or
executed at the expense of the obligor, a remedy which, although
irregular, is most analogous to fulfillment.35 Thus, if A has an
obligation to construct a garage for B for P5,000 and he fails or
refuses to construct it within the period specified in the contract,
B has a right to ask another contractor to perform the undertaking
even for a higher price. In such case, he can recover the difference
from A.
It must be observed, however, that the right of the obligee to
have the prestation executed at the expense of the obligor cannot be

31
Art. 1098, Spanish Civil Code.
32
Art. 1167, par. 2, Civil Code.
33
Art. 1170, Civil Code.
34
Woodhouse vs. Halili, 93 Phil. 526, quoting 19 Scaevola 428, 431-432.
35
8 Manresa, 5th Ed., Bk. 2, pp. 116-117.

52
NATURE AND EFFECT OF OBLIGATIONS Art. 1167

availed of when such prestation consists of an act where the personal


and special qualification of the obligor is the principal motive for
the establishment of the obligation, as for instance, the talent and
prestige of an artist. In such case, there is no other remedy of the
obligee except to proceed against the obligor for damages under Art.
1170 of the Code.36
On the other hand, if there has been a performance of the
obligation, but in contravention of the tenor thereof, the following
rights are available to the obligee: (1) To have the obligation
performed or executed at the expense of the obligor;37 (2) to ask that
what has been poorly done be undone;38 and (3) to recover damages
because of breach of the obligation.39

Problem — “O,’’ lot owner, contracted with “B,” builder,


to build a multi-storey building designed by “A,’’ architect. “A”
was paid a fee to supervise the construction and execution of his
design. When completed, “O” accepted the work and occupied the
building, but within one year, it collapsed in an earthquake that
destroyed only the building and not the surrounding buildings.
Construction was faulty. The building cost P3,000,000.00, but
reconstruction cost would reach P10,000,000.00.
Question No. 1. — What are the rights of “O’’ against “A’’
and “B’’? Explain briefly. (1981 Bar Problem)
Answer — “O’’ can hold “A’’ and “B’’ solidarily liable for
damages. This is clear from the Civil Code, which declares
that the contractor is liable for damages if within fifteen years
from the completion of the edifice or structure, the same should
collapse on account of defects in the construction. lf the engineer
or architect who drew up the plans and specifications of the
building supervises the construction, he shall be solidarily liable
with the contractor. Acceptance of the building, after completion,
does not imply waiver of the cause of action. However, the action
must be brought within ten years following the collapse of the
building.
(Note: The above answer is based on Art. 1723 of the Civil
Code.)

36
Ibid.
37
Art. 1167, par. 1, Civil Code.
38
Art. 1167, par. 2, Civil Code.
39
Art. 1170, Civil Code.

53
Art. 1168 OBLIGATIONS

Question No. 2 — Could “O’’ demand reconstruction of the


building? On what ground? Amplify. (1981 Bar Problem)
Answer — “O’’ can demand reconstruction of the building.
The obligation of both “A” and “B” is an obligation to do. Conse-
quently, Art. 1167 of the Civil Code is applicable. According to
this article, if a person obliged to do something does it in contra-
vention of the tenor of the obligation, the same shall be executed
at his cost. It is obvious that the builder “B” and the architect
“A’’ performed their jobs in contravention of the tenor of the obli-
gation. As a matter of fact, had the building not collapsed, under
the same article, it may even be decreed that what has been
poorly done be undone. Consequently, “C’’ can now demand for
the reconstruction of the building by “A’’ and “B’’ or by another
at their cost.
(Note: The above answer is based on Art. 1167 of the Civil
Code and on Manresa, vol. 8, pp. 116-117.)
Problem — X delivered a play station to Y for repair, Y did
not finish the job. Finally, despite repeated reminders of X for Y
to finish the job, Y returned the play station with his job undone
and where some parts were missing. Z then repaired the play
station. Z charged X the amount of P500.00 for the repair and
the amount of P300.00 for the missing parts. The lower court
ruled that Y should pay only P300.00.
Question — Is Y liable also for the cost of the repair or the
amount of P300.00?
Answer — Yes. Since Y failed to repair the play station,
with some missing parts, Y contravened the tenor of his
obligation. Y is liable for such contravention under Art. 1167 of
the Civil Code, considering that the obligation of Y was to repair
the play station. He is likewise liable under Art. 1170 of the
Code for the missing parts considering that Y failed to return
the play station in the same condition as when it was received.
(Tanguilig vs. Court of Appeals, 266 SCRA 78 [1997].)

Art. 1168. When the obligation consists in not doing, and


the obligor does what has been forbidden him, it shall also be
undone at his expense.40
Obligations Not To Do; Effects of Breach. — In obligations
not to do (negative personal obligations), the object of the obligation

40
Art. 1099, Spanish Civil Code, in modified form.

54
NATURE AND EFFECT OF OBLIGATIONS Art. 1169

is fulfilled or realized so long as that which is forbidden is not done


by the obligor. If the obligor does what has been forbidden him, two
remedies are available to the obligee — to have it undone at the
expense of the obligor in accordance with Art. 1168 and to ask for
damages in accordance with Art. 1170. Thus, if the obligor obligated
himself not to construct his house beyond a certain height in order not
to obstruct the view from the house of the obligee, and subsequently,
he adds another story beyond the stipulated height, the obligee has
the right to demand for the demolition of the additional storey at the
expense of the obligor. In addition, he can also demand indemnity
for damages.
The first remedy is logical because it is the only way by which the
end or object of the obligation may be effectively realized since what
is demanded is not the performance of an act but an omission. With
respect to the second remedy, it must be noted that in obligations
of this type (not to do), delay or mora is not possible unlike positive
obligations. This is so because in negative obligations, the obligation
is either fulfilled or not fulfilled.41
There are, however, certain cases where the remedy provided
for in Art. 1168 is not available. In the first place, there are those
cases where the effects of the act which is forbidden are definite in
character, in which case, even if it is possible for the obligee to ask
that the act be undone at the expense of the obligor, consequences
contrary to the object of the obligation will have been produced
which are permanent in character. In the second place, there are
those cases where it would be physically or legally impossible to
undo what has been done because of the very nature of the act itself,
or because of a provision of the law, or because of conflicting rights
of third persons. Hence, in these cases, the only remedy available
to the obligee would be to proceed against the obligor for damages
under Art. 1170 of the Code.42

Art. 1169. Those obliged to deliver or to do something


incur in delay from the time the obligee judicially or
extrajudicially demands from them the fulfillment of their
obligation.

41
8 Manresa, 5th Ed., Bk. 1, pp. 121-122.
42
Ibid., p. 123.

55
Arts. 1170-1173 OBLIGATIONS

However, the demand by the creditor shall not be neces-


sary in order that delay may exist:
(1) When the obligation or the law expressly so de-
clares; or
(2) When from the nature and the circumstances of the
obligation it appears that the designation of the time when
the thing is to be delivered or the service is to be rendered was
a controlling motive for the establishment of the contract; or
(3) When demand would be useless, as when the obligor
has rendered it beyond his power to perform.
In reciprocal obligations, neither party incurs in delay
if the other does not comply or is not ready to comply in a
proper manner with what is incumbent upon him. From the
moment one of the parties fulfills his obligation, delay by the
other begins.43
Art. 1170. Those who in the performance of their
obligations are guilty of fraud, negligence, or delay, and
those who in any manner contravene the tenor thereof, are
liable for damages.44
Art. 1171. Responsibility arising from fraud is demand-
able in all obligations. Any waiver of an action for future
fraud is void.45
Art. 1172. Responsibility arising from negligence in the
performance of every kind of obligation is also demandable,
but such liability may be regulated by the courts, according
to the circumstances.46
Art. 1173. The fault or negligence of the obligor consists
in the omission of that diligence which is required by the
nature of the obligation and corresponds with the circum-
stances of the persons, of the time and of the place. When
negligence shows bad faith, the provisions of Articles 1171
and 2201, paragraph 2, shall apply.

43
Art. 1100, Spanish Civil Code, in amended form.
44
Art. 1101, Spanish Civil Code.
45
Art. 1102, Spanish Civil Code, in modified form.
46
Art. 1103, Spanish Civil Code.

56
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

If the law or contract does not state the diligence which


is to be observed in the performance, that which is expected
of a good father of a family shall be required.47

Breach of Obligations. — In general, the breach of an ob-


ligation may be either voluntary or involuntary. It is voluntary if
the debtor or obligor in the performance of his obligation is guilty of
default (mora), or fraud (dolo), or negligence (culpa), or in any man-
ner contravenes the tenor thereof.48 It is involuntary if he is unable
to comply with his obligation because of an event which cannot be
foreseen, or which, though foreseen, was inevitable.49 In the first he
is liable for damages, in the second he is not.
Voluntary Breach Through Default or Mora. — The first
kind of voluntary breach of an obligation regulated by the Civil Code
is that which takes place by reason of default or mora. Default or
mora signifies the idea of delay in the fulfillment of an obligation
with respect to time.
There are three kinds of default or mora. They are:
(1) Mora solvendi or the delay of the obligor or debtor to
perform his obligation. This delay is called mora solvendi ex re when
the obligation is an obligation to give or mora solvendi ex persona
when the obligation is an obligation to do.
(2) Mora accipiendi or the delay of the obligee or creditor to
accept the delivery of the thing which is the object of the obligation.
(3) Compensatio morae or the delay of the parties or obligors
in reciprocal obligations.50
There are three requisites which should be present in order
that the obligor or debtor may be considered in default. They are:
(1) The obligation is demandable and already liquidated;
(2) The obligor or debtor delays performance; and

47
Art. 1104, Spanish Civil Code, in amended form.
48
Art. 1170, Civil Code.
49
Art. 1174, Civil Code.
50
8 Manresa, 5th Ed., Bk. 1, p. 125.

57
Arts. 1170-1173 OBLIGATIONS

(3) The creditor requires the performance judicially or extra-


judicially. (Aerospace Chemical Industries, Inc. vs. CA, 315 SCRA
94.)
In the case of Bricktown Devt. Corp. vs. Amor Tierra Devt.
Corp., 239 SCRA 126 (1994), the Court ruled that a grace period is
not an obligation of the debtor but a right. It must not be likened
to an obligation the non-payment of which under Art. 1169 would
generally still require judicial or extrajudicial demand before default
can arise. When unconditionally conferred, it is effective without
further need of demand either for the payment of the obligation or
for honoring the right.
Idem; Default in positive obligations. — In obligations
to give or to do (positive obligations), the obligor or debtor incurs
in delay from the time the obligee or creditor demands from him
the fulfillment of the obligation.51 This demand may be judicial or
extrajudicial. It is judicial if the creditor files a complaint against the
debtor for the fulfillment of the obligation; it is extrajudicial if the
creditor demands from the debtor the fulfillment of the obligation
either orally or in writing. Whether the demand is judicial or
extrajudicial, if the obligor or debtor fails to fulfill or perform his
obligation, he is in mora solvendi, and therefore, liable for damages.
The significance of this rule may be illustrated by the following
problem:
On October 1, 1976, A borrowed P10,000 from B evidenced by
a promissory note whereby he undertook to pay the indebtedness on
October 1, 1978. On October 1, 1980, B brought an action against
A for the payment of the obligation as well as legal interest from
the date of maturity by way of damages. There is no evidence that
any demand for payment was ever made prior to the presentation of
the complaint. From what time shall the legal interest be computed
— shall it be computed from October 1, 1978, when the obligation
became due and demandable, or from October 1, 1980, when the
complaint was filed? According to the decided cases, the interest
shall be computed from October 1, 1980, when the complaint was
filed, because it was only then that the debtor had incurred in delay.52

51
Art. 1169, par. 1, Civil Code.
52
Compania General de Tabacos vs. Araza, 7 Phil. 55; Veloso vs. Fontanosa, 13
Phil. 79; Bayala vs. Silang Traffic Co., 73 Phil. 557; Adiarte vs. Court of Appeals, 49
Off. Gaz. 1421.

58
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

The result would be different had the creditor made an extrajudicial


demand upon the debtor on October 1, 1978, when the obligation
became due and demandable, or soon thereafter. In such case, the
legal interest would have to be computed from such date.
Idem; id. — When demand is not necessary. — However,
demand by the creditor is not necessary in order that delay may
exist in the following cases:
(1) When the obligation or the law expressly so declares.53
Attention must be called to the fact that what the law means is
that the obligation or the law itself must expressly declare that
the demand is not necessary in order that the debtor shall incur in
delay. This may be illustrated by the following examples:
Let us assume that D borrowed P20,000 from C on Dec. 5, 1976.
He executed a promissory note promising to pay the indebtedness on
Dec. 5, 1978. Upon the arrival of the designated date for payment,
is it necessary that C shall make a demand upon D for payment
in order that the latter shall incur in delay? Evidently, such a
demand is necessary. In order that the exception stated in No. 1 of
the second paragraph of Art. 1169 shall apply, it is indispensable
that the obligation itself must expressly declare that “demand is not
necessary in order that D shall incur in delay” or that “D shall incur
in delay if he does not pay the obligation upon the arrival of the
designated date for payment.’’54
Let us, however, assume that A and B entered into a contract
of partnership for the purpose of buying and selling textbooks, with
the former as capitalist partner and the latter as industrial partner.
It was agreed that A shall contribute P20,000 to the common fund
on January 5, 1980. Upon the arrival of the designated date for
payment, is demand necessary in order that A shall incur in delay?
In this case, such a demand is not necessary in order that A shall
incur in delay. According to Art. 1788 of the Civil Code, where one
of the partners who has undertaken to contribute a sum of money
to the common fund at a specified date fails to do so, he becomes
a debtor of the partnership not only for the amount which he has

Art. 1169, No. 1, Civil Code.


53

Bayala vs. Silang Traffic Co., 73 Phil. 557; Adiarte vs. Court of Appeals, 49 Off.
54

Gaz., 1421; 8 Manresa, 5th Ed., Bk. 1, p. 127.

59
Arts. 1170-1173 OBLIGATIONS

promised to contribute but also for interest and damages from the
time he should have complied with his obligation.
(2) When from the nature and the circumstances of the
obligation it appears that the designation of the time when the
thing is to be delivered or the service is to be rendered was a
controlling motive for the establishment of the contract.55 The basis
of this exception is the fact that the designation of the time is of
such fundamental importance in the fulfillment of the obligation
that it would be logical to assume that the intention of the parties
was to make fulfillment of the obligation upon the arrival of such
designated time an essential part of the contract. In other words, the
time element for the fulfillment of the obligation is of the essence of
the contract. Therefore, it must be established that the designation
of the time when the obligation shall be fulfilled was a controlling
motive for the execution of the contract. This can be inferred from
the nature and circumstances of the obligation.56 Thus, where in
the contract of sale entered into between plaintiff and defendant
there is a stipulation that the machinery which is the object of the
sale was already on the way from the United States to Manila, but
it is established that it was actually shipped several days after
the execution of the contract and, as a consequence, plaintiff was
unable to deliver it within a reasonably short time to the defendant,
it was held that the plaintiff has already incurred in delay since,
undoubtedly, the representation that such machinery was already
on the way was one of the determining elements of the contract.
Consequently, the subsequent refusal of the defendant to accept the
delivery is justified.57
(3) When demand would be useless, as when the obligor has
rendered it beyond his power to perform.58 Thus, if A, for instance,
has promised to deliver his automobile to B on the 15th day of
November, 1980, but a few days before such date, the automobile
was completely destroyed through his fault, and the fact of its
destruction was known to B, demand by the latter would be useless.

55
Art. 1169, par. 2, No. 2, Civil Code.
56
8 Manresa, 5th Ed., Bk. 1, pp. 127-128.
57
Soler vs. Chesley, 43 Phil. 529. To the same effect: Hanlon vs. Hausserman and
Beam, 40 Phil. 795.
58
Art. 1169, par. 2, No. 3, Civil Code.

60
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

In such case, A will incur in delay without the need of any demand
from B.
Idem; Default in negative obligations. — The obligor can
not possibly incur in delay in negative obligations (not to do). Ac-
cording to Manresa, these obligations have a peculiarity of their own
which the law does not show but which is evident from their spe-
cial nature. Fulfillment and violation are possible, but not default or
mora. This peculiarity is what differentiates this class of obligations
from positive obligations (to give and to do).59
Idem; Default in reciprocal obligations. — Reciprocal obli-
gations are those which are created or established at the same time,
out of the same cause, and which result in mutual relationships of
creditor and debtor between the parties. These obligations are con-
ditional in the sense that fulfillment of an obligation by one party
depends upon the fulfillment of the obligation by the other. Thus, in
a contract of sale of an automobile for P54,000, the vendor is obliged
to deliver the automobile to the vendee, while the vendee is obliged
to pay the price of P54,000 to the vendor. It is clear that the vendor
will not deliver the automobile to the vendee unless the latter will
pay the price, while the vendee will not pay the price to the vendor
unless the latter will deliver the automobile. Hence, in reciprocal ob-
ligations, the general rule is that fulfillment by both parties should
be simultaneous or at the same time. There are, however, cases in
which different dates for performance or fulfillment of the recipro-
cal obligations may be fixed by the parties, in which case, the rule
stated in the first paragraph in Art. 1169 shall apply.60
The rule then is that in reciprocal obligations, one party incurs
in delay from the moment the other party fulfills his obligation,
while he himself does not comply or is not ready to comply in a
proper manner with what is incumbent upon him.61 If neither party
complies or is ready to comply with what is incumbent upon him,
the default of one compensates for the default of the other. In such
case, there can be no legal delay. These rules may be illlustrated
by the following example: A sold his automobile to B for P30,000.
They agreed that delivery and payment shall be made on the 15th

59
8 Manresa, 5th Ed., Bk. 1, p. 127.
60
Ibid., pp. 133-134.
61
Art. 1169, par. 3, Civil Code.

61
Arts. 1170-1173 OBLIGATIONS

of November, 1980. On that date, A was not ready to deliver the


automobile, neither was B ready to pay. In such case, neither party
has incurred in delay. If A, however, delivered or was ready to
deliver the automobile, but B did not pay or was not ready to pay,
then B is said to have incurred in delay.62
Idem; id. — Effect of default. — Once the obligor or debtor
has incurred in delay, he can be held liable by the obligee or creditor
for damages.63 This liability subsists even if the thing which consti-
tutes the object of the obligation may have been lost or destroyed
through a fortuitous event.64
If the obligation consists in the payment of a sum of money, and
the debtor incurs in delay, the indemnity for damages, there being
no stipulation to the contrary, shall be the payment of the interest
agreed upon, and in the absence of stipulation, the legal interest.65
Interest due shall earn legal interest from the time it is judicially
demanded, although the obligation may be silent upon this point.66
In Malayan Insurance Co., Inc. vs. IAC, 146 SCRA 45, the
Supreme Court reiterated the rule that a debtor who is in delay
(default) is liable for damages, in the form of interest.
The Supreme Court ruled in the case of Llorente, Jr. vs.
Sandiganbayan, 287 SCRA 382 (1998) that the provisions under
Title XV of the Civil Code on Damages govern in determining the
measure of recoverable damages. It is fundamental in the law on
Damages that one who is injured by a breach of a contract, or by a
wrongful act or omission, shall have a fair and just compensation
commensurate to the loss sustained as a consequence of the
defendant’s act.
Voluntary Breach Through Fraud or Dolo. — The second
kind of voluntary breach of an obligation regulated by the Civil Code
is that which takes place by reason of fraud or dolo. According to
Manresa, fraud or dolo consists in the conscious and intentional

62
For illustrative cases — see Martinez vs. Cavives, 25 Phil. 581; Causing vs.
Bencer, 37 Phil. 417.
63
Art. 1170, Civil Code.
64
Art. 1165, par. 3, Civil Code.
65
Art. 2209, Civil Code, see Reforma vs. Tomol, 139 SCRA 260, with regard to the
meaning of legal interest.
66
Art. 2212, Civil Code.

62
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

proposition to evade the normal fulfillment of an obligation.67


This type of fraud, which is present during the performance of
an obligation, must not be confused with the causal or incidental
fraud, which is present at the time of the birth of an obligation.
Under our legal system, fraud in general may be classified into civil
and criminal fraud. Civil fraud, in turn, may be classified into the
following: first, the fraud or dolo in the performance of an obligation;68
and second, the fraud or dolo in the constitution or establishment of
an obligation.69 The two may be distinguished from each other as
follows:
(1) The first is present only during the performance of a pre-
existing obligation, while the second is present only at the time of
the birth of the obligation.
(2) The first is employed for the purpose of evading the
normal fulfillment of an obligation, while the second is employed for
the purpose of securing the consent of the other party to enter into
the contract.
(3) The first results in the nonfulfillment or breach of the
obligation, while the second, if it is the reason for the other party
upon whom it is employed for entering into the contract, results in
the vitiation of his consent.
(4) The first gives rise to a right of the creditor or obligee to
recover damages from the debtor or obligor, while the second gives
rise to a right of the innocent party to ask for the annulment of the
contract if the fraud is causal or to recover damages if it is incidental.
Thus, if A engages to tow a launch belonging to B from Iloilo
to Manila, using a steamer for that purpose, and on the way the
launch is cast adrift and lost, Art. 1170, in relation to Art. 1171, is
applicable. B can hold A liable for damages.70 On the other hand, if
a certain applicant for an insurance substitutes another person for
himself during the medical examination, it is evident that there has
been causal fraud or dolo causante in securing the consent of the

67
8 Manresa, 5th Ed., Bk. 1, p. 168.
68
Arts. 1170, 1171, Civil Code.
69
Arts. 1338-1344, Civil Code.
70
Guzman vs. Behn, Meyer & Co., 9 Phil. 112.

63
Arts. 1170-1173 OBLIGATIONS

insurance company which will entitle the latter to ask for annulment
of the contract.71
Idem; Effect of fraud. — If there is a breach or non-fulfill-
ment of the obligation by reason of fraud or dolo on the part of the
obligor or debtor, he can be held liable for damages. As a ground
for damages, malice or dishonesty is implied. It cannot cover cas-
es of mistake and errors of judgment made in good faith. Fraud or
dolo is synonymous to bad faith. (O’leary Macondray & Co., 45 Phil.
812 [1924].) The liability is expressly recognized by the provisions
of Arts. 1170 and 1171 of the Code. It is also a rule that the liabil-
ity cannot be waived or renounced. It must be noted, however, that
what is prohibited is the waiver or renunciation which is made in
advance or in anticipation of the fraud, and not that which is made
after the fraud has already been committed. In other words, under
Art. 1171, what is prohibited is the renunciation of the action for a
fraud which has not yet been committed.72
Thus, waiver for future fraud is contrary to law and public
policy. As such, said waiver is void. But waiver for a past fraud is
valid since such waiver can be deemed an act of generosity. Further,
what is renounced is the effect of fraud, more particularly the right
of the party to indemnity.
What is the extent of damages which the obligee or creditor can
recover from the obligor or debtor in case of breach or nonfulfillment
of the obligation by reason of fraud or dolo? According to the law on
damages in the Civil Code, it shall comprehend all damages which
may be reasonably attributed to the breach or nonfulfillment of the
obligation, regardless of whether such consequences are natural or
unnatural, probable or improbable, foreseeable or unforeseeable.73
In addition to such damages, the obligee or creditor can also recover
moral and exemplary damages.74 Moral damages may be recovered
in addition to other damages. (Far East Bank & Trust Co. vs. Court
of Appeals, 59 SCAD 253, 241 SCRA 671 [1995].)
Voluntary Breach Through Negligence or Culpa. — The
third kind of voluntary breach of an obligation regulated by the Civil

71
Eguaras vs. Great Eastern Life Ass. Co., 33 Phil. 263.
72
8 Manresa, 5th Ed., Bk. 1, p. 176.
73
Art. 2201, par. 2, Civil Code.
74
Arts. 2220 and 2232, Civil Code.

64
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

Code is that which takes place by reason of the negligence or culpa


of the debtor or obligor. It consists in the omission of that diligence
which is required by the nature of the obligation and corresponds
with the circumstances of the persons, of the time and of the place.75
From this definition, it is evident that negligence is simply the
absence of due care required by the nature of the obligation.76 It is
a relative or comparative, not an absolute term, and its application
depends upon the situation of the parties and the degree of care and
vigilance which the circumstances reasonably require. Where the
danger is great, a high degree of care is necessary, and the failure to
observe it is a want of ordinary care under the circumstances.77 It is in
each case practically a question of fact whether the proper degree of
care has been exercised taking into consideration what a reasonable
and prudent man would have done under the circumstances.78
Thus, according to the second paragraph of Art. 1173, if the law
or contract does not state the diligence which is to be observed in
the performance of the obligation, that which is expected of a good
father of a family shall be required. Hence, the law has adopted the
standard supposed to be supplied by the imaginary conduct of the
discreet pater familias of the Roman Law.79
It is, therefore, clear that the degree of care that must be
observed by the obligor in the performance of his obligation shall
depend not only upon the nature of the obligation, but also upon the
circumstances of persons, time and place. In other words, there are
as many degrees of care as there are obligations.
Idem; Kinds of negligence. — Negligence or culpa may be
either civil or criminal. The first is governed by Arts. 1170, 1172,
1173, and other provisions of the New Civil Code, while the second
is governed by Art. 365 of the Revised Penal Code.
Civil negligence, in turn, may be either culpa contractual
or culpa aquiliana (quasi-delicts). Using the general definition of
negligence enunciated in Art. 1173 as basis, the first may be defined
as the fault or negligence of the obligor by virtue of which he is
unable to perform his obligation arising from a pre-existing contract,

75
Art. 1173, Civil Code.
76
Picart vs. Smith, 37 Phil. 809.
77
U.S. vs. Juanillo, 23 Phil. 212.
78
Picart vs. Smith, 37 Phil. 809.
79
Ibid.

65
Arts. 1170-1173 OBLIGATIONS

because of the omission of the diligence which is required by the


nature of the obligation and corresponds with the circumstances
of the persons, of the time and of the place. The second, on the
other hand, may be defined as the fault or negligence of a person,
who, because of the omission of the diligence which is required by
the nature of the obligation and which must correspond with the
circumstances of the persons, of the time and of the place, causes
damage to another.
From the above definitions, it is clear that whether the negli-
gence is culpa contractual or culpa aquiliana, the provision of Art.
1173 of the Civil Code applies. The negligence of the defendant in
both cases is characterized by the omission of that diligence which
is required by the nature of the obligation and corresponds with the
circumstances of the persons, of the time and of the place. The simi-
larity, however, ends there. They are different with respect to an-
tecedents and consequences. They may be distinguished from each
other as follows:
(1) As regards the character of the negligence of the defendant:
In culpa contractual, the negligence of the defendant is merely an
incident in the performance of an obligation; in culpa aquiliana it is
substantive and independent.
(2) As regards the relationship of the parties: In the first
there is always a pre-existing contractual relation; in the second
there may or may not be a pre-existing contractual relation.
(3) As regards the source of the obligation: In the first the
source of the obligation of the defendant to pay damages to the
plaintiff is the breach or nonfulfillment of the contract; in the second
the source is the defendant’s negligent act or omission itself.
(4) As regards the proof required for recovery: In the first proof
of the existence of the contract and of its breach or nonfulfillment
is sufficient prima facie to warrant a recovery; in the second the
negligence of the defendant must be proved.
(5) As regards the availability of due diligence as a defense:
In the first proof of diligence in the selection and supervision of
employees is not available as a defense; in the second it is.

Problem — Taxi driver D, driving recklessly, killed


pedestrian P and his passenger Y. Discuss the source of the

66
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

obligation of D and of his employer to P and to Y, and the defense


available to the employer. (1977 Bar Problem)
Answer — There are three overlapping sources of the
obligation of D and of his employer. They are:
(1) Under the Revised Penal Code: The heirs of P and Y
may proceed against D and his employer under the Penal Code.
In this case, the source of the liability of D and of his employer is
the crime committed by D (culpa criminal). The liability of D is
direct and primary (Art. 100, RPC); the liability of his employer
is subsidiary (Art. 103, RPC). The latter cannot relieve himself
of liability by proving due diligence of a good father of a family.
This is so because of the very nature of his obligation.
(2) Under the Civil Code:
(a) Heirs of P: The heirs of pedestrian P may proceed
against both D and his employer, or against the latter only. In
this case, the source of the liability of D and his employer is the
quasi-delict (culpa aquiliana) committed by D (Arts. 2176, 2180,
CC). The liability of both is direct and primary. D’s employer
can relieve himself of liability by proving due diligence of a good
father of a family in the selection and supervision of his drivers
(Art. 2180, CC).
(b) Heirs of Y: On the other hand, the heirs of Y may
proceed against D’s employer only. The source of the liability
of D’s employer, in this case, is the breach of his contract of
carriage with Y (culpa contractual). His liability is direct and
primary. He cannot relieve himself of liability by proving due
diligence of a good father of a family (Art. 1759, CC). This is so
because under our law on common carriers, we do not adhere to
the principle of respondeat superior; we adhere to the principle
that there is always an implied duty of a common carrier to
carry the passenger safely to his place of destination. However,
although not available as a defense, such proof of due diligence
may serve to mitigate the employer’s liability.

Idem; Negligence distinguished from fraud. — Negligence


or culpa, especially in relation to obligations, signifies an act or
omission which is voluntary in character by virtue of which another
person suffers damage or injury due to a failure to observe the
diligence which is required by the nature of the obligation and which
must correspond with the circumstances of persons, time and place.
It should be distinguished from fraud or dolo which is the conscious
and intentional proposition to evade the normal fulfillment of the

67
Arts. 1170-1173 OBLIGATIONS

obligation. The distinguishing element, therefore, is the element


of intention. If there is intent to cause damage or injury, there is
dolo; if there is merely abandonment, inattention, carelessness, or
lack of diligence, there is culpa.80 It must be observed, however, that
when negligence shows bad faith the rules on fraud or dolo shall
govern.81 In other words, when the negligent act or omission of the
obligor while performing his obligation is so gross that it amounts
to a wanton attitude on his part, the laws governing the liability
of an obligor in case of fraud shall then apply. In such a case, the
boundary line between negligence and fraud practically disappears.
Idem; Test of negligence. — The test by which we can
determine the existence of negligence in a particular case may be
stated as follows: Did the defendant in doing the alleged negligent
act use the reasonable care and caution which an ordinarily prudent
person would have used in the same situation? If not, then he is
guilty of negligence. The law here in effect adopts the standard
supposed to be supplied by the imaginary conduct of the discreet
pater familias of the Roman Law.82

Cangco vs. Manila Railroad Co.


38 Phil. 763
The records show that plaintiff, who was a passenger in
a train belonging to the defendant company, alighted from the
said train while it was still moving before coming to a complete
stop. In so alighting, he stepped upon a sack of watermelons
and as a result he fell violently on the platform. Because of
the violence of his fall, he rolled from the platform and was
drawn under the moving car, as a result of which his right arm
was badly crashed and lacerated. In this action for damages
commenced by the plaintiff against the defendant company, the
former contends that the proximate cause of the accident was
the negligence of the latter in allowing the sack of watermelons
to be placed in its platform where passengers may alight, while
the latter contends that the proximate cause was the negligence
of the former in alighting while the train was still moving.
Granting that the defendant company was negligent in allowing
the sack of watermelons to be placed in its platform, was the

80
8 Manresa, 5th Ed., Bk. 1, p. 180.
81
Art. 1173, par. 1, Civil Code.
82
Picart vs. Smith, 37 Phil. 809; Cangco vs. Manila Railroad Co., 38 Phil. 768.

68
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

plaintiff also negligent in alighting from the train while it was


still moving?
Held: “The test by which to determine whether the
passenger has been guilty of negligence in attempting to alight
from a moving railway train, is that of ordinary or reasonable
care. It is to be considered whether an ordinarily prudent
person, of the age, sex and condition of the passenger, would
have acted as the passenger acted under the circumstances
disclosed by the evidence. This care has been defined to be
not the care which may or should be used by the prudent man
generally, but the care which a man of ordinary prudence would
use, under similar circumstances, to avoid injury. (Thompson,
Commentaries on Negligence, Vol. 3, Sec. 2010.) Or, if we prefer
the mode of exposition used by this court in Picart vs. Smith
(37 Phil. Rep. 809), we may say that the test is this: Was there
anything in the circumstances surrounding the plaintiff at the
time he alighted from the train which would have admonished
a person of average prudence that to get off the train under
the conditions then existing was dangerous? If so, the plaintiff
should have desisted from alighting; and his failure to so desist
was contributory negligence.
“As the case now before us presents itself, the only
fact from which a conclusion can be drawn to the effect that
the plaintiff was guilty of contributory negligence is that he
stepped off the car without being able to discern clearly the
condition of the platform and while the train was yet slowly
moving. In considering the situation thus presented, it should
not be overlooked that plaintiff was ignorant of the fact of the
obstruction which was caused by the sacks of watermelons
piled on the platform. The place was dark, or dimly lighted.
Furthermore, the plaintiff was possessed of the vigor and agility
of young manhood, and it was by no means so risky for him to get
off while the train was yet moving as the same act would have
been in an aged or feeble person. In determining the question of
contributory negligence in performing such act — that is to say,
whether the passenger acted prudently or recklessly — the age,
sex and physical condition of the passenger are circumstances
necessarily affecting the safety of the passenger, and should
be considered. Women, it has been observed, as a general rule,
are less capable than men of alighting with safety under such
conditions, as the nature of their wearing apparel obstructs
the free movement of the limbs. Again, it may be noted that
the place was perfectly familiar to the plaintiff as it was his
daily custom to get on and off the train at this station. There
could, therefore, be no uncertainty in his mind with regard

69
Arts. 1170-1173 OBLIGATIONS

either to the length of the step which he was required to take


or the character of the platform where he was alighting. Our
conclusion is that the conduct of the plaintiff in undertaking
to alight while the train was yet slightly under way was not
characterized by imprudence and that, therefore, he was not
guilty of contributory negligence.”

Idem; Effects of negligence. — If the debtor or obligor


is unable to comply with his obligation because of his fault or
negligence, the creditor or obligee can hold him liable for damages.83
This liability subsists even if he has been acquitted in a criminal
action charging him with a criminal offense based on his negligent
act or omission.84
It must be observed, however, that Art. 1172 which enunciates
the principle of the demandability of the responsibility of the
obligor in case of negligence is different from Art. 1171 which also
enunciates the same principle in case of fraud in the sense that
in the former, nothing is said with regard to the renunciation or
waiver of the action, while in the latter, it is stated that any waiver
of an action for future fraud is void. Consequently, may an action
for negligence be waived? There is no question that if the action is
based on a negligent act or omission which has already happened,
the action may be waived since it can also be done in the case of fraud
and negligence is certainly not as serious as fraud. The question is
with respect to an action for future negligence. Can it be waived?
Authorities agree that it can be waived, unless the nature of the
obligation and public policy should require extraordinary diligence
as in the case of common carriers.85 Thus, the Supreme Court in the
case of Heacock vs. Macondray & Co.,86 stated:

“Three kinds of stipulation have often been made in a bill


of lading. The first is one exempting the carrier from any and
all liability for loss or damage occasioned by its own negligence.
The second is one providing for an unqualified limitation of such
liability to an agreed valuation, and the third is one limiting the

83
Art. 1170, Civil Code; Baer, Senior & Co. vs. Compania Maritima, 6 Phil. 215;
Guzman vs. Behn, Meyer & Co., 9 Phil. 112.
84
San Pedro Bus Lines vs. Navarro, 94 Phil. 846; see Art. 31, Civil Code.
85
Art. 1733, Civil Code; see also Arts. 1745, 1749, 1750, Civil Code.
86
42 Phil. 205. This excerpts from Heacock vs. Macondray is now modified by the
provisions of Arts. 1749 to 1750 of the New Civil Code.

70
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

liability of the carrier to an agreed valuation unless the shipper


declares a higher value and pays a higher rate of freight.
According to an almost uniform weight of authority the first and
second kinds of stipulations are is valid as being contrary to
public policy, but the third is valid and enforceable.”

In the case of Southeastern College, Inc., vs. Court of Appeals,


Juanita de Jesus Vda. De Dimaano, et al., (July 10, 1998, 292
SCRA 422), the Supreme Court observed that at the outset, it bears
emphasizing that a person claiming damages for the negligence
of another has the burden of proving the existence of fault or
negligence causative of his injury or loss. The facts constitutive of
negligence must be affirmatively established by competent evidence,
not merely by presumptions and conclusions without basis in fact.
Private respondents, in establishing the culpability of petitioner,
merely relied on the aforementioned report submitted by a team
which made an ocular inspection of petitioner’s school building after
the typhoon. As the term imparts, an ocular inspection is one that
is conducted by means of actual sight or viewing. What is visual to
the eye though, is not always reflective of the real cause behind.
For instance, one who hears a gunshot and then sees a wounded
person, cannot always definitely conclude that a third person shot
the victim. It could have been self-inflicted or caused accidentally by
a stray bullet. The relationship of cause and effect must be clearly
shown.
Idem; id. — Regulatory power of the courts. — Under Art.
1172, liability arising from negligence in the performance of every
kind of obligation may be regulated by the courts. Consequently,
the court may increase or decrease the liability of the party at fault
depending upon the circumstances of each case. Thus, the court
may take into consideration the good or bad faith of the obligor
(defendant) or the conduct of the obligee (plaintiff) when the damage
was incurred.
Idem; id.; id. — Effect of good faith. — If the debtor or
obligor has acted in good faith, he shall be liable only for natural
and probable consequences of the breach of the obligation and which
the parties have foreseen or could have reasonably foreseen at the
time the obligation was constituted.87

87
Art. 2201, par. 1, Civil Code; De Guia vs. Manila Electric Co., 40 Phil. 706.

71
Arts. 1170-1173 OBLIGATIONS

Idem; id.; id. — Effect of bad faith. — If the negligence of


the obligor shows bad faith, then, by express provision of Art. 1173,
the provisions of Arts. 1171 and 2201, par. 2, shall apply. It is in this
case that the boundary line, at least with regard to effects, between
negligence and fraud disappears altogether. Hence, the obligor
can be held responsible for all damages which may be reasonably
attributed to the nonperformance of the obligation.88 Furthermore,
any waiver or renunciation which is made in anticipation of such
liability is null and void.89
Idem; id.; id. — Effect of contributory negligence. — If
there was contributory negligence of the obligee or creditor, the
effect is to reduce or mitigate the damages which he can recover
from the obligor or debtor as a result of the breach of the obligation.
This doctrine has always been consistently upheld by the Supreme
Court.90 Attention, however, must be called to the fact that if the
negligent act or omission of the obligee concurred with the negligent
act or omission of the obligor in causing the injury complained of,
in other words, if the negligent act or omission of the obligee was
a proximate cause of the event which led to the damage or injury
complained of, he cannot recover. It is, therefore, of the utmost
importance to determine whether the negligence of the obligee or
creditor was a proximate cause of the accident or event which led to
the injury or merely contributory to his own injury. The test is given
in the following case:

Rakes vs. Atlantic Gulf and Pacific Co.


7 Phil. 359

This is an action to recover damages. The plaintiff, one


of a gang of eight Negro laborers in the employment of the
defendant, was at work transporting rails from a barge in the
harbor to the company’s yard near the Malecon in Manila. The
rails lay upon two crosspieces secured to the cars, but without
sidepieces or guards to prevent them from slipping off. At a
certain spot at or near the water’s edge the track sagged, the tie

88
Art. 2201, par. 2, Civil Code.
89
Art. 1171, Civil Code.
90
Rakes vs. Atlantic, Gulf and Pacific Co., 7 Phil. 359; Cangco vs. Manila Rail-
road Co., 36 Phil. 766; Borromeo vs. Manila Railroad Co., 44 Phil. 165; Del Prado vs.
Manila Electric Co., 52 Phil. 900.

72
NATURE AND EFFECT OF OBLIGATIONS Arts. 1170-1173

broke, the car canted, the rails slid off and caught the plaintiff,
breaking his leg, which was afterwards amputated at about the
knee. The cause of the sagging of the track is admitted to be the
dislodging of the crosspiece under the stringer by the water of
the bay raised by a recent typhoon. The superintendent of the
company attributed it to the giving way of the block laid in the
sand. No effort was made to repair the injury at the time of the
occurrence. According to the plaintiff’s witnesses, a depression
of the track was apparent to the eye, and a fellow workman of
the plaintiff swears that the day before the accident he called the
attention of the foreman to it and asked him to have it repaired.
It is also admitted that there was a prohibition imposed by the
defendant company against walking by the side of the car and
that the plaintiff was walking by the side of the car when the
rails slid off. The question now is — what effect is to be given to
such act of contributory negligence?
Held: “Difficulty seems to be apprehended in deciding
which acts of the injured party shall be considered immediate
causes of the accident. The test is simple. Distinction must be
made between the accident and the injury, between the event
itself, without which there could have been no accident, and
those acts of the victim not entering into it, but contributing
to his own proper hurt. For instance, the cause of the accident
under review was the displacement of the crosspiece or the
failure to replace it. This produced the event giving occasion for
damages that is the sinking of the track and the sliding of the
iron rails. To this event, the act of the plaintiff in walking by
the side of the car did not contribute although it was an element
of the damage which came to himself. Had the crosspiece been
out of place wholly or partly through his act or omission of duty,
that would have been one of the determining causes of the
event or accident, for which he would have been responsible.
Where he contributes to the principal occurrence, as one of its
determining factors, he cannot recover. Where, in conjunction
with the occurrence, he contributes only to his own injury, he
may recover the amount that the defendant responsible for the
event should pay for such injury, less a sum deemed a suitable
equivalent for his own imprudence.
“Accepting, though with some hesitation, the judgment
of the trial court, fixing the damage incurred by the plaintiff
at 5,000 pesos, the equivalent of 2,500 dollars, United States
money, we deduct therefrom 2,500 pesos, the amount fairly
attributed to his negligence, and direct judgment to be entered
in favor of the plaintiff for the resulting sum of 2,500 pesos, with

73
Art. 1174 OBLIGATIONS

costs to both instances and ten days thereafter let the case be
remanded to the court below for proper action.”

Idem; id.; id. — Other circumstances. — Besides the


circumstances referred to in the preceding sections, the courts may
also equitably mitigate the damages in the following instances:
(1) Where the plaintiff himself has contravened the terms of
the contract;
(2) Where the plaintiff has derived some benefit as a result of
the contract;
(3) In cases where exemplary damages are to be awarded,
where the defendant acted upon the advice of counsel;
(4) Where the loss would have resulted in any event; and
(5) Where upon the filing of the action, the defendant has
done his best to lessen the plaintiff’s loss or injury.91
Voluntary Breach Through Contravention of Tenor
of Obligation. — Under Art. 1170 of the Civil Code, not only
debtors guilty of fraud, negligence or default in the performance
of obligations are decreed liable; in general, every debtor who fails
in the performance of his obligations is bound to indemnify the
creditor for the damages caused thereby. The phrase “in any manner
contravene the tenor” of the obligation includes not only any illicit
act which impairs the strict and faithful fulfillment of the obligation,
but also every kind of defective performance.92

Art. 1174. Except in cases expressly specified by the law,


or when it is otherwise declared by stipulation, or when the
nature of the obligation requires the assumption of risk, no
person shall be responsible for those events which, could not
be foreseen, or which, though foreseen, were inevitable.93
Concept of Fortuitous Event. — According to the above
article, fortuitous event may be defined as an event which could
not be foreseen, or which, though foreseen, was inevitable. It is

91
Art. 2215, Civil Code.
92
Arrieta vs. National Rice and Corn Corp., 10 SCRA 79.
93
Art. 106, Spanish Civil Code, in amended form.

74
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

clear from this definition that the presence of either the element
of unforeseability or inevitability would be sufficient to classify
the event as fortuitous in character. Hence, even if the event was
not inevitable if it could not have been foreseen, or even if it could
have been foreseen if it was inevitable, it would be considered as a
fortuitous event. It is evident, therefore, that the definition is broad
enough to comprehend “acts of God” or those which are absolutely
independent of human intervention, such as rains, typhoons, floods,
cyclones, earthquakes or any other similar calamity brought about
by natural forces. It is also broad enough to include force majeure
or events which arise from legitimate or illegitimate acts of persons
other than the obligor, such as commotions, riots, wars, robbery, and
similar acts.
The antecedent of fortuitous event or caso fortuito is found
in the Partidas which defines it as “an event which takes place by
accident and could not have been foreseen.’’ Escriche elaborates it as
“an unexpected event or act of God which could neither be foreseen
nor resisted.’’ Civilist Arturo M. Tolentino adds that “[f]ortuitous
events may be produced by two general causes: (1) by nature, such as
earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act
of man, such as an armed invasion, attack by bandits, governmental
prohibitions, robbery, etc.’’ (Southeastern College, Inc. vs. Court of
Appeals, July 10, 1998, 292 SCRA 422.)
Classification. — Fortuitous events may be classified into
fortuitous event proper (act of God) and force majeure (fuerza mayor)
depending upon whether there is human intervention or not. The
first refers to an event which is absolutely independent of human
intervention, while the second refers to an event which arises from
legitimate or illegitimate acts of persons other than the obligor.94
The distinction, however, is merely technical. Essentially, there is
no substantial difference between the two; both refer to an event or
cause which is independent of the will of the obligor.95
As to foreseeability, fortuitous events may also be classified into
ordinary and extraordinary fortuitous event. The first refers to an
event which usually happens or which could have been reasonably
foreseen, while the second refers to an event which does not usually

94
8 Manresa, 5th Ed., Bk. 1, p. 205.
95
University of Santo Tomas vs. Descals, 38 Phil. 267.

75
Art. 1174 OBLIGATIONS

happen and which could not have been reasonably foreseen, such as
fire, war, pestilence, unusual flood, locust, earthquake, and others of
a similar nature.96
Effect upon Obligation. — If the obligor is unable to comply
with his obligation by reason of a fortuitous event, the general rule is
that he is exempted from any liability whatsoever.97 In other words,
his obligation is extinguished.98
Thus, where the obligor is unable to surrender his revolver to
the government upon demand because it was lost during a storm,99
or to return some photographic negatives that were entrusted to him
by the obligee because of a fire of accidental origin which destroyed
his place of business,100 or to deliver certain animals which he had
contracted to give to the obligee at a specified date because they dies
of natural causes or were killed during an epidemic before he could
deliver them to such obligee,101 it was held that since the breach of
the obligation is due to a fortuitous event, it is thereby extinguished;
consequently, he cannot be held liable for damages.
The application of this rule is even more evident in motor ve-
hicle accidents. Thus, where it was established that the defendant’s
bus was bumped by another bus which caused the driver to swerve it
to the left so as to prevent it from falling into a canal and as a result
it struck a tree, which led the bus to skid and capsize, it was held
that since the injury can be attributed or imputed only to an inevi-
table accident and not the misconduct or negligence of the operator
or of the driver, there can be no possible recovery of damages.102 But
where the accident is due to a defect of an equipment or of an appli-
ance purchased from a manufacturer, it is clear that such a defect
cannot be considered a fortuitous event within the meaning of the
law. This doctrine is very well illustrated in the case of Necesito vs.
Paras.103 In this case, it was proved that the bus, where one of the

96
Art. 1680, Civil Code.
97
Art. 1174, Civil Code.
98
See Arts. 1262, 1266, Civil Code.
99
Government vs. Bingham, 13 Phil. 185 but see Government vs. Amechazurra,
10 Phil. 637.
100
Brown vs. Robert, 40 Phil. 990; Lizares vs. Hernaez, 40 Phil. 981.
101
Palacio vs. Sudario, 7 Phil. 275; Crame vs. Gonzaga, 10 Phil. 646.
102
Ampang vs. Guinco Trans. Co., 92 Phil. 1085.
103
104 Phil. 75.

76
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

plaintiffs and his mother were riding as passengers, was on its regu-
lar run when all of a sudden the steering knuckle broke, as a result
of which the driver lost control of the wheel, causing the bus to fall
into a ditch. The aforesaid plaintiff was injured, while his mother
was killed. Subsequently, an action to recover damages was brought
directly against the operator of the bus. Defendant now claims that
the cause of the accident is a fortuitous event. Refusing to accept
this defense, the Supreme Court declared:

“The preponderance of authority is in favor of the doctrine


that a passenger is entitled to recover damages from a carrier
for an injury resulting from a defect in an appliance purchased
from a manufacturer, whenever it appears that the defect would
have been discovered by the carrier if it had exercised the degree
of care which under the circumstances was incumbent upon it
with regard to the inspection and application of the necessary
test. For the purposes of this doctrine, the manufacturer is
considered as being in law the agent or servant of the carrier, as
far as the work of constructing the appliance. According to this
theory, the good repute of the manufacturer will not relieve the
carrier from liability. (10 Am. Jur. 205, s. 1324; and cases cited
therein.) The rationale of the carrier’s liability is the fact that the
passenger has neither choice nor control over the carrier in the
selection and use of the equipment and appliances in use by the
carrier. Having no privity whatever with the manufacturer or
vendor of the defective equipment, the passenger has no remedy
against him, while the carrier usually has. It is but logical,
therefore, that the carrier, while not an insurer of the safety of
his passengers, should nevertheless be held to answer for the
flaws of his equipment if such flaws were at all discoverable.
“In the case at bar, the record is to the effect that the only
test applied to the steering knuckle in question was a purely
visual inspection every 30 days, to see if any crack developed.
It nowhere appears that either the manufacturer or the carrier
at anytime tested the steering knuckle to ascertain whether its
strength was up to standard, or that it had no hidden flaws that
would impair that strength. This periodical visual inspection
of the steering knuckle as practised by the carrier’s agents
did not measure up to the required legal standard of ‘utmost
diligence of very cautious persons’ . . . ‘as far as human care and
foresight can provide.’ Therefore the knuckle’s failure can not
be considered a fortuitous event that would exempt the carrier
from responsibility. (Lasam vs. Smith, 46 Phil. 657; Son vs.
Cebu Autobus Co., L-6155, April 30, 1954.)”

77
Art. 1174 OBLIGATIONS

The above doctrine was also applied in a much more recent


case — the case of La Mallorca vs. De Jesus.104 Although there is
authority to the effect that a tire blowout as a proximate cause for
a motor vehicle accident can be classified as a fortuitous event,105
nevertheless, where it was established that the bus involved in the
accident was running quite fast immediately before said accident,
and that the cause of the blowout was a mechanical defect of the
conveyance or of its equipment which could easier have been
discovered if the bus had been subjected to a more thorough or rigid
check-up before its use, it was held that the plea of caso fortuito in
such case cannot be entertained.106
In connection with the doctrine enunciated in the above cases,
the following decision penned by Chief Justice Enrique Fernando is
interesting.

Tugade vs. Court of Appeals


85 SCRA 226

There is nothing impressive about this petition seeking


to justify a review of a decision of respondent Court of Appeals
on the ground that instead of relying on what counsel considers
applicable rulings of respondent Court, the judgment was
based on a case decided by this Tribunal. Moreover, counsel for
petitioner ignored earlier doctrines of this Court consistently
holding that a mishap caused by defective brakes could not
be considered as fortuitous in character and thus called for an
acquittal of the driver if subsequently haled to court. This Court,
nonetheless, was persuaded to give due course to the petition
primarily for clarifying the state of the law and thus hopefully
avoid any further lurking doubt on the matter. It is quite
evident that a reversal of the decision sought to be reviewed is
not justified.
The decision of respondent Court, with Justice Juliano
Agrava as ponente, set forth the relevant facts thus: “At
about 9:15 o’clock in the morning of January 4, 1972, Rodolfo
[Rayandayan] was driving a Holden Kingwood car (the [Holden]
car), bearing Plate No. 52-19V (L-Rizal ’71), owned by the Sta.
Ines Mining Corp. and assigned for use of its manager, on Ayala

104
17 SCRA 23.
105
Rodriguez vs. Red Line Trans. Co., CA, 51 Off. Gaz. 3006.
106
La Mallorca vs. De Jesus, 17 SCRA 23.

78
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

Avenue in Makati, Rizal, going northwards. At the intersection


of Ayala Avenue and Makati Avenue, [Rayandayan] was going
to turn left on Makati Avenue but he stopped to wait for the
left-turn signal and because a jeep in front of him was also at
a stop * * *. While in that stop position, the [Holden] car was
bumped from behind by Blue Car Taxi, bearing Plate No. 55-
71R (TX-QC ’71) and driven by Inocencio [Tugade] causing
damage to the [Holden] car, the repairs of which cost P778.10
* * * [Tugade] was then charged with Reckless Imprudence
Resulting in Damage to Property. He pleaded not guilty and
while admitting that the collision was caused by faulty brakes
of his taxicab, sought to exculpate himself with the explanation
that this fault could not and should not be traced to him. After
trial, the lower court held: ‘[Accordingly], the Court finds
that accused Inocencio Tugade was guilty beyond reasonable
doubt of the crime of reckless imprudence resulting in damage
to property and hereby sentences him to pay a [fine of one
thousand (P1,000.00) pesos], with subsidiary imprisonment in
case of insolvency in accordance with the provisions of Article
39 of the Revised Penal Code, as amended, to indemnify the Sta.
Ines Mining Corporation in the amount of P778.10 by way of
actual damages; and to pay the costs.’ While [Tugade] admitted
the facts of the case as set out above, he, nevertheless, appealed
from the judgment reiterating that ‘the malfunctioning of the
brakes at the time of the accident was due to a mechanical
defect which even the exercise of due diligence of a good father of
a family cannot have prevented.’ As the lower court had found:
‘this witness ([Tugade]) testified that after the accident, he
admitted that his taxicab bumped the car on his front because
the brakes of his vehicle malfunctioned; and that the document
* * * is the handwritten statement he prepared to this effect.’ ’’
Respondent Court of Appeals, after stating that upon review of
the record, it agreed with the trial court, rendered its decision
affirming in toto the judgment appealed from.
As noted at the outset, petitioner is not entitled to
acquittal. His plea for the reversal of the decision reached by
respondent Court is not impressed with merit. At the most, as
was likewise previously mentioned, the fine imposed could be
reduced.
1. Counsel for petitioner vigorously contends that
respondent Court of Appeals ought not to have applied the
pronouncement in La Mallorca and Pampanga Bus Co. vs.
De Jesus on the ground that it was obiter dictum. That is not
the case at all. A little more time and attention in the study of
the above decision could have resulted in its correct appraisal.

79
Art. 1174 OBLIGATIONS

He would have realized then that respondent Court acted


correctly. This Tribunal passed squarely on the specific issue
raised. The opinion penned by the then Justice, later Chief
Justice Makalintal is categorical: “Petitioner maintains that a
tire blow-out is a fortuitous event and gives rise to no liability
for negligence, citing the rulings of the Court of Appeals in
Rodriguez vs. Red Line Transportation Co., CA-G.R. No. 8136,
December 29, 1954, and People vs. Palapal, CA-G.R. No. 18480,
June 27, 1958. These rulings, however, not only are not binding
on this Court but were based on considerations quite different
from those that obtain in the case at bar.’’ The above doctrine is
controlling. The reference to the Court of Appeals decisions is of
no moment. 107 It may be pointed out that they were not ignored
in the opinion of Justice Agrava, six of its nine pages being
devoted to distinguishing them. Even without the La Mallorca
ruling then, the decision of respondent Court sought to be
reviewed can stand the test of strict scrutiny. It is this Tribunal,
not respondent Court of Appeals, that speaks authoritatively.
2. Respondent Court of Appeals really was devoid of
any choice at all. It could not have ruled in any other way on the
legal question raised. This Tribunal having spoken, its duty was
to obey. It is simple as that. There is relevance to this excerpt
from Barrera vs. Barrera:108 “The delicate task of ascertaining
the significance that attaches to a constitutional or statutory
provision, an executive order, a procedural norm or a municipal
ordinance is committed to the judiciary. It thus discharges
a role no less crucial than that appertaining to the other two
departments in the maintenance of the rule of law. To assure
stability in legal relations and avoid confusion, it has to speak
with one voice. It does so with finality, logically, and rightly,
through the highest judicial organ, this Court. What it says
then should be definitive and authoritative, binding on those
occupying the lower ranks in the judicial hierarchy. They have
to defer and to submit.”109 The ensuing paragraph of the opinion
in Barrera further emphasizes the point: “Such a thought was
reiterated in an opinion of Justice J.B.L. Reyes and further

107
The cases follow: People vs. Hatton, CA-GR No. 8310-R, Feb. 11, 1953; Peo-
ple vs. Oligan, CA-G.R. No. 05583-CR, Aug. 17, 1967; People vs. Palapal, CA-G.R.
No. 18480-Cr., June 27, 1958; People vs. Bandonil, CA-G.R. No. 25513-R, May 25,
1959; People vs. Aralar, CA-GR No. 01451-Cr., November 29, 1963; and People vs.
Buenaventura, CA-G.R. No. 00626-Cr., April 30, 1964.
108
L-31589, July 31, 1970, 34 SCRA 98.
109
Ibid., 107. The opinion of Justice Laurel in People vs. Vera, 65 Phil. 56 (1937)
was cited.

80
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

emphasized in these words: ‘Judge Gaudencio Cloribel need not


be reminded that the Supreme Court, by tradition and in our
system of judicial administration, has the last word on what the
law is; it is the final arbiter of any justifiable controversy. There
is only one Supreme Court whose decisions all other courts
should take their bearings.’ ’’110
3. The lack of merit in this petition becomes even more
obvious when it is recalled that the La Mallorca decision did not
enunciate a new principle. As far back as Lasam vs. Smith,111
promulgated more than half a century ago, in 1924 to be exact,
this Court has been committed to such a doctrine. Thus: “As
will be seen, these authorities agree that some extraordinary
circumstance independent of the will of the obligor, or of his
employees, is an essential element of a caso fortuito. Turning
to the present case, it is at once apparent that this element is
lacking. It is not suggested that the accident in question was
due to an act of God or to adverse road conditions which could
not have been foreseen. As far as the record shows, the accident
was caused either by defects in the automobile or else through
the negligence of its driver. That is not a caso fortuito.’’112 Lasam
was cited with approval in the two subsequent cases of Son vs.
Cebu Autobus Co.113 and Necesito vs. Paras.114
WHEREFORE, The decision of respondent Court of
Appeals of December 15, 1977 is affirmed. No costs.
The following decision penned by Justice Gutierrez, Jr. is
equally interesting:

Juntilla vs. Fontanar


136 SCRA 625
This is a petition for review, on questions of law, of the
decision of the Court of First Instance of Cebu which reversed
the decision of the City Court of Cebu and exonerated the
respondents from any liability arising from a vehicular accident.
The background facts which led to the filing of a complaint
for breach of contract and damages against the respondents are
summarized by the Court of First Instance of Cebu as follows:

110
Ibid., Justice J.B.L. Reyes spoke thus in Albert vs. Court of First Instance of
Manila (Br. VI), L-26364, May 29, 1968, 23 SCRA 948, 961.
111
45 Phil. 657.
112
Ibid., 661-662.
113
94 Phil. 892 (1954).
114
104 Phil. 75 (1958).

81
Art. 1174 OBLIGATIONS

“The facts established after trial show that the plaintiff


was a passenger of the public utility jeepney bearing plate No.
PUJ-71-7 on the course of the trip from Danao City to Cebu City.
The jeepney was driven by defendant Berfol Camoro. It was
registered under the franchise of defendant Clemente Fontanar
but was actually owned by defendant Fernando Banzon. When
the jeepney reached Mandaue City, the right rear tire exploded
causing the vehicle to turn turtle. In the process, the plaintiff
who was sitting at the front seat was thrown out of the vehicle.
Upon landing on the ground, the plaintiff momentarily lost
consciousness. When he came to his senses, he found that he
had a lacerated wound on his right palm. Aside from this, he
suffered injuries on his left arm, right thigh and on his back.
(Exh. “D”) Because of his shock and injuries, he went back to
Danao City but on the way, he discovered that his ‘Omega’ wrist
watch was lost. Upon his arrival in Danao City, he immediately
entered the Danao City Hospital to attend to his injuries, and
also requested his father-in-law to proceed immediately to the
place of the accident and look for the watch. In spite of the
efforts of his father-in-law, the wrist watch, which he bought for
P852.70 (Exh. “B’’) could no longer be found.’’
xxx xxx xxx
Petitioner Roberto Juntilla filed Civil Case No. R-17378
for breach of contract with damages before the City Court of
Cebu City, Branch I against Clemente Fontanar, Fernando
Banzon and Berfol Camoro.
The respondents filed their answer, alleging inter alia
that the accident that caused losses to the petitioner was beyond
the control of the respondents taking into account that the tire
that exploded was newly bought and was only slightly used at
the time it blewout.
After trial, Judge Romulo R. Senining the City Court of
Cebu rendered judgment in favor of the petitioner and against
the respondents. The dispositive portion of the decision reads:
“WHEREFORE, judgment is hereby rendered in
favor of the plaintiff and against the defendants and the
latter are hereby ordered, jointly and severally, to pay
the plaintiff the sum of P750.00 as reimbursement for the
lost Omega wrist watch, the sum of P246.64 as unrealized
salary of the plaintiff from his employer, the further sum
of P100.00 for the doctor’s fees and medicine, an additional
sum of P300.00 for attorney’s fees and the costs.”

82
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

The respondents appealed to the Court of First Instance of


Cebu Branch XIV.
Judge Leonardo B. Cañares reversed the judgment of the
City Court of Cebu upon finding that the accident in question
was due to a fortuitous event. The dispositive portion of the
decision reads:
“WHEREFORE, judgment is hereby rendered exonerating
the defendants from any liability to the plaintiff without
pronouncement as to costs.”
A motion for reconsideration was denied by the Court of
First Instance.
The petitioner raises the following alleged errors
committed by the Court of First Instance of Cebu on appeal —
“a. The Honorable Court below committed grave
abuse of discretion in failing to take cognizance of the fact
that defendants and/or their employee failed to exercise
‘utmost and/or extraordinary diligence’ required of common
carriers contemplated under Art. 1755 of the Civil Code of the
Philippines.
“b. The Honorable Court below committed grave abuse
of discretion by deciding the case contrary to the doctrine laid
down by the Honorable Supreme Court in the case of Necesito,
et al. vs. Paras, et al.’’
We find the petition impressed with merit.
The City Court and the Court of First Instance of Cebu
found that the right rear tire of the passenger jeepney in which
the petitioner was riding blewout causing the vehicle to fall on its
side. The petitioner questions the conclusion of the respondent
court drawn from this finding of fact.
The Court of First Instance of Cebu erred when it absolved
the carrier from any liability upon a finding that the tire blowout
is a fortuitous event. The Court of First Instance of Cebu ruled
that:
“After reviewing the records of the case, this Court
finds that the accident in question was due to a fortuitous
event. A tire blowout, such as what happened in the case
at bar, is an inevitable accident that exempts the carrier
from liability, there being absence of a showing that there
was misconduct or negligence on the part of the operator
in the operation and maintenance of the vehicle involved.

83
Art. 1174 OBLIGATIONS

The fact that the right rear tire exploded, despite being
brand new, constitutes a clear case of caso fortuito which
can be a proper basis for exonerating the defendants from
liability. x x x’’
The Court of First Instance relied on the ruling of the
Court of Appeals in Rodriguez vs. Red Line Transportation
Co., CA-G.R. No. 8136, December 29, 1954, where the Court of
Appeals ruled that:

“A tire blowout does not constitute negligence unless


the tire was already old and should not have been used at
all. Indeed, this would be a clear case of fortuitous event.’’
The foregoing conclusions of the Court of First Instance
of Cebu are based on a misapprehension of overall facts from
which a conclusion should be drawn. The reliance of the Court
of First Instance on the Rodriguez case is not in order. In La
Mallorca and Pampanga Bus Co. vs. De Jesus, et al. (17 SCRA
23), we held that:

“Petitioner maintains that a tire blowout is a


fortuitous event and gives rise to no liability for negligence,
citing the rulings of the Court of Appeals in Rodriguez vs.
Red Line Transportation Co., CA-G.R. No. 8136, Decembr
29, 1954, and People vs. Palapad, CA-G.R. No. 18480,
June 27, 1958. These rulings, however, not only are not
binding on this Court but were based on considerations
quite different from those obtained in the case at bar. The
appellate court there made no findings of any specific acts
of negligence on the part of the defendants and confined
itself to the question of whether or not a tire blowout by
itself alone and without a showing as to the causative
factors would generate liability. x x x’’
In the case at bar, there are specific acts of negligence on
the part of the respondents. The records show that the passenger
jeepney turned turtle and jumped into a ditch immediately
after its right rear tire exploded. The evidence shows that the
passenger jeepney was running at a very fast speed before the
accident. We agree with the observation of the petitioner that a
public utility jeep running at a regular and safe speed will not
jump into a ditch when its right rear tire blows up. There is also
evidence to show that the passenger jeepney was overloaded
at the time of the accident. The petitioner stated that there
were three (3) passengers in the front seat and fourteen (14)
passengers in the rear.

84
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

While it may be true that the tire that blewout was still
good because the grooves of the tire were still visible, this fact
alone does not make the explosion of the tire a fortuitous event.
No evidence was presented to show that the accident was due to
adverse road conditions or that precautions were taken by the
jeepney driver to compensate for any conditions liable to cause
accidents. The sudden blowing out, therefore, could have been
caused by too much air pressure injected into the tire coupled
by the fact that the jeepney was overloaded and speeding at the
time of the accident.
In Lasam vs. Smith (45 Phil. 657), we laid down the
following essential characteristics of caso fortuito:
xxx xxx xxx
x x x ‘In a legal sense and, consequently, also in
relation to contracts, a caso fortuito presents the following
essential characteristics: (1) The cause of the unforeseen
and unexpected occurrence, or of the failure of the debtor
to comply with his obligation, must be independent of the
human will; (2) It must be impossible to foresee the event
which constitutes the caso fortuito, or if it can be foreseen,
it must be impossible to avoid; (3) The occurrence must be
such as to render it impossible for the debtor to fulfill his
obligation in a normal manner; and (4) The obligor (debtor)
must be free from any participation in the aggravation
of the injury resulting to the creditor.’ (5 Encyclopedia
Juridica Española, 309.)’’
In the case at bar, the cause of the unforeseen and
unexpected occurrence was not independent of the human will.
The accident was caused either through the negligence of the
driver or because of mechanical defects in the tire. Common
carriers should teach their drivers not to overload their vehicles,
not to exceed safe and legal speed limits, and to know the
correct measures to take when a tire blows out thus insuring
the safety of passengers at all times. Relative to the contingency
of mechanical defects, we held in Necesito, et al. vs. Paras, et al.
(102 Phil. 75), that:
“x x x The preponderance of authority is in favor of
the doctrine that a passenger is entitled to recover damages
from a carrier for an injury resulting from a defect in an
appliance purchased from a manufacturer, whenever it
appears that the defect would have been discovered by the
carrier if it had exercised the degree of care which under
the circumstances was incumbent upon it, with regard to

85
Art. 1174 OBLIGATIONS

inspection and application of the necessary tests. For the


purposes of this doctrine, the manufacturer is considered
as being in law the agent or servant of the carrier, as far as
regards the work of constructing the appliance. According
to this theory, the good repute of the manufacturer will
not relieve the carrier from liability.’ (10 Am. Jur. 205, s.
1324; see also Pennsylvania R. Co. vs. Roy, 102 U.S. 451;
20 L. Ed. 141; Southern R. Co. vs. Hussey, 74 ALR 1172,
42 Fed. 2d 70; and Ed. Note, 29 ALR 788; Ann. Cas. 1916E
929)
The rationale of the carrier’s liability is the fact that the
passenger has neither choice nor control over the carrier in the
selection and use of the equipment and appliances in use by the
carrier. Having no privity whatever with the manufacturer or
vendor of the defective equipment, the passenger has no rem-
edy against him, while the carrier usually has. It is but logical,
therefore, that the carrier, while not an insurer of the safety of
his passengers, should nevertheless be held to answer for the
flaws of his equipment if such flaws were at all discoverable.
x x x”
It is sufficient to reiterate that the source of a common
carrier’s legal liability is the contract of carriage, and by entering
into the said contract, it binds itself to carry the passengers
safely as far as human care and foresight can provide, using the
utmost diligence of a very cautious person, with a due regard for
all the circumstances. The records show that this obligation was
not met by the respondents.
The respondents likewise argue that the petitioner cannot
recover any amount for failure to prove such damages during
the trial. The respondents submit that if the petitioner was
really injured, why was he treated in Danao City and not in
Mandaue City where the accident took place. The respondents
argue that the doctor who issued the medical certificate was not
presented during the trial, and hence not cross-examined. The
respondents also claim that the petitioner was not wearing any
wrist watch during the accident.
It should be noted that the City Court of Cebu found that
the petitioner had a lacerated wound on his right palm aside
from injuries on his left arm, right thigh and on his back and
that on his way back to Danao City, he discovered that his
“Omega” wrist watch was lost. These are findings of facts of the
City Court of Cebu which we find no reason to disturb. More
so when we consider the fact that the Court of First Instance

86
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

of Cebu impliedly concurred in these matters when it confined


itself to the question of whether or not the tire blowout was a
fortuitous event.
WHEREFORE, the decision of the Court of First Instance
of Cebu, Branch IV appealed from is hereby REVERSED and
SET ASIDE, and the decision of the City Court of Cebu, Branch
I is REINSTATED, with the modification that the damages
shall earn interest at 12% per annum and the attorney’s fees
are increased to SIX HUNDRED PESOS (P600.00). Damages
shall earn interest from January 27, 1975.
SO ORDERED.

Further, in the case of Southeastern College, Inc. vs. Court of


Appeals (July 10, 1998, 292 SCRA 422), the Supreme Court ruled
that in order that a fortuitous event may exempt a person from
liability, it is necessary that he be free from any previous negligence
or misconduct by reason of which the loss may have been occasioned.
An act of God cannot be invoked for the protection of a person who
has been guilty of gross negligence in not trying to forestall its
possible adverse consequences. When a person’s negligence concurs
with an act of God in producing damage or injury to another, such
person is not exempt from liability by showing that the immediate
or proximate cause of the damage or injury was a fortuitous event.
When the effect is found to be partly the result of the participation of
man — whether it be from active intervention, or neglect, or failure
to act — the whole occurrence is hereby humanized, and removed
from the rules applicable to acts of God.
Moreover, in the aforementioned case of Southeastern College,
Inc. vs. Court of Appeals, the Supreme Court also ruled that there is
no question that a typhoon or storm is a fortuitous event, a natural
occurrence which may be foreseen but is unavoidable despite any
amount of foresight, diligence or care. In order to be exempt from
liability arising from any adverse consequence engendered thereby,
there should have been no human participation amounting to a
negligent act. In other words, the person seeking exoneration from
liability must not be guilty of negligence. Negligence, as commonly
understood, is conduct which naturally or reasonably creates undue
risk or harm to others. It may be the failure to observe that degree
of care, precaution, and vigilance which the circumstances justly
demand, or the omission to do something which a prudent and

87
Art. 1174 OBLIGATIONS

reasonable man, guided by considerations which ordinarily regulate


the conduct of human affairs, would do.
It must be observed, however, that the general rule stated
in Art. 1174 can be applied only to determinate obligations and
not to generic ones.115 Consequently, where the obligation consists
in the payment of money,116 or in the delivery of any generic or
indeterminate thing, such as several cavans of rice117 or several
piculs of sugar118 or several tons of copra,119 the fact that the obligor
was unable to comply with his obligation by reason of a fortuitous
event will not constitute a valid defense; he can still be held liable.
Idem; Essential conditions. — There are several essential
conditions which must concur in order that the general rule stated
in Art. 1174 can be applied. These conditions are: first, that the event
must be independent of the will of the obligor; second, that the event
must be either unforeseeable or inevitable; third, that the event must
be of such a character as to render it impossible for the obligor to
fulfill his obligation in a normal manner; and fourth, that the obligor
must be free from any participation in the aggravation of the injury
resulting to the obligee or creditor.120 In other words, there must
be an entire exclusion of human agency from the cause of injury or
loss (Virginia Real vs. Sisenando H. Belo, G.R. No.146224, Jan. 26,
2007). In the Virginia Real vs. Sisenando case, the Court held that
it is established by evidence that the fire originated from leaking
fumes from the LPG stove and tank installed at petitioner’s fastfood
stall and her employees failed to prevent the fire from spreading
and destroying the other fastfood stalls. Such circumstances do not
support the petitioner’s theory of fortuitous event.
Hence, if the negligence of the obligor or debtor concurred
with the fortuitous event in bringing about the injury complained
of, the obligation is not extinguished. In other words, if the loss or
destruction of the object of the obligation was caused by an act of

115
See supra.
116
Reyes vs. Caltex, 47 Off. Gaz. 1193; Philippine Long Distance Co. vs. Jeturian,
97 Phil. 781.
117
Soriano vs. De Leon, 48 Off. Gaz. 2245.
118
Yu Tek Co. vs. Gonzales, 29 Phil. 384; Lacson vs. Diaz, 47 Off. Gaz. 337.
119
Bunje Corp. vs. Elena Camenforte & Co., 48 Off. Gaz. 3377.
120
5 Encyclopedia Juridica Española, 309 cited in Lasam vs. Smith, 45 Phil. 990.

88
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

God, with the negligence of the obligor or debtor mingling with it


as an active and cooperative cause, such obligor or debtor is still
responsible. In order to relieve such obligor or debtor of any liability,
the act of God or fortuitous event must not only be the proximate
cause of the loss or destruction, but the better opinion is that it
must be the sole cause. This doctrine, which is well established in
American law, was enunciated by the Supreme Court in the cases of
Tan Chiong Sian vs. Inchausti & Co.121 and Limpangco vs. Yangco
Steamship Co.122 and the latest of which is in Nakpil & Sons, et al.
vs. CA, et al., (144 SCRA 596). Thus, in the Tan Chiong case, the
Supreme Court declared:

“An act of God cannot be urged for the protection of a


person who has been guilty of gross negligence in not trying
to avert its result. One who has accepted responsibility to pay
cannot weakly fold his hand and say he was prevented from
meeting that responsibility by an act of God when the exercise
or ordinary care and prudence would have averted the results
flowing from the act. One who has placed the property of another,
entrusted to his care, in an unseaworthy craft, upon dangerous
waters, cannot absolve himself by crying ‘an act of God’ when
every effect which a typhoon produced upon that property could
have been avoided by the exercise of common care and prudence.
When the negligence of the carrier concurs with an act of God
in producing a loss, the carrier is not exempted from liability by
showing that the immediate cause of the damage was the act
of God; or, as it has been expressed, ‘when the loss is caused by
the act of God, if the negligence of the carrier mingles with it as
an active and cooperative cause, he is still liable.’ The loss and
damage to perishable articles in consequence of the weather will
not excuse the carrier if it could have been prevented by due
care and diligence. The carrier must not only show that it did all
that was usual, but all that was necessary to be done under the
circumstances. To be exempt from liability for loss because of an
act of God, the common carrier must be free from any previous
negligence or misconduct by which the loss or damage may have
been occasioned. For, although the immediate or proximate
cause of a loss in any given instance may have been what is
termed an act of God, yet if the carrier unnecessarily exposed
the property to such accident by a culpable act or omission of his
own he is not excused. In the case of Wolf vs. American Express

121
32 Phil. 152.
122
34 Phil. 597.

89
Art. 1174 OBLIGATIONS

Co., 43 Mo., 421, Wagner, J., said: ‘The act of God which excuses
the carrier must not only be the proximate cause of the loss; the
better opinion is that it must be the sole cause. And where the
carrier mingles with it as an active and cooperative cause, he is
still responsible.’ (Ames vs. Stevens, 1 Stra., 128.)”

Austria vs. Court of Appeals


39 SCRA 527

Defendant received from plaintiff a pendant with dia-


monds to be sold on commission basis or to be returned on de-
mand. In the evening of Feb. 1, 1961, while walking home, two
men snatched her purse containing the pendant. Subsequently,
the snatchers were apprehended and charged. During the pen-
dency of the criminal case, plaintiff brought an action against
defendant for recovery of the pendant or of its value and dam-
ages. The latter interposed the defense of fortuitous event, but
the former contended: (a) that the defense is untenable because
there was negligence on the part of the defendant; and (b) that
if the defense is tenable, nevertheless, there must be a prior
conviction for robbery before it can be availed of.
Held: Defendant is not liable. To constitute a caso fortuito
that would exempt a person from responsibility, it is necessary
(1) that the event must be independent of the will of the debtor;
(2) that it must be either unforeseeable or unavoidable; (3) that
the occurrence must render it impossible for the debtor to fulfill
the obligation in a normal manner; and (4) that the debtor must
be free of participation in, or aggravation of, the injury to the
creditor.
All of the above requisites or conditions are present in
this case. It is undeniable that in order to completely exonerate
the debtor by reason of a fortuitous event, such debtor must,
in addition to the casus itself, be free of any concurrent or
contributory fault or negligence. We believe, however, that
her act in traveling alone in the evening, carrying jewelry of
considerable value, cannot be considered as either concurrent or
contributory negligence. While it may be so considered now, we
are not persuaded that the same rule should obtain ten years
previously when the robbery in question took place, for at that
time criminality had not by far reached the levels attained in
the present day.
There is likewise no merit in the contention that to allow
the fact of robbery to be recognized in this case before conviction

90
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

is secured in the criminal action would prejudice the latter case,


or would result in inconsistency should the accused obtain an
acquittal or should the criminal case be dismissed. It must be
realized that a court finding that a robbery has happened would
not necessarily mean that those accused in the criminal action
would be found guilty of the crime; nor would a ruling that those
actually accused did not commit the robbery be inconsistent
with a finding that a robbery did take place. The evidence to
establish these facts would not necessarily be the same.

Vasquez vs. Court of Appeals


138 SCRA 553

Plaintiffs Pedro Vasquez and Soledad Ortega are the


parents of Alfonso Vasquez; plaintiffs Cleto Bagaipo and
Agustina Virtudes are the parents of Filipinas Bagaipo; and
plaintiffs Romeo Vasquez and Maximina Cainay are the parents
of the child, Mario Marlon Vasquez. They seek the recovery of
damages due to the loss of Alfonso Vasquez, Filipinas Bagaipo
and Mario Marlon Vasquez during said voyage.
At the pre-trial, the defendant admitted its contract of
carriage with Alfonso Vasquez, Filipinas Bagaipo and Mario
Marlon Vasquez, and the fact of the sinking of the MV ‘Pioneer
Cebu.’ The issues of the case were limited to the defenses alleged
by the defendant that the sinking of the vessel was caused
by force majeure, and that the defendant’s liability had been
extinguished by the total loss of the vessel.
The evidence on record as to the circumstances of the last
voyage of the MV ‘Pioneer Cebu’ came mainly, if not exclusively,
from the defendant. The MV ‘Pioneer Cebu’ was owned and
operated by the defendant and used in the transportation of
goods and passengers in the inter-island shipping. Scheduled to
leave the Port of Manila at 9:00 p.m. on May 14, 1966, it actually
left port at 5:00 a.m. the following day, May 15, 1966. It had a
passenger capacity of three hundred twenty-two (322) including
the crew. It undertook the said voyage on a special permit issued
by the Collector of Customs inasmuch as, upon inspection, it was
found to be without an emergency electrical power system. The
special permit authorized the vessel to carry only two hundred
sixty (260) passengers due to the said deficiency and for lack
of safety devices for 322 passengers (Exh. 2). A headcount was
made of the passengers on board, resulting on the tallying of 168
adults and 20 minors, although the passengers manifest only
listed 106 passengers. It has been admitted, however, that the

91
Art. 1174 OBLIGATIONS

headcount is not reliable inasmuch as it was only done by one


man on board the vessel.
When the vessel left Manila, its officers were already
aware of the typhoon Klaring building up somewhere in
Mindanao. There being no typhoon signals on the route from
Manila to Cebu, and the vessel having been cleared by the
Customs authorities, the MV ‘Pioneer Cebu’ left on its voyage
to Cebu despite the typhoon. When it reached Romblon island,
it was decided not to seek shelter thereat, inasmuch as the
weather condition was still good. After passing Romblon and
while near Jintotolo island, the barometer still indicated the
existence of good weather condition and this continued until the
vessel approached Tanguingui island. Upon passing the latter
island, however, the weather suddenly changed and heavy
rains fell. Fearing that due to zero visibility, the vessel might
hit the Chocolate island group, the captain ordered a reversal
of the course so that the vessel could ‘weather out’ the typhoon
by facing the winds and the waves in the open. Unfortunately,
at about noontime on May 16, 1966, the vessel struck a reef
near Malapascua Island, sustained leaks and eventually sunk,
bringing with her Captain Flor Yap who was in command of the
vessel.’’
Due to the loss of their children, petitioners sued for
damages before the Court of First Instance of Manila (Civil Case
No. 67139). Respondent defended on the plea of force majeure,
and the extinction of its liability by the actual total loss of the
vessel.
After proper proceedings the Trial Court awarded
damages, thus:
WHEREFORE, judgment is hereby rendered order-
ing the defendant to pay:
(a) Plaintiffs Pedro Vasquez and Soledad Ortega
the sums of P15,000.00 for the loss of earning capacity of
the deceased Alfonso Vasquez; P2,100.00 for support; and
P10,000.00 for moral damages;
(b) Plaintiffs Cleto B. Bagaipo and Agustina
Virtudes the sum of P17,000.00 for loss of earning capacity
of deceased Filipinas Bagaipo; and P10,000.00 for moral
damages; and
(c) Plaintiffs Romeo Vasquez and Maximina
Cainay the sum of P10,000.00 by way of moral damages
by reason of the death of Mario Marlon Vasquez.

92
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

On appeal, respondent Court reversed the aforementioned


judgment and absolved private respondent from any and all
liability.
Hence, this Petition for Review on Certiorari, the basic
issue being the liability for damages of private respondent for
the presumptive death of petitioners’ children.
The Trial Court found the defense of caso fortuito
untenable due to various decisive factors, thus:

“x x x It is an admitted fact that even before the


vessel left on its last voyage, its officers and crew were
already aware of the typhoon brewing somewhere in the
same general direction to which the vessel was going. The
crew of the vessel took a calculated risk when it proceeded
despite the typhoon advisory. This is quite evident from
the fact that the officers of the vessel had to conduct
conferences amongst themselves to decide whether or not
to proceed. The crew assumed a greater risk when, instead
of seeking shelter in Romblon and other islands the vessel
passed enroute, they decided to take a chance on the
expected continuation of the good weather the vessel was
encountering, and the possibility that the typhoon would
veer to some other directions. The eagerness of the crew
of the vessel to proceed on its voyage and to arrive at its
destination is readily understandable. It is undeniably
lamentable, however, that they did so at the risk of the
lives of the passengers on board.’’
Contrariwise, respondent Appellate Court believed that
the calamity was caused solely and proximately by fortuitous
event which not even extraordinary diligence of the highest
degree could have guarded against; and that there was no
negligence on the part of the common carrier in the discharge of
its duties.
Upon the evidence and the applicable law, we sustain the
Trial Court. “To constitute a caso fortuito that would exempt
a person from responsibility, it is necessary that: (1) the event
must be independent of the human will; (2) the occurrence
must render it impossible for the debtor to fulfill the obligation
in a normal manner; and that (3) the obligor must be free of
participation in, or aggravation of, the injury to the creditor.’’123

123
Lasam vs. Smith, 45 Phil. 657, 661 (1924); Austria vs. Court of Appeals, 39
SCRA 527 (1971).

93
Art. 1174 OBLIGATIONS

In the language of the law, the event must have been impossible
to foresee, or if it could be foreseen, must have been impossible
to avoid.124 There must be an entire exclusion of human agency
from the cause of injury or loss.125
Turning to this case, before they sailed from the port of
Manila, the officers and crew were aware of typhoon “Klaring’’
that was reported building up at 260 kms. east of Surigao. In
fact, they had lashed all the cargo in the hold before sailing in
anticipation of strong winds and rough waters.126 They proceeded
on their way, as did other vessels that day. Upon reaching
Romblon, they received the weather report that the typhoon
was 154 kms. east southeast of Tacloban and was moving west
northwest.127 Since they were still not within the radius of
the typhoon and the weather was clear, they deliberated and
decided to proceed with the course. At Jintotolo Island, the
typhoon was already reported to be reaching the mainland of
Samar.128 They still decided to proceed noting that the weather
was still “good’’ although, according to the Chief Forecaster of
the Weather Bureau, they were already within the typhoon
zone.129 At Tanguingui Island, about 2:00 A.M. of May 16, 1966,
the typhoon was in an area quite close to Catbalogan, placing
Tanguingui also within the typhoon zone. Despite knowledge of
that fact, they again decided to proceed relying on the forecast
that the typhoon would weaken upon crossing the mainland
of Samar.130 After about half an hour of navigation towards
Chocolate Island, there was a sudden fall of the barometer
accompanied by heavy downpour, big waves, and zero visibility.
The Captain of the vessel decided to reverse course and face the
waves in the open sea but because the visibility did not improve
they were in total darkness and, as a consequence, the vessel
ran aground a reef and sank on May 16, 1966 around 12:45 P.M.
near Malapascua island somewhere north of the island of Cebu.
Under the circumstances, while, indeed, the typhoon was
an inevitable occurrence, yet, having been kept posted on the
course of the typhoon by weather bulletins at intervals of six
hours, the captain and crew were well aware of the risk they

124
Art. 1174, Civil Code; Lasam vs. Smith, 45 Phil. 657 (1924).
125
Tolentino, Commentaries on the Civil Code, Vol. V, p. 252.
126
T.s.n, August 8, 1967, p. 22.
127
Domestic Bulletin No. 16 of the Weather Bureau.
128
Domestic Bulletin, No. 17.
129
T.s.n., December 15, 1967, p. 21.
130
Domestic Bulletin, No. 18.

94
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

were taking as they hopped from island to island from Romblon


up to Tanguingui. They held frequent conferences, and oblivious
of the utmost diligence required of very cautious persons,131
they decided to take a calculated risk. In so doing, they failed to
observe that extraordinary diligence required of them explicitly
by law for the safety of the passengers transported by them with
due regard for all circumstances132 and unnecessarily exposed
the vessel and passengers to the tragic mishap. They failed to
overcome that presumption of fault or negligence that arises in
case of death or injuries to passengers.133
While the Board of Marine Inquiry, which investigated
the disaster, exonerated the captain from any negligence, it was
because it had considered the question of negligence as “moot
and academic,” the captain having “lived up to the true tradition
of the profession.” While we are bound by the Board’s factual
findings, we disagree with its conclusion since it obviously had
not taken into account the legal responsibility of a common
carrier towards the safety of the passengers involved.
With respect to private respondent’s submission that the
total loss of the vessel extinguished its liability pursuant to
Article 587 of the Code of Commerce134 as construed in Yangco
vs. Laserna, 73 Phil. 330 (1941), suffice it to state that even in
the cited case, it was held that the liability of a shipowner is
limited to the value of the vessel or to the insurance thereon.
Despite the total loss of the vessel therefore, its insurance
answers for the damages that a shipowner or agent may be held
liable for by reason of the death of its passengers.
WHEREFORE, the appealed judgment is hereby
REVERSED and the judgment of the then Court of First
Instance of Manila, Branch V, in Civil Case No. 67139, is hereby
reinstated. No costs.
SO ORDERED.

131
Arts. 1755, 1756, Civil Code.
132
Art. 1733, Ibid.
133
Art. 1756, Ibid.
134
“Art. 587. The ship agent shall also be civilly liable for the indemnities in fa-
vor of third persons which may arise from the conduct of the captain in the vigilance
over the goods which the vessel carried; but he may exempt himself therefrom by
abandoning the vessel with all her equipments and the freight he may have earned
during the voyage.’’

95
Art. 1174 OBLIGATIONS

Idem; Exceptions. — There are, however, exceptions to the


rule that the obligor or debtor cannot be held liable in case of his
inability to comply with his obligation by reason of a fortuitous
event. They are: first, where such liability is expressly specified by
law; second, where it is declared by stipulation of the parties; and
third, where the nature of the obligation requires the assumption of
risk.135
The first exception may be illustrated by provisions of the Civil
Code, such as those found in Arts. 552, par. 2, 1165, par. 3, 1268,
1942, 1979, 2147, 2148, and 2159.
Assumption of risk, on the other hand, ordinarily requires
knowledge and appreciation of the risk and a voluntary choice
to encounter it. As applied to obligations, it refers to a situation
in which the obligor or debtor, with full knowledge of the risk
voluntarily enters into some relation with the obligee or creditor.
It is based on the doctrine of volenti non fit injuria — no wrong
is done to one who consents.136 Hence, if the obligor enters into
an obligation which by its very nature involves the assumption
of risks, he shall be liable to the obligee for breach even in case of
fortuitous events. This is illustrated by obligations arising from
insurance contracts and workmen’s compensation acts. To a certain
extent, it is also illustrated by obligations of common carriers.137 The
liability of a common carrier which is for public service, however,
should be limited to those risks which are typical of the business;
it cannot extend to those which are not typical, such as lightning or
earthquake causing injury to a passenger.138

Problem — A received from X a pendant with diamonds


valued at P4,500 to be sold on commission basis or to be re-
turned on demand. In the evening of Feb. 1, 1961, while walking
home to her residence, two men snatched her purse containing
the pendant and ran away. Subsequently, the snatchers were
apprehended and charged. During the pendency of the criminal
case, X brought an action against A for recovery of the pendant
or of its value and damages. The latter interposed the defense

135
Art. 1174, Civil Code.
136
Prosser on Torts, pp. 377-378.
137
Art. 1733, et seq., Civil Code.
138
4 Tolentino, Civil Code, 1956 Ed., p. 123.

96
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

of fortuitous event, but the former contends: (a) that the defense
of fortuitous event is untenable because there was negligence on
the part of the defendant; and (b) that if the defense is tenable,
nevertheless, there must be a prior conviction for robbery before
it can be availed of. Decide the case.
Answer — The factual setting of the above problem is
identical to that of Austria vs. CA 39 SCRA 527. In that case,
the Supreme Court held that defendant is not liable.
To constitute a caso fortuito that would exempt a person
from responsibility, it is necessary: (1) that the event must
be independent of the will of the debtor; (2) that it must be
either unforeseeable or unavoidable; (3) that the occurrence
must render it impossible for the debtor to fulfill the obligation
in a normal manner; and (4) that the debtor must be free of
participation in, or aggravation of the injury to the creditor.
All of the above requisites or conditions are present in
this case. It is undeniable that in order to completely exonerate
the debtor by reason of a fortuitous event, such debtor must,
in addition to the casus itself, be free of any concurrent or
contributory fault or negligence. We believe, however, that
her act in travelling alone in the evening, carrying jewelry of
considerable value, cannot be considered as either concurrent or
contributory negligence. While it may be so considered now, we
are not persuaded that the same rule should obtain ten years
previously when the robbery in question took place, for at that
time criminality had not by far reached the levels attained in
the present day.
There is likewise no merit in the contention that to allow
the fact of robbery to be recognized in this case before conviction
is secured in the criminal action, would prejudice the latter case,
or would result in inconsistency should the accused obtain an
acquittal or should the criminal case be dismissed. It must be
realized that a court finding that a robbery has happened would
not necessarily mean that those accused in the criminal action
would be found guilty of the crime; nor would a ruling that those
actually accused did not commit the robbery be inconsistent
with a finding that a robbery did take place. The evidence to
establish these facts would not necessarily be the same.
Problem — A barge belonging to the Luzon Stevedoring
Corporation, while passing under the Nagtahan Bridge in
Manila, rammed the bridge supports causing damage thereto.
In this action for damages instituted by the Government against
the defendant corporation, the latter interposed the defense

97
Art. 1174 OBLIGATIONS

that there was no negligence or fault on its part and that the
proximate cause of the accident was a fortuitous event. Decide
the case.
Answer — As far as the negligence of the defendant
corporation is concerned, it is clear that the doctrine of res ipsa
loquitur is applicable. It is undeniable that the unusual event
that the barge, exclusively controlled by defendant, rammed the
bridge supports raises a presumption of negligence on the part
of defendant or its employees manning the barge or the tugs
that towed it. In the ordinary course of events, such a thing does
not happen if proper care is used.
As far as the defense of fortuitous event is concerned, caso
fortuito by definition refers to those extraordinary events not
foreseeable or avoidable, “events that could not be foreseen,
or which though foreseen, were inevitable.” (Art. 1174, NCC.)
It is, therefore, not enough that the event could not have been
foreseen or anticipated, as is commonly believed, but it must
be one impossible to foresee or to avoid. The mere difficulty to
foresee the happening is not impossible to foresee the same.
Hence, the proximate cause of the accident cannot be classified
as a fortuitous event. Consequently, defendant is liable. (Rep. of
the Phil. vs. Luzon Stevedoring Corp., 21 SCRA 279.)
Problem — A was injured while he was a passenger in
a bus operated by X Co. The proximate cause of the accident
was the failure of the steering knuckle to work causing the
driver to lose control of the wheel as a result of which the bus
fell into a ditch. Can the operator now relieve itself of liability
by claiming that the real cause of the accident was a fortuitous
event? Suppose that the proximate cause of the accident was a
tire blowout, would that make a different in your answer?
Answer —The operator cannot relieve itself of liability by
claiming that the real cause of the accident was a fortuitous
event. The weight of authority sustains the view that a
passenger is entitled to recover damages from the carrier for
an injury resulting from a defect in an equipment purchased
from a manufacturer, unless extraordinary diligence has
been exercised with regard to inspection and application
of the necessary tests. For the purpose of this doctrine, the
manufacturer is considered in law the agent of the carrier. The
rationale of the carrier’s liability is that the passenger has no
privity with the manufacturer and, therefore, has no remedy
whatever against him, while the carrier usually has. (Necesito
vs. Paras, 104 Phil. 75.) If the proximate cause of the accident

98
NATURE AND EFFECT OF OBLIGATIONS Art. 1174

is a tire blowout, that will not make a difference in my answer


so long as it can be established that the bus involved in the
accident was running fast immediately before the accident and
that the cause of the blowout could have been discovered if the
bus had been subjected to a more rigid check-up before its use.
This was the doctrine enunciated in La Mallorca vs. De Jesus
(17 SCRA 23).
(Note: The question of whether or not a defective part of
a vehicle, such as a defective brake, or a tire blowout can be
classified per se as a fortuitous event was again taken up by
the SC in Tugade vs. CA , 85 SCRA 226. In this case, a Holden
car was badly damaged when it was bumped from behind by a
Blue Car Taxi driven by petitioner. The latter admits that the
accident was caused by the faulty brakes of the taxicab but he
contends that the sudden malfunctioning of the brakes at that
particular moment before the accident was something which
even the due diligence of a good father of a family could not
have prevented. Consequently, the cause of the accident is a
fortuitous event. He then invokes a long line of decisions of the
CA in order to support his theory.
Speaking through Justice [now deceased Chief Justice]
Fernando, the SC declared that the primary reason why the
petition was given due course was to clarify the state of the
law and thus hopefully avoid any further lurking doubt on the
matter.
Speaking of the decisions of the CA cited by petitioner in
support of his theory, the SC reminded the petitioner of what
Justice J.B.L. Reyes once said that “the SC, by tradition and in
our system of judicial administration, has the last word on what
the law is; it is the final arbiter of any justiciable controversy.
There is only one SC from whose decisions all other courts
should take their bearings.’’
Speaking of the merits of the theory of petitioner, the SC
finally held that the doctrine enunciated in La Mallorca vs. De
Jesus [17 SCRA 23], Lasam vs. Smith [45 Phil. 657], Son vs.
Cebu Autobus Co. [94 Phil. 892], and Necesito vs. Paras [104
Phil. 75] controls. Defective brakes, tire blowouts and others of
a similar nature cannot be classified as fortuitous events per se
within the meaning of the law.
Problem — What are the exceptions to the rule that the
obligor or debtor cannot be held liable for breach of the obligation
by reason of a fortuitous event? Illustrate.

99
Art. 1174 OBLIGATIONS

Answer — The exceptions to the rule that the obligor


or debtor cannot be held liable for breach of the obligation by
reason of a fortuitous event are as follows:
(1) Where such liability is expressly specified by the
law. This may be illustrated by provisions of the NCC, such as
those found in Arts. 552, par. 2, 1165, par. 3, 1268, 1942, 1979,
2147, 2148, and 2159, NCC.
(2) Where such liability is declared by stipulation of the
parties. Thus, if the contracting parties expressly agree that the
debtor can be held liable even in case of fortuitous events, such
an agreement shall be binding.
(3) Where the nature of the agreement requires the
assumption of risk. This is an aspect of what is known as the
doctrine of assumption of risk. As applied to obligations, it refers
to a situation in which the obligor or debtor, with full knowledge
of the risk, voluntarily enters into some obligatory relation with
the creditor or obligee. It is based on the principle of volenti
non fit injuria — no wrong is done to one who consents. This is
illustrated by obligations arising from insurance contracts and
workmen’s compensation acts.
Problem — Cite three instances where a person is made
civilly liable for failure to comply with his obligations although
he was prevented from doing so by a fortuitous event. (1983)
Answer —In the following instances, a person is still civilly
liable for failure to comply with his obligation although he was
prevented from doing so by a fortuitous event:
(1) When by law, the debtor is liable even for fortuitous
events;
(2) When by stipulation of the parties, the debtor is
liable even for fortuitous events;
(3) When the nature of the obligation requires the
assumption of risk;
(4) When the object of the obligation is lost and the loss
is due partly to the fault of the debtor;
(5) When the object of the obligation is lost and the loss
occurs after the debtor has incurred in delay;
(6) When the debtor promised to deliver the same thing
to two or more persons who do not have the same interest;
(7) When the obligation to deliver arises from a criminal
offense; and

100
NATURE AND EFFECT OF OBLIGATIONS Art. 1175

(8) When the obligation is generic.


(Note: Any 3 of the 8 should be a correct answer. Nos. 1, 2
and 3 are based on Arts. 1174 and 1262, NCC; Nos. 4, 5, and 6
are based on Arts. 1165 and 1262, NCC; while Nos. 7 and 8 are
based on Arts. 1268 and 1263, NCC.)
Problem — Jacinto Tanguilig constructed a windmill sys-
tem for Vicente Herce, Jr. for P60,000 with a one-year guaranty.
Herce made a downpayment of P30,000 and an installment pay-
ment of P15,000, leaving a balance of P15,000. He refused to
pay the balance because the windmill system collapsed after a
strong wind hit the place. Is Tanguilig exempt from liability due
to fortuitous event?
Answer — No. In order for a party to claim exemption from
liability due to fortuitous event, one requisite is that the event
must be either unforeseeable or unavoidable. A strong wind in
this case cannot be fortuitous, unforeseeable, or unavoidable.
On the contrary, a strong wind should be present in places
where windmills are constructed, otherwise the windmills will
not turn. Given the newly-constructed windmill system, the
same would not have collapsed had there been no inherent
defect in it which could only be attributable to Tanguilig. When
the windmill failed to function properly, it became incumbent
upon Tanguilig to repair it in accordance with his guaranty and
bear the expenses therefor. (Tanguilig vs. CA and Herce, G.R.
No. 117190, Jan. 2, 1997).)

Art. 1175. Usurious transactions shall be governed by


special laws.139
Usurious Transactions. — Usury may be defined as
contracting for or receiving something in excess of the amount
allowed by law for the loan or forbearance of money, goods or
chattels. It is the taking of more interest for the use of money, goods
or chattels or credit than the law allows.140
The special laws referred to in Art. 1175 are the Usury Law
(Act No. 2655) and the different laws amending it.141

139
New Provision.
140
Tolentino vs. Gonzales, 50 Phil. 558.
141
See comments under Art. 1413, infra.

101
Art. 1176 OBLIGATIONS

Note: Prior to January 1, 1983 and under the Treasury Laws,


no person shall receive a rate of interest, including commissions,
premiums, fines and penalties, higher than 12% per annum or the
maximum rate prescribed by the Monetary Board for a loan secured
by a mortgage upon real estate the title to which is duly registered.
Under Central Bank (CB) Circular No. 905, which became effective
on Jan. 1, 1983, whereby the Monetary Board is authorized to fix
interest rates, the ceiling rates under the Usury law [Act No. 2655,
as amended by P.D. No. 116] have been abolished.
It should be noted that Circular No. 905 did not repeal nor
in any way amend the Usury Law but simply suspended the
latter’s effectivity. The legislation of usury is wholly the creature of
legislation. A CB Circular cannot repeal a law. Only a law can repeal
another law. Thus, retroactive application of a CB Circular cannot,
and should not, be presumed. (Development Bank of the Philippines
vs. Perez, G.R. No. 148541, Nov. 11, 2004.)

Art. 1176. The receipt of the principal by the creditor,


without reservation with respect to the interest, shall give
rise to the presumption that said interest has been paid.
The receipt of a later installment of a debt without
reservation as to prior installments, shall likewise raise the
presumption that such installments have been paid.142

Extinguishment of Interests and Prior Installments. —


According to the first paragraph of Art. 1176, if the debtor is issued a
receipt by the creditor and on the face of the receipt it is shown that
the principal has been paid without any reservation with respect to
the interest, there arises a disputable presumption that the interest
has also been paid. This is in conformity with the rule that if the
debt produces interest, payment of the principal shall not be deemed
to have been made until the interests have been covered.143
According to the second paragraph, if the debtor is issued
a receipt by the creditor acknowledging payment of a latter
installment of a specified debt without any reservation with respect

Art. 1110, Spanish Civil Code, in modified form.


142

Art. 1253, Civil Code; Hill vs. Veloso, 31 Phil. 160; Vda. de Ongsiaco vs. Cabat-
143

uando, 105 Phil. 1262.

102
NATURE AND EFFECT OF OBLIGATIONS Art. 1177

to prior installments, there also arises a disputable presumption


that such prior installments have already been paid. This rule is
in conformity with the rule stated in Rule 131, Sec. 5, subsec. (i),
of the New Rules of Court. Thus, in the case of a lease of a certain
property, such as, let us say, an apartment, if the lessor gives a
receipt to the lessee acknowledging payment of the rental for the
month of November without any reservation as to the rentals for
the months of September and October which are not yet paid, there
arises a presumption that such rentals have already been paid.
This presumption, however, can be properly rebutted by competent
evidence to the contrary.

Art. 1177. The creditors, after having pursued the prop-


erty in possession of the debtor to satisfy their claims, may
exercise all the rights and bring all the actions of the latter
for the same purpose, save those which are inherent in his
person; they may also impugn the acts which the debtor may
have done to defraud them.144

Remedies of Creditor To Protect Credit. — Under Art.


1177, there are three general remedies which are available to the
creditor for the protection and enforcement of his right against the
debtor. They are: first, to exhaust the property in possession of the
debtor; second, to be subrogated to all of the rights and actions of
the debtor save those which are inherent in his person; and third,
to impugn all of the acts which the debtor may have done to defraud
him. The second and third, however, are subsidiary to the first.
Idem; Exhaustion of debtor’s property. — The principal
remedy of the creditor to protect and enforce his credit is to exhaust
all properties in the possession of the debtor. This remedy is in
conformity with the rule stated in Art. 2236 of the Civil Code which
states that the debtor is liable with all his property, present and
future, for the fulfillment of his obligations subject to the exemptions
provided by law. The exemptions referred to are found in Sec. 12,
Rule 39 of the New Rules of Court, Sec. 118 of the Public Land Law
(Com. Act No. 141), and in scattered provisions of the Civil Code,
such as Arts. 223, 232, 243, 302 and 1708.

144
Art. 1111, Spanish Civil Code.

103
Art. 1177 OBLIGATIONS

Idem; Accion subrogatoria. — Actually, the debtor may


defeat the right of the creditor by mere omission or inaction. In other
words, he may simply fail, or neglect, or refuse to collect any credit
which he may have against a third person. In order to prevent this,
the law expressly grants to the creditor the right to exercise all of
the rights and bring all of the actions which the debtor may have
against third persons. This right or remedy is sometimes known
in Spanish law as accion subrogatoria. It must be noted that the
property of the debtor which can be attached or exhausted for the
payment of his debts may consist of corporeal as well as incorporeal
properties. It may happen, however, that his corporeal or tangible
properties may not be sufficient to pay all of his debts, but his
incorporeal or intangible properties may be more than sufficient.
Such properties may be in the form of rights and actions against
third persons. Because of his inaction or his failure to proceed
against such third persons, his own creditors are prejudiced. Hence,
in order to prevent this, the law expressly recognizes the right of a
creditor to proceed against such third persons invested as it were
with the personality of the debtor.145 But certain conditions must
be present before the creditor can avail of this remedy. In the first
place, the debtor to whom the right or action properly pertains must
be indebted to the creditor; in the second place, the latter must be
prejudiced by the inaction or failure of the debtor to proceed against
the third person; and in the third place, the creditor must have first
pursued or exhausted all of the properties of the debtor which are not
exempted from execution. When all of these conditions are present,
the creditor can then proceed directly against the third person in
place of the debtor.146
Attention must be called to the fact that this right is different
from legal and conventional subrogations which will be taken up in a
subsequent chapter. The latter involves a change of creditors, while
the former does not. In accion subrogatoria, the creditor merely acts
in the name and for the account of the debtor after exhausting all of
the assets of the latter.147
The right of the creditor to exercise all of the rights and to
bring all of the actions of the debtor against third persons is, howev-

145
Castan, 7th Ed., pp. 173-174; 2 De Diego 35.
146
2 De Diego, 35-36; 3 Castan, 7th Ed., pp. 175-176.
147
3 Castan, 7th Ed., p. 174; 8 Manresa, 5th Ed., Bk. 1, p. 272.

104
NATURE AND EFFECT OF OBLIGATIONS Art. 1178

er, subject to one very important exception. Rights which are purely
personal in the sense that they are inherent in the person of the
debtor, such as rights arising from purely personal or family rela-
tions or those which are public or honorary in character, cannot be
included within the scope of this remedy.148
Idem; Accion pauliana. — Another method by which the
debtor may defeat the right of the creditor is by means of a positive act
whereby the latter is defrauded or prejudiced. This may be illustrated
by alienations or conveyances of property made by the debtor to
third persons in fraud of creditors. According to Art. 1177, such acts
can be impugned or attacked directly by means of a rescissory action
at the instance of the creditors who are prejudiced.149 This action is
sometimes known as accion pauliana in Spanish law. As in the case
of accion subrogatoria, it is based on the principle that the property
of the debtor, whether present or future, stands as a guaranty for
the payment of the obligation or credit. Accion pauliana, therefore,
refers to the right available to the creditor by virtue of which he can
secure the rescission of any act of the debtor which is in fraud and
to the prejudice of his rights as a creditor. By its very nature, it is
subsidiary in character.150 In other words, it can only be availed of
in the absence of any other legal remedy to obtain reparation for the
injury.151

Art. 1178. Subject to the laws, all rights acquired in


virtue of an obligation are transmissible, if there has been
no stipulation to the contrary.152
Transmissibility of Rights. — Rights of obligations or
those rights which are acquired by virtue of an obligation are as
a general rule transmissible in character. Consequently, they may
be alienated or assigned to third persons. There are, however,
several exceptions to this rule. They are: first, where they are
not transmissible by their very nature, such as in the case of a
purely personal right; second, where there is a stipulation of the
parties that they are not transmissible; and third, where they

148
8 Manresa, 5th Ed., Bk. 1, p. 267.
149
This rescissory action is regulated by Arts. 1380-1389, Civil Code.
150
Art. 1383, Civil Code.
151
2 Diego, 37-38.
152
Art. 1112, Spanish Civil Code.

105
Art. 1178 OBLIGATIONS

are not transmissible by operation of law.153 It must be observed,


however, that intransmissibility by stipulation of the parties, being
exceptional and contrary to the general rule, should not be easily
implied, but must be clearly established, or at the very least, clearly
inferable from the provisions of the contract itself.154

153
Arts. 1178, 1311, Civil Code.
154
Estate of Hernandez vs. Luzon Surety Co., 100 Phil. 388.

106
CHAPTER 3

DIFFERENT KINDS OF OBLIGATIONS

Section 1. — Pure and Conditional Obligations

Art. 1179. Every obligation whose performance does


not depend upon a future or uncertain event, or upon a past
event unknown to the parties, is demandable at once.
Every obligation which contains a resolutory condition
shall also be demandable, without prejudice to the effects of
the happening of the event.1
Art. 1180. When the debtor binds himself to pay when his
means permit him to do so, the obligation shall be deemed
to be one with a period, subject to the provisions of Article
1197.2

Pure Obligations. — The effects as well as the concept of


pure obligations are contained in the formula which is given in the
first paragraph of Art. 1179, although, as Castan says, the concept
is incomplete because it only excludes the condition and not the
term.3 Using the provision as a basis and bearing in mind this
criticism, we can, therefore, define a pure obligation as one whose
effectivity or extinguishment does not depend upon the fulfillment
or nonfulfillment of a condition or upon the expiration of a term or
period, and which, as a consequence, is characterized by the quality
of immediate demandability.
The distinctive characteristic of a pure obligation is its imme-
diate demandability. This quality, however, must not be understood

1
Art. 1113, Spanish Civil Code.
2
New provision.
3
3 Castan, 7th Ed., p. 104.

107
Arts. 1179-1180 OBLIGATIONS

in such a way as to lead to absurd interpretations which would lit-


erally require the obligor or debtor to comply immediately with his
obligation. A distinction must be made between the immediate de-
mandability of the obligation and its performance or fulfillment by
the obligor or debtor. Although the obligee or creditor can demand
the performance of the obligation immediately, the quality of imme-
diate demandability is not infringed or violated when a reasonable
period is granted for performance.4 Thus, where the debtor had ex-
ecuted a simple and unconditional promissory note promising to pay
a certain indebtedness to the creditor without fixing any particular
date for payment, it was held that the obligation is pure and that,
although the creditor can demand for the payment of the same im-
mediately, a reasonable period of grace, which in this case was fixed
at ten days after the obligation was contracted, should be given to
the debtor within which to pay.5
Conditional Obligations. — In its juridical sense, a condi-
tion may be defined as a future and uncertain fact or event upon
which an obligation is subordinated or made to depend. A condi-
tional obligation may, therefore, be defined as one whose effectivity
is subordinated to the fulfillment or nonfulfillment of a future and
uncertain fact or event.6
Although the first paragraph of Art. 1179 would seem to
indicate that either the requisite of futurity or uncertainty would be
sufficient in order that the event upon which the performance of the
obligation shall depend will be considered a condition, it is, however,
essential that both requisites must concur. In other words, the event
must not only be future, but it must also be uncertain. The reason
why the disjunctive term is used is that said paragraph is intended
primarily as a definition of a pure obligation using the process of
exclusion. Hence, it must exclude not only conditional obligations,
but also obligations with a term.7
From the literal text of the first paragraph of Art. 1179, it
seems that a past but uncertain event is also considered a condition.

4
8 Manresa, 5th Ed., Bk 1, pp. 305-306.
5
Floriano vs. Delgado, 11 Phil. 154; for other cases — see People’s Bank vs.
Odom, 64 Phil. 128; Galar vs. Isasi; Aberri vs. Galar, CA, 47 Off. Gaz. 6241.
6
8 Manresa, 5th Ed., Bk 1, p. 309.
7
Ibid., pp. 309-310.

108
DIFFERENT KINDS OF OBLIGATIONS Arts. 1179-1180
Pure and Conditional Obligations

This is not, however, accurate. The event itself can never constitute
a condition because in order that it can be classified as such, the
requisites of futurity and uncertainty must be present. But the proof
or ascertainment of the fact or event, as distinguished from the fact
or event itself, may constitute either a condition or a term depending
upon the circumstances of each case.
Thus, if the proof or ascertainment of the fact or event will
surely come to pass, although it may not be known when, it is clear
that it constitutes a term or period, such as when A promises to pay
B a certain sum of money if the latter can prove by proper authorities
that the Civil Code of the Philippines took effect on Aug. 30, 1950. In
such case, the requisites of futurity and certainty in order that a fact
or event shall constitute a term or period are certainly present. On
the other hand, if the past event is unknown to the parties as well as
to the whole world, so that the proof or ascertainment thereof may or
may not happen or come to pass, it is also clear that it constitutes a
condition, such as when A promises to pay B a certain sum of money
if the latter can prove by proper evidence that Rizal did not retract
Freemasonry, or that a priest broke the seal of the confessional in
order to reveal the secret of the Katipunan.
However, when the debtor binds himself to pay when his means
permit him to do so, the obligation shall be deemed to be one with
a period, subject to the provisions of Art. 1197.8 Consequently, the
courts shall determine such period as may under the circumstances
have been probably contemplated by the parties. Once fixed by the
courts, the period cannot be changed by them.9 Thus, it has been
held that if it is stipulated by the contracting parties that the debtor
shall pay “as soon as he has the money,” the creditor’s remedy is
to resort to the courts for the determination of the duration of the
period in accordance with the provisions of Art. 1197 of the Code.10
Idem; Classification of conditions. — Conditions are
traditionally classified as follows:

(1) a. Suspensive — when the fulfillment of the condition results


in the acquisition of rights arising out of the obligation.

8
Art. 1197, Civil Code.
9
Art. 1180, Civil Code.
10
Patente vs. Omega, 49 Off. Gaz. 4846.

109
Arts. 1179-1180 OBLIGATIONS

b. Resolutory — when the fulfillment of the condition


results in the extinguishment of rights arising out of the
obligation.
(2) a. Potestative — when the fulfillment of the condition
depends upon the will of a party to the obligation.
b. Casual — when the fulfillment of the condition depends
upon chance and/or upon the will of a third person.
c. Mixed — when the fulfillment of the condition depends
partly upon the will of a party to the obligation and partly
upon chance and/or the will of a third person.
(3) a. Possible — when the condition is capable of realization
according to nature, law, public policy or good customs.
b. Impossible — when the condition is not capable of
realization according to nature, law, public policy or good
customs.
(4) a. Positive — when the condition involves the performance
of an act.
b. Negative — when the condition involves the omission of
an act.
(5) a. Divisible — when the condition is susceptible of partial
realization.
b. Indivisible — when the condition is not susceptible of
partial realization.
(6) a Conjunctive — when there are several conditions, all of
which must be realized.
b. Alternative — when there are several conditions, but only
one must be realized.
(7) a. Express — when the condition is stated expressly.
b. Implied — when the condition is tacit.11

11
8 Manresa, 5th Ed., Bk. 1, pp. 323-324.

110
DIFFERENT KINDS OF OBLIGATIONS Art. 1181
Pure and Conditional Obligations

Art. 1181. In conditional obligations, the acquisition of


rights, as well as the extinguishment or loss of those already
acquired, shall depend upon the happening of the event
which constitutes the condition.12
Suspensive and Resolutory Conditions. — A suspensive
condition (condition precedent) is a future and uncertain event
upon the happening or fulfillment of which rights arising out
of the obligation are acquired. Stated in another way, it signifies
a future and uncertain event upon the fulfillment of which the
obligation becomes effective. Hence, when the obligation depends
upon a suspensive condition, the acquisition of rights by the obligee
or creditor is subordinated to the fulfillment of the event which
constitutes the condition. In other words, the birth or effectivity of
the obligation is suspended until the happening or fulfillment of the
event which constitutes the condition. Thus, if A obligates himself
to give to B P100,000 if the latter gets married to C, the condition is
suspensive in character. In such case, B cannot acquire the P100,000
unless he gets married to C. If X obligates himself to give to Y a
certain house and lot if the latter passes the bar examinations in
his first attempt, the condition is also suspensive in character. He
cannot acquire the house and lot unless the condition is fulfilled.
It is, therefore, evident that when the obligation is subject to a
suspensive condition, its birth or effectivity can take place only if
and when the event which contitutes the condition happens or is
fulfilled. Thus, the Supreme Court, in the case of Javier vs. Court
of Appeals (183 SCRA 172) held that when a contract is subject to
a suspensive condition, its birth or effectivity can take place only if
and when the event which constitutes the condition happens or is
fulfilled. If the suspensive condition does not take place, the parties
would stand as if the conditional obligation had never existed.
A resolutory condition (condition subsequent), on the other hand,
is a future and uncertain event upon the happening or fulfillment of
which rights which are already acquired by virtue of the obligation
are extinguished or lost. Hence, when the obligation is subject to a
resolutory condition, the juridical relation which is established as a
result of the obligation is subject to the threat of extinction. Thus, if
a person donates a parcel of land to the City of Manila subject to the

12
Art. 1114, Spanish Code.

111
Art. 1181 OBLIGATIONS

condition that the City shall transform it into a public park within
a period of one year from the time of the perfection of the donation,
the condition which is imposed is resolutory in character. If the City
fails to transform the land into a public park within the stipulated
period, the rights which it acquired over the land as a result of the
donation are resolved or extinguished altogether. The same is true
in case a person sells a parcel of land with right of repurchase. Once
the sale with pacto de retro is perfected, the vendee a retro becomes
the owner of the property. However, his right is not absolute in
character because it may be extinguished or lost if the vendor a
retro exercises his right of repurchase within the legal or stipulated
period of redemption.
Idem; Effects. — It is, therefore, clear from what had been
stated that if an obligation is subject to a suspensive condition, the
acquisition of rights shall depend upon the happening or fulfillment
of the fact or event which constitutes the condition.13 In other words,
the obligation shall become effective only upon the fulfillment of
the condition. Consequently, what is acquired by the obligee or
creditor upon the constitution of the obligation is only a mere hope
or expectancy. Unlike other hopes or expectancies, however, it is
protected by the law.14
On the other hand, if the obligation is subject to a resolutory
condition, it becomes demandable immediately after its establishment
or constitution. This is evident from the provision of the second
paragraph of Art. 1179. Consequently, unlike an obligation with a
suspensive condition, rights arising out of the obligation are acquired
immediately and vested in the obligee or creditor.15 However, this
is without prejudice to the happening or fulfillment of the event
which constitutes the condition. In other words, although rights are
immediately vested in the obligee or creditor upon the constitution of
the obligation, such rights are always subject to the threat or danger
of extinction. Thus, in the case of a sale with pacto de retro, the
vendee a retro becomes the owner of the property which is sold once
it is delivered to him. This right of ownership, however, is subject

13
Art. 1181, Civil Code; for illustrative cases, see Wise & Co. vs. Kelly, 37 Phil.
696; Santiago vs. Millar, 68 Phil. 39; Phil. Nat. Bank vs. Phil. Trust Co., 68 Phil. 48;
Panganiban vs. Batangas Trans. Co., CA, 46 Off. Gaz. 3167.
14
Art. 1188, Civil Code; Phil. Long Distance Co. vs. Jeturian, 97 Phil. 981.
15
Art. 1181, Civil Code.

112
DIFFERENT KINDS OF OBLIGATIONS Art. 1181
Pure and Conditional Obligations

to a resolutory condition. If the vendor a retro exercises his right of


repurchase within the period of redemption, the right of the vendee
a retro over the property is extinguished; if he does not, the right is
consolidated.16

Problem — On June 5, 1960, DP delivered possession of


his house and lot in the Poblacion of Polo, Bulacan to AB who in
turn delivered to the former possession of his 2-hectare rice land.
Both properties were unregistered. They executed a document
entitled “Barter’’ which, among others, provided that both
parties shall enjoy the material possession of their respective
properties: that neither party shall encumber, alienate or
dispose of their respective properties as bartered without the
consent of the other; and that DP shall be obliged to return
the property to AB when the latter’s son shall attain majority
and decide to return DP’s property. After AB’s death and his
son S attained majority in 1977, the latter demanded for the
return of the 2 hectares of rice land which had then increased
tremendously in value. DP refused and so S filed an action for
recovery of the land. Will the action prosper? Why? (1979 Bar
Problem)
Answer — Yes, the action will prosper. The stipulations
in the barter agreement are clear. All that the parties intended
was to transfer the material possession and use of the subject
properties to the other. There was, therefore, no conveyance of
their right of ownership. In fact, the parties retained their rights
to alienate their right of ownership, a right which is one element
of ownership. What was, therefore, transferred was merely their
right of usufruct. But then, the document also says that DP
shall be obliged to return the property to AB when the latter’s
son shall attain majority and decide to return DP’s property.
The mutual agreement, therefore, was subject to a resolutory
condition the happening of which would extinguish or terminate
their right of usufruct over the subject properties. The facts are
clear. Said condition has already been fulfilled. (Baluran vs.
Navarro, 79 SCRA 309.)

It is, therefore, evident that a resolutory condition affects the


obligation to which it is attached in a manner which is diametrically
opposed to that of a suspensive condition. If the suspensive condition
is fulfilled, the obligation arises or becomes effective; if the resolutory

16
Art. 1601, et seq., Civil Code.

113
Art. 1181 OBLIGATIONS

condition is fulfilled, the obligation is extinguished. If the first is not


fulfilled, no juridical relation is created; if the second is not fulfilled,
the juridical relation is consolidated. In other words, in the first,
rights are not yet acquired, but there is a hope or expectancy that
they will soon be acquired; in the second, rights are already acquired,
but subject to the threat of extinction.17
These distinctions between a suspensive and a resolutory
condition are illustrated in the following case:

Parks vs. Province of Tarlac


49 Phil. 142

Plaintiff bought the land which is the subject matter of


this litigation from Concepcion Cirer and James Hill, who,
several years ago, prior to the sale, had donated the land to
the municipality of Tarlac subject to the condition that it will
be used absolutely and exclusively for the erection of a central
school and a public park, the work to commence within a period
of six months from the date of ratification of the donation by the
parties. The question now is: has the plaintiff a right of action to
recover the parcel of land from the municipality of Tarlac on the
ground that the condition imposed is suspensive, and therefore,
the said municipality had never acquired a right thereto since
the condition was never performed?
Held: “The appellant contends that a condition precedent
having been imposed in the donation and the same not having
been complied with, the donation never became effective. We
find no merit in this contention. The appellant refers to the
condition imposed that one of the parcels donated was to be
used absolutely and exclusively for the erection of a central
school and the other for a public park, the work to commence
in both cases within the period of six months from the date of
the ratification by the parties of the document evidencing the
donation. lt is true that this condition has not been complied
with. The allegation, however, that it is a condition precedent
is erroneous. The characteristic of a condition precedent is that
the acquisition of the right is not effected while said condition is
not complied with or is not deemed complied with. Meanwhile,
nothing is acquired and there is only an expectancy of right.
Consequently, when a condition is imposed, the compliance

17
8 Manresa, 5th Ed., Bk. 1, p. 311.

114
DIFFERENT KINDS OF OBLIGATIONS Art. 1182
Pure and Conditional Obligations

of which cannot be effected except when the right is deemed


acquired, such condition cannot be a condition precedent. In the
present case, the condition that a public school be erected and
a public park made on the donated land, work on the same to
commence within six months from the date of the ratification of
the donation by the parties, could not be complied with except
after giving effect to the donation. The donee could not do any
work on the donated land if the donation had not really been
effected, because it would be an invasion of another’s title, for
the land would have continued to belong to the donor so long
as the condition imposed was not complied with. The condition,
therefore, was a condition subsequent.’’18

Art. 1182. When the fulfillment of the condition depends


upon the sole will of the debtor, the conditional obligation
shall be void. If it depends upon chance or upon the will of
a third person, the obligation shall take effect in conformity
with the provisions of this Code.19
Potestative, Casual and Mixed Conditions. — As regards
the cause upon which its fulfillment depends, a condition may be
either potestative, casual or mixed. A purely potestative condition
is one whose fulfillment depends exclusively upon the will of either
one of the parties to the obligation. A casual condition is one whose
fulfillment depends exclusively upon chance and/or upon the will of
a third person. A mixed condition is one whose fulfillment depends
jointly upon the will of either one of the parties to the obligation and
upon chance and/or the will of a third person.
Idem; Effect of potestative conditions. — A distinction
must be made between the effects of a potestative condition whose
fulfillment depends exclusively upon the will of the creditor and the
effects of one whose fulfillment depends exclusively upon the will of
the debtor. In the first the condition as well as the obligation is valid,
while in the second not only the condition, but even the obligation
itself, is void.
Although the law is silent with regard to potestative conditions
whose fulfillment depends exclusively upon the will of the creditor,
it is undeniable that it cannot have the effect of nullifying the

18
For a similar case, see Prieto vs. Quezon City, 99 Phil. 1059.
19
Art. 1115, Spanish Civil Code.

115
Art. 1182 OBLIGATIONS

obligation to which it is attached. This is so because the creditor


is naturally interested in the fulfillment of the condition since it is
only by such fulfillment that the obligation can become effective.
Furthermore, the prohibition directed against potestative conditions
which can be clearly inferred from the provision of Art. 1182 extends
only to those which are potestative to the debtor and not to those
which are potestative to the creditor.20
On the other hand, the law expressly states that the conditional
obligation shall be void if it is subject to a potestative condition
whose fulfillment depends exclusively upon the will of the debtor.21
The reason behind this precept is evident. To allow conditions whose
fulfillment depends exclusively upon the will of the debtor would be
equivalent to sanctioning obligations which are illusory.22 Besides, it
would be in direct contravention of the principle announced in Art.
1308 of the Code that the validity and fulfillment of contracts cannot
be left to the will of one of the contracting parties. Thus, where the
obligor subscribed to 200 shares of capital stock to a certain college
with a par value of P100.00 each subject to the condition that she
will pay as soon as she had harvested fish from her fishpond, it was
held that even granting that the college had accepted the condition,
the obligation would still be void in accordance with Art. 1182 of the
Code, since the fulfillment of the condition depends exclusively upon
the will of the obligor.23
It must be noted, however, that the precept contained in
the first sentence of Art. 1182 is applicable only to a suspensive
condition. Hence, if the condition is resolutory and, at the same
time, potestative, the obligation, as well as the condition, is valid
even though the fulfillment of the condition is made to depend upon
the sole will of the obligor or debtor. This is logical because it is
but natural that the debtor is interested in the fulfillment of the
resolutory condition since it is only by such fulfillment that he can
reacquire the rights which have already been vested in the obligee or
creditor upon the constitution of the obligation.24 In other words, the
position of the debtor when the condition is resolutory is exactly the

20
8 Manresa, 5th Ed., Bk. 1, p. 327.
21
Art. 1182, Civil Code.
22
8 Manresa, 5th Ed., Bk. 1, p. 324.
23
Trillana vs. Quezon Colleges, 93 Phil. 383.
24
Art. 1190, Civil Code.

116
DIFFERENT KINDS OF OBLIGATIONS Art. 1182
Pure and Conditional Obligations

same as the position of the creditor when the condition is suspensive.


Hence, to make the fulfillment of the resolutory condition depend
upon the debtor’s will does not render the obligation illusory. Thus,
in the case of Taylor vs. Uy Tieng,25 where plaintiff and defendant
agreed that should the machinery, which the latter had ordered from
the United States, not arrive in Manila within six months for any
reason whatsoever, he can then cancel the contract at his option, the
Supreme Court, although admitting the potestative character of the
condition, declared:

“In Spanish jurisprudence a condition like that under


discussion is designated by Manresa a facultative condition
(Vol. 7, p. 611), and we gather from his comment on Articles
1115 and 1119 (now Arts. 1182 and 1186) of the Civil Code that
a condition, facultative as to the debtor, is obnoxious to the first
sentence contained in Article 1115 (now Art. 1182) and renders
the whole obligation void (Vol. 8, p. 131). That statement is
no doubt correct in the sense intended by the learned author,
but it must be remembered that he evidently has in mind
the suspensive condition, such as is contemplated in Article
1115 (now Art. 1182). Said article can have no application to
the resolutory condition, the validity of which is recognized in
Article 1113 (now Art 1179) of the Civil Code. ln other words, a
condition at once facultative and resolutory may be valid though
the condition is made to depend upon the will of the obligor.’’

It must also be noted that the rule that the conditional


obligation shall be void is applicable only to an obligation which
depends for its perfection upon a condition which is potestative to
the debtor and not to a pre-existing obligation. Thus, if the debtor
binds himself to deliver to the creditor a certain automobile by the
end of December, 1980, provided that he is in the mood to do so,
the obligation is void; in this case it is evident that the obligation
depends for its perfection upon the fulfillment of a condition which is
potestative. If the debtor, however, binds himself to pay a previous
indebtedness of P2,000 to the creditor by the end of December, 1980,
provided that he is in the mood to do so, although the condition is
void on the ground that its fulfillment depends exclusively upon the
will of the debtor, the obligation itself is not void since it refers to a
pre-existing indebtedness.

25
43 Phil. 873.

117
Art. 1182 OBLIGATIONS

Osmeña vs. Rama


14 Phil. 99
This is an action commenced by the plaintiff in the Court
of First Instance of Cebu for the collection of an indebtedness
evidenced by a promissory note, signed by the defendant. Under
this note, defendant stated: “I promise, in the presence of two
witnesses, that, if the house of strong materials in which I live is
sold, I will pay my indebtedness to Don Tomas Osmeña x x x.’’ Is
the condition potestative within the meaning of the prohibition
in what is now Art. 1182 of the Civil Code or not?
Held: “The only questions raised by the appellant were
questions of fact. It was suggested during the discussion of the
case in this court that, in the acknowledgment above-quoted
of the indebtedness made by the defendant, she imposed the
condition that she would pay the obligation if she sold her
house. If that statement found in her acknowledgment of
the indebtedness should be regarded as a condition, it was a
condition which depended upon her exclusive will and this is,
therefore, void.’’26

Idem; Effect of casual conditions. — When the fulfillment


of the condition depends upon chance and/or the will of a third
person, the obligation including such condition shall take effect.27
Thus, if the obligor promises to deliver his automobile to the obligee
if a certain candidate is elected to the position of President of the
Philippines in 1969, the obligation is valid because it is evident that
the fulfillment of the condition to which it is subject depends upon
the will of others. The same is true if the obligor promises to give
P10,000 to the obligee after the lapse of two years, provided that
during such period war shall not break out between Russia and the
United States.
Idem; Effect of mixed conditions. — When the fulfillment
of the condition depends partly upon the will of a party to the
obligation and partly upon chance and/or the will of a third person,
the obligation including such condition shall take effect. Thus, where
the payment of the balance of the purchase price of a house and lot

26
In Hermosa vs. Longara (93 Phil. 971), a much more recent case, the Supreme
Court declared that the above ruling was merely an assumption and the same was
not the actual ruling of the case.
27
Art. 1182, Civil Code.

118
DIFFERENT KINDS OF OBLIGATIONS Art. 1182
Pure and Conditional Obligations

is subject to the condition that the premises shall be vacated by the


occupant and that the vendee shall see to it that said premises shall
be vacated, it was held that the fulfillment of the condition depends
partly upon the will of the debtor and partly upon the will of a
third person, and therefore, the contract is valid and enforceable.28
Similarly, where the debtor promises to pay his debts to the creditor
as soon as he shall have received funds derived from the sale of his
house, it was held that the fulfillment of the condition depends partly
upon the will of the debtor and partly upon the will of third persons,
as a consequence of which it is perfectly valid and enforceable.29 But
where the debtor promises to pay his debts “if he decides to sell his
house’’ or “if he likes to pay the sums advanced,” the condition would
be void, since its fulfillment would then depend exclusively upon his
will.30

Smith, Bell & Co. vs. Sotelo Matti


44 Phil. 875

In August, 1918, during the first World War, plaintiff and


defendant entered into several contracts whereby the former
agreed to sell, and the latter to purchase, two steel tanks for
P21,000, the same to be shipped from New York and delivered
in Manila “within three or four months,” two expellers at
P25,000 each, which were to be shipped from San Francisco
in “September, 1918, or as soon as possible,” and two electric
motors, approximate delivery of which was to be made “within
ninety days, although not guaranteed.” Because of the war that
was going on, there was a stipulation in all of the contracts
that delivery of the machineries shall be subject to government
regulations, embargoes and other requirements. Upon their
arrival in Manila, defendant refused to accept the machineries
on the ground that plaintiff had incurred in delay. As a result,
the latter brought this action against the former for specific
performance. Holding that the defendant can still be compelled
to comply with the obligation, the Supreme Court declared:
“Considering these contracts in the light of the civil
law, we cannot but conclude that the term which the parties
attempted to fix is so uncertain that one cannot tell just whether,
as a matter of fact, these articles could be brought to Manila or

28
Jacinto vs. Chua Leng, CA, 45 Off. Gaz. 2919.
29
Hermosa vs. Longara, 93 Phil. 971.
30
Ibid.

119
Art. 1182 OBLIGATIONS

not. If that is the case, as we think it is, the obligation must be


regarded as conditional.
“And as the export of the machinery in question was, as
stated in the contract, contingent upon the sellers obtaining
a certificate of priority and permission of the United States
Government, subject to the rules and regulations, as well as the
railroad embargoes, then the delivery was subject to a condition
the fulfillment of which depended not only upon the effort of the
herein plaintiff, but upon the will of third persons who could not
be compelled to fulfill the condition. In cases like this, which are
not expressly provided for, but impliedly covered by the Civil
Code, the obligor will be deemed to have sufficiently performed
his part of the obligation, if he has done all that was in his
power, even if the condition has not been fulfilled in reality.”
Problem — Give the effects of potestative, casual and
mixed conditions upon the obligation.
Answer — If the condition is potestative in the sense that
its fulfillment depends exclusively upon the will of the debtor,
the conditional obligation shall be void. (Art. 1182, NCC.)
If the condition is potestative in the sense that its fulfillment
depends exclusively upon the will of the creditor, the conditional
obligation shall be valid. This is so because the provision of the
first sentence of Art. 1182 extends only to conditions which
are potestative to the obligor or debtor. Besides, the creditor is
naturally interested in the fulfillment of the condition since it
is only by such fulfillment that the obligation arises or becomes
effective. (Art. 1181, NCC; 8 Manresa, 5th Ed., Bk. 1, p. 327.)
If the condition is casual in the sense that its fulfillment
depends upon chance and/or upon the will of a third person, the
obligation shall be valid. (Art. 1182, NCC.)
If the condition is mixed in the sense that its fulfillment
depends partly upon the will of a party to the obligation and
partly upon chance and/or the will of a third person, the
obligation shall be valid. (Smith, Bell & Co. vs. Sotelo, 44 Phil.
875; Hermosa vs. Longara, 93 Phil. 971.)
Problem — Suppose that the debtor executed a promissory
note promising to pay his obligation to the creditor as soon as
he has received funds derived from the sale of his property in a
certain place, is the condition potestative or mixed?
Answer — According to the Supreme Court in the case
of Hermosa vs. Longara, 93 Phil. 971, the condition is mixed

120
DIFFERENT KINDS OF OBLIGATIONS Art. 1182
Pure and Conditional Obligations

because its fulfillment depends not only upon the will of the
debtor but also upon the concurrence of other factors, such as
the acceptability of the price and other conditions of the sale,
as well as the presence of a buyer, ready, able and willing to
purchase the property.
Problem — Suppose that in the above problem, the debtor
promised to pay his obligation if a house belonging to him is
sold, will that make a difference in your answer?
Answer — It will not make a difference in my answer.
The condition is still mixed because its fulfillment depends not
only upon the will of the debtor but also upon the concurrence
of other factors, such as the acceptability of the price and other
conditions of the sale, as well as the presence of a buyer, ready,
able and willing to purchase the property.
True, apparently, in Osmeña vs. Rama (14 Phil. 99), the
Supreme Court declared that the above condition is potestative
with respect to the debtor, but a closer perusal of the case
will show that the declaration or statement was merely an
assumption and the same was not the actual ruling. (Hermosa
vs. Longara.)
Hence, the condition is valid. And it cannot be said that if
the debtor so desires, he can always prevent the sale. According
to the NCC (Art. 1186.), if he prevents the consummation of the
sale voluntarily, the condition would be deemed or considered
complied with. (Ibid.)
Problem — Suppose that in the above problem, the debtor
promised to pay his obligation as soon as he has received the
funds derived from the sale of the property if he finally decides
to sell it, will that make a difference in your answer?
Answer — Yes. In such case, it is evident that the condition
is potestative with respect to the debtor because its fulfillment
would then depend exclusively upon his will. Consequently, the
condition is void. (Hermosa vs. Longara.) The validity of the
obligation is, of course, not affected, because the rule stated
in Art. 1182 of the NCC to the effect that when the fulfillment
of the condition depends upon the sole will of the debtor, the
conditional obligation itself shall be void, is applicable only
when the obligation shall depend for its perfection upon the
fulfillment of the condition and not when the obligation is a pre-
existing one. (See Trillana vs. Quezon Colleges, 93 Phil. 383.)
Problem — Art. 1182 of the New Civil Code declares that
when the fulfillment of the condition depends upon the sole will

121
Art. 1183 OBLIGATIONS

of the debtor, and conditional obligation shall be void. Is this


rule absolute in the sense that it is applicable to all conditional
obligations regardless of the nature of the condition as well as of
the obligation?
Answer — The rule is not absolute. There are 2 well-
known limitations. They are as follows:
The rule is applicable only to a suspensive condition. Hence,
if the condition is resolutory and potestative, the obligation is
valid even if the fulfillment of the condition is made to depend
upon the sole will of the debtor. This is logical because it is but
natural that the debtor is interested in the fulfillment of the
condition since it is only by such fulfillment that he can reacquire
the rights which have already been vested in the creditor upon
the constitution of the obligation. In other words, the position of
the debtor when the condition is resolutory is exactly the same
as the position of the creditor when the condition is suspensive.
(Taylor vs. Uy Tieng Piao, 43 Phil. 873.)
The rule that even the obligation itself shall be void is
applicable only to an obligation which depends for its perfection
upon the fulfillment of the potestative condition and not to a
pre-existing obligation. Thus, if the debtor binds himself to
pay a previous indebtedness as soon as he decides to sell his
house, although the condition is void because of its potestative
character, the obligation itself is not affected since it refers to
a pre-existing indebtedness. (Trillana vs. Quezon Colleges, 93
Phil. 383.)

Art. 1183. Impossible conditions, those contrary to good


customs or public policy and those prohibited by law shall
annul the obligation which depends upon them. If the obli-
gation is divisible, that part thereof which is not affected by
the impossible or unlawful condition shall be valid.
The condition not to do an impossible thing shall be
considered as not having been agreed upon.31

Possible and Impossible Conditions. — The condition upon


which an obligation is made to depend may also be classified as
possible or impossible. It is possible when it is capable of realization
not only according to its nature, but also according to the law, good

31
Art. 1116, Spanish Civil Code, in modified form.

122
DIFFERENT KINDS OF OBLIGATIONS Art. 1183
Pure and Conditional Obligations

customs and public policy. It is impossible when it is not capable of


realization either according to its nature or according to law, good
customs or public policy.
Idem; Effects. — According to Art. 1183 of the Civil Code,
impossible conditions as well as those which are contrary to good
customs or public policy and those which are prohibited by law
shall annul the obligation which depends upon them.32 This rule
is logical considering that the obligation depends for its perfection
upon the fulfillment of a condition which is either impossible, illegal,
inappropriate or illicit in character. Thus, if A obligates himself to
pay to B P10,000 if the latter can contract the inhabitants of Mars,
the obligation is a nullity because the condition is impossible. If C
promises to give to D a parcel of land if the latter secures a divorce
from his wife, the obligation is also a nullity because the condition is
contrary to law, good customs and public policy. If E binds himself to
deliver to F an automobile if the latter will go with him around the
world on a trial honeymoon, the obligation is certainly void because
the condition is contrary to good customs. If the obligation, however,
is a pre-existing obligation, and therefore, does not depend upon the
fulfillment of the condition for its perfection, it is quite clear that
only the condition is void, but not the obligation.
It must be observed that if the obligation is divisible, that part
which is not affected by the impossible or unlawful condition shall be
valid.33 Thus, if A and B enter into an agreement whereby the former
binds himself to give P5,000 to the latter in two equal installments
— the first installment to be given if the latter is able to dispose of a
cache of opium belonging to the former and the second installment
to be given if the latter gets married to C, since the obligation is
divisible, that part (the second part) which is not affected by the
unlawful condition shall be valid.
Furthermore, if the condition is not to do an impossible thing, it
shall be considered as not having been agreed upon.34 Consequently,
the obligation becomes pure, and therefore, immediately demandable.

32
Luneta Motor Co. vs. Abad, 67 Phil. 23; Reyes vs. Gonzales, CA, 45 Off. Gaz.
831; Theater’s Supply Corp. vs. Malolos, CA, 48 Off. Gaz. 1803; Santos vs. Sec. of
Agriculture, 48 Off. Gaz. 3367.
33
Art. 1183, Civil Code.
34
Ibid.

123
Arts. 1184-1185 OBLIGATIONS

Attention must also be called to the fact that there is a differ-


ence with respect to effect between a condition which is impossible,
illegal, inappropriate or illicit when it is attached to an obligation35
and the same condition when it is attached to a simple or remunera-
tory donation36 or to a testamentary disposition.37 In the first, the ob-
ligation itself is void, while in the second, the condition is considered
as not imposed, although the donation or testamentary disposition
itself is valid.

Art. 1184. The condition that some event happen at a


determinate time shall extinguish the obligation as soon
as the time expires or if it has become indubitable that the
event will not take place.38
Art. 1185. The condition that some event will not happen
at a determinate time shall render the obligation effective
from the moment the time indicated has elapsed, or if it has
become evident that the event cannot occur.
If no time has been fixed, the condition shall be deemed
fulfilled at such time as may have probably been contemplat-
ed, bearing in mind the nature of the obligation.39

Positive and Negative Conditions. — The condition upon


which an obligation is made to depend may also be classified as
positive or negative. It is positive if it involves the performance of
an act or the fulfillment of an event; it is negative if it involves the
nonperformance of an act or the nonfulfillment of an event.
Idem; Effects. — The condition that some event happen at
a determinate time shall extinguish the obligation as soon as the
time expires or if it becomes indubitable that the event will not take
place.40 Thus, if A binds himself to give to B P2,000 if the latter
passes the bar examinations in his first attempt, and B flunks the
examinations, the obligation is extinguished. If X binds himself

35
Ibid.
36
Art. 727, Civil Code.
37
Art. 873, Civil Code.
38
Art. 1117, Spanish Civil Code.
39
Art. 1118, Spanish Civil Code.
40
Art. 1184, Civil Code.

124
DIFFERENT KINDS OF OBLIGATIONS Art. 1186
Pure and Conditional Obligations

to give a new Studebaker car to Y if the latter gets married to Z


within a period of five years from the time of the constitution of
the obligation, and at the expiration of five years, Y had not yet
complied with the condition, the obligation is also extinguished.
The condition that some event will not happen at a determinate
time shall render the obligation effective from the moment the time
indicated has elapsed, or if it has become evident that the event
cannot occur.41 Thus, if A binds himself to give P5,000 to B provided
that the latter shall not get married before reaching the age of
twenty-five, the condition is negative. If B is not yet married at the
time when he finally reaches the age of twenty-five, the obligation
becomes effective.
Attention must be called to the rule stated in the second
paragraph of Art. 1185. The intention of the parties, taking into
consideration the nature of the obligation, shall govern if no time
has been fixed for the fulfillment of the condition. It is evident that
the same rule can also be applied to a positive condition.

Art. 1186. The condition shall be deemed fulfilled when


the obligor voluntarily prevents its fulfillment.42
Constructive Fulfillment of Suspensive Conditions. —
The above article enunciates the doctrine of constructive fulfillment
of suspensive conditions. In order that this doctrine can be applied,
it is, however, necessary that the obligor must have actually
prevented the obligee from complying with the condition, and that
such prevention must have been voluntary or willful in character.
Thus, where the conditions which are imposed by a certain company
in order that its employees will be entitled to retirement benefits can
no longer be complied with because the retirement or pension plan
was willfully abrogated by a unilateral act of the Board of Directors
of the company, it was held that such conditions are deemed complied
with in conformity with Art. 1186; consequently, such employees are
now entitled to retirement benefits.43

41
Art. 1185, Civil Code.
42
Art. 1119, Civil Code.
43
Phil. Long Distance Co. vs. Jeturian, 97 Phil. 981.

125
Arts. 1187-1188 OBLIGATIONS

It must be noted, however, that the doctrine can be applied


only to suspensive and not to resolutory conditions. In the words of
the Supreme Court:

“This provision supposes a case where the obligor


intentionally impedes the fulfillment of a condition which would
entitle the obligee to exact performance from the obligor; and
an assumption underlying the provision is that the obligor
prevents the obligee from performing some act which the obligee
is entitled to perform as a condition precedent to the exaction of
what is due to him. Such an act must be considered unwarranted
and unlawful, involving per se a breach of the implied terms of
the contract. The article can have no application to an external
contingency which is lawfully within the control of the obligor.”44

Art. 1187. The effects of a conditional obligation to give,


once the condition has been fulfilled, shall retroact to the
day of the constitution of the obligation. Nevertheless, when
the obligation imposes reciprocal prestations upon the par-
ties, the fruits and interests during the pendency of the con-
dition shall be deemed to have been mutually compensated.
If the obligation is unilateral, the debtor shall appropriate
the fruits and interests received, unless from the nature and
circumstances of the obligation it should be inferred that the
intention of the person constituting the same was different.
In obligations to do and not to do, the courts shall de-
termine, in each case, the retroactive effect or the condition
that has been complied with.45
Art. 1188. The creditor may, before the fulfillment of the
condition, bring the appropriate actions for the preservation
of his right.
The debtor may recover what during the same time he
has paid by mistake in case of a suspensive condition.46
Effect of Suspensive Conditions Before Fulfillment. — If
the obligation depends upon a suspensive condition, the demand-

44
Taylor vs. Uy Tieng, 43 Phil. 760.
45
Art. 1120, Spanish Civil Code.
46
Art. 1121, Spanish Civil Code, in modified form.

126
DIFFERENT KINDS OF OBLIGATIONS Arts. 1187-1188
Pure and Conditional Obligations

ability as well as the acquisition or effectivity of rights arising from


the obligation is suspended pending the happening or fulfillment
of the fact or event which constitutes the condition. It is but logi-
cal, therefore, that during the pendency of the condition, the obli-
gee or creditor has only a mere hope or expectancy. This hope or
expectancy, however is protected by the law. This is evident from
the provision of the first paragraph of Art. 1188. Inasmuch as the
obligee or creditor has an expectant right to the eventual fulfillment
or performance of the obligation, it is but just and proper that the
law accords to him the right to avail of all remedies for the protec-
tion or preservation of such right. Thus, if the obligor has promised
in writing to sell a parcel of land to the obligee upon the happening
of a certain condition, and subsequently, before the fulfillment of the
condition, he changes his mind and finally decides to sell the land to
another person, the obligee can bring an appropriate action, such as
a petition for the issuance of a writ of injunction, to prevent the sale
in order to preserve his right.
In the case of the obligor or debtor, it is also logical that during
the pendency of the condition, his obligation to comply with the
prestation which constitutes the object of the obligation is held in
suspense until the fulfillment of the condition. Or more accurately,
his obligation to comply with the prestation arises only if and
when the event which constitutes the condition is finally fulfilled.
Consequently, if he has paid anything by mistake during the
pendency of the condition, he can recover what has been paid.47

Problem — Before the war, the Phil. Long Distance Co.


(PLDT) adopted a pension plan for its employees by virtue of
which all employees who have reached the age of 50 years and
who have rendered 20 years or more service may be retired with
a pension. After the war, the Board of Directors of the Company
passed a resolution abrogating the pension plan. Subsequently,
sixty employees who were affected filed a complaint against
the Company claiming monetary benefits under the pension
plan. The Company interposed the following defenses: (1) that
the obligation to pay a pension to the plaintiffs is subject to
certain suspensive conditions; consequently, such plaintiffs
have no personality to ask for monetary benefits until after
such conditions are fulfilled; (2) that even granting without

47
Art. 1188, par. 2, Civil Code.

127
Arts. 1187-1188 OBLIGATIONS

admitting that they have, they are not entitled to such benefits
until after the conditions are fulfilled; and (3) that war losses
had extinguished the Company’s obligation to proceed with the
pension plan. If you are the judge, how will you decide the case?
Reasons.
Answer — The facts of the above problem are exactly the
same as those in the case of PLDT Co. vs. Jeturian, et al., 97
Phil. 981, where the Supreme Court decided in favor of the
plaintiffs. For purposes of clarity, let us take up the defenses
advanced by the defendant company separately.
(1) The 1st defense is untenable. While it is true that
when an obligation is subject to a suspensive condition, what
is acquired by the creditor is only a mere hope or expectancy,
nevertheless, it is a hope or expectancy that is protected by the
law. According to Art. 1188 of the NCC, the creditor may, before
the fulfillment of the condition, bring the appropriate actions for
the preservation of his right.
(2) The second defense is untenable. According to Art.
1186 of the NCC, the condition shall be deemed fulfilled when
the obligor voluntarily prevents its fulfillment. The act of the
Board of Directors of the Phil. Long Distance Co. in abrogating
the pension plan certainly falls within the sphere or purview of
this rule.
(3) The third defense is also untenable. This is so
because the defense of fortuitous event is available only if the
obligation is determinate and not if the obligation is generic.
Here, the obligation is clearly generic since it involves the
payment of money.
From the foregoing, it is clear that the case should be
decided in favor of the plaintiffs.

Effect of Suspensive Conditions After Fulfillment. —


Once the event which constitutes the condition is fulfilled, the
obligation arises or becomes effective. The right of the creditor,
which, before the fulfillment of the condition, was a mere hope or
expectancy, is perfected. It becomes effective and demandable. The
obligor or debtor, on the other hand, can thereafter be compelled to
comply with what is incumbent upon him.
Idem; Retroactivity of effect. — There is, however, a
very important precept or principle which must be noted once the
condition upon which the obligation depends is finally fulfilled. This

128
DIFFERENT KINDS OF OBLIGATIONS Arts. 1187-1188
Pure and Conditional Obligations

refers to the retroactive character of the effects of the fulfillment of


the condition.48 The basis of this precept is simple. The condition
which is imposed is only an accidental, not an essential, element of
the obligation. Consequently, once the event which constitutes the
condition is fulfilled thus resulting in the effectivity of the obligation,
its effects must logically retroact to the moment when the essential
elements which gave birth to the obligation have taken place and
not to the moment when the accidental element was fulfilled.49
The principle of retroactivity can only apply to consensual
contracts. It can have no application to real contracts, such as
deposit, pledge or commodatum which can only be perfected by
delivery. Neither can it have any application to those contracts in
which the obligation arising therefor can only be realized within
successive periods or intervals, such as lease, hire of service, life
annuity, and similar contracts.50
The application of the principle of retroactivity must, howev-
er, be tempered by principles of justice and practicability. The law,
therefore, has provided for certain limitations which must be com-
plied with in the application of the principle.
Idem; id. — In obligations to give. — When the obligation
imposes reciprocal prestations upon the parties, the fruits and
interests during the pendency of the condition shall be deemed
to have been mutually compensated. Thus, if A had obligated
himself to sell a certain parcel of land to B for P100,000 subject to a
condition of a suspensive character, and such condition was fulfilled
two years after the perfection of the contract, a literal application of
the principle of retroactivity would have the effect of compelling A
to deliver to B not only the land, but also all of the fruits which he
may have gathered or received therefrom during the period from the
time of the perfection of the contract to the time of the fulfillment
of the condition; and as far as B is concerned, it would have the
effect of compelling him to pay to A not only the P100,000, but also
the interest thereon during the same period. But because of the
reciprocal character of the obligation, the law, as a matter of justice
and convenience, considers the fruits and interests as the equivalent

48
Art. 1187, Civil Code, pp. 334-335.
49
8 Manresa, 5th Ed., Bk. 1, p. 33.
50
7 Planiol and Ripert 353-354.

129
Art. 1189 OBLIGATIONS

of each other. In other words, they are deemed to compensate each


other mutually.51
When the obligation is unilateral, the debtor shall appropriate
the fruits and interests received, unless from the nature and
circumstances of the obligation it can be inferred that the intention
of the person constituting the same was different. This rule is based
on justice. Since the obligor or debtor does not receive any equivalent
or valuable consideration from the obligee or creditor when the
obligation is unilateral, it is but logical that he shall be entitled to
all of the fruits or interests of the thing pending the fulfillment of the
condition, unless there is a contrary intention on his part. Thus, if A
had obligated himself to give to B a parcel of land if the latter gets
married to C, and the condition is fulfilled only after two years from
the time of the constitution of the obligation, he shall be obligated to
deliver only the land and not the fruits which he may have gathered
or received therefrom during the pendency of the condition.52
Idem; id. — In obligations to do or not to do. — In case of
personal obligations, the courts will have to determine in each case
the retroactive effect of the condition that has been complied with.
This duty of the courts includes the power to determine whether the
effects of the fulfillment of the condition shall retroact to the very
moment of the constitution of the obligation or only to a specified
date before fulfillment. It can even include the power to determine
whether or not there will be any retroactivity of effects.53

Art. 1189. When the conditions have been imposed with


the intention of suspending the efficacy of an obligation
to give, the following rules shall be observed in case of the
improvement, loss or deterioration of the thing during the
pendency of the condition:
(1) If the thing is lost without the fault of the debtor,
the obligation shall be extinguished;
(2) If the thing is lost through the fault of the debtor,
he shall be obliged to pay damages; it is understood that the

51
8 Manresa, 5th Ed., Bk. 1, pp. 334-335.
52
Ibid., p. 335.
53
Ibid.

130
DIFFERENT KINDS OF OBLIGATIONS Art. 1189
Pure and Conditional Obligations

thing is lost when it perishes, or goes out of commerce, or


disappears in such a way that its existence is unknown or it
cannot be recovered;
(3) When the thing deteriorates without the fault of
the debtor, the impairment is to be borne by the creditor;
(4) If it deteriorates through the fault of the debtor, the
creditor may choose between the rescission of the obligation
and its fulfillment, with indemnity for damages in either
case;
(5) If the thing is improved by its nature, or by time,
the improvement shall inure to the benefit of the creditor;
(6) If it is improved at the expense of the debtor, he shall
have no other right than that granted to the usufructuary.54
Effect of Loss, Deterioration or Improvement. — What
is the effect of the loss, deterioration or improvement of the thing
which constitutes the object of the obligation during the pendency
of the condition? This question is answered by the rules which are
stated in Art. 1189.
These rules are natural consequences of the principle of
retroactivity which is embodied in Art. 1187. They refer only to
conditional obligations to give a determinate thing. Although the
loss, deterioration or improvement occurs during the pendency of
the condition, such rules are predicated on the fulfillment of such
conditions.
Idem; Losses. — Loss of the thing due must be understood
in its technical, not vulgar, sense. Thus, according to the Code, it is
understood that the thing is lost: (1) when it perishes; or (2) when it
goes out of commerce; or (3) when it disappears in such a way that
its existence is unknown or it cannot be recovered.55 It is evident
from an examination of the first and second rules stated in Art.
1189 that the effect of the loss or destruction of the thing which
constitutes the object of the obligation shall depend upon whether
the loss or destruction occurred without the fault of the debtor or
through his fault. If the thing is lost without any fault of the debtor,

54
Art. 1122, Spanish Civil Code.
55
Art. 1189, No. 2, Civil Code.

131
Art. 1189 OBLIGATIONS

the obligation is extinguished. However, if it is lost through his


fault, the obligation is converted into one of indemnity for damages.
The first rule is in conformity with Art. 1262 of the Code.
Idem; Deteriorations. — The rules contained in Nos. 3
and 4 of Art. 1189 are self-explanatory. If the thing deteriorates
without the fault of the debtor, the impairment is to be borne by the
creditor. However, if it deteriorates through the fault of the debtor,
the creditor may choose between bringing an action for rescission
of the obligation with damages and bringing an action for specific
performance with damages.
Idem; Improvements. — If the thing is improved by its
nature or by time, the improvement shall inure to the benefit of
the creditor. Thus, in case of natural accessions, such as alluvion,
avulsion, abandoned river beds, or islands which are formed, the
accession shall inure to the benefit of the creditor. However, if the
thing is improved at the expense of the debtor, he shall have no
other right than that granted to a usufructuary. Consequently,
the debtor cannot ask reimbursement for the expenses incurred
for useful improvements or for improvements for mere pleasure;56
he can, however, ask reimbursement for necessary expenses.57
Although he cannot ask the creditor to reimburse his expenses for
useful improvements and improvements for mere pleasure, he has
the right to remove such improvements, provided it is possible to
do so without damage to the thing or property.58 He may also set off
the improvements he may have made on the property against any
damage to the same.59

Problem — Suppose that an obligation is subject to a


suspensive condition, but before the fulfillment of the condition
the object of the obligation was lost or it has deteriorated, or
improvements were made thereon, what is the effect of such
loss, or deterioration, or improvements if the condition is finally
fulfilled?
Answer — When the conditions have been imposed with
the intention of suspending the efficacy of an obligation to give,
the following rules shall be observed in case of the improvement,

56
Art. 579, Civil Code.
57
Art. 546, Civil Code.
58
Art. 579, Civil Code.
59
Art. 580, Civil Code.

132
DIFFERENT KINDS OF OBLIGATIONS Art. 1190
Pure and Conditional Obligations

loss or deterioration of the thing during the pendency of the


condition:
(1) If the thing is lost without the fault of the debtor, the
obligation shall be extinguished;
(2) If the thing is lost through the fault of the debtor, he
shall be obliged to pay damages; it is understood that the thing
is lost when it perishes, or goes out of commerce, or disappears
in such a way that its existence is unknown or it cannot be
recovered;
(3) When the thing deteriorates without the fault of the
debtor, the impairment is to be borne by the creditor;
(4) If it deteriorates through the fault of the debtor, the
creditor may choose between the rescission of the obligation and
its fulfillment, with indemnity for damages in either case;
(5) If the thing is improved by its nature, or by time, the
improvement shall inure to the benefit of the creditor;
(6) If it is improved at the expense of the debtor, he
shall have no other right than that granted to the usufructuary.
(Art. 1189, NCC.)
Problem — Are the above rules also applicable if the
condition is resolutory?
Answer — Yes. (Art. 1190, NCC.) However, in applying
these rules, the “debtor” is the person obliged to return the
object of the obligation in case of fulfillment of the condition,
while the “creditor” is the person to whom the thing or object
must be returned.

Art. 1190. When the conditions have for their purpose


the extinguishment of an obligation to give, the parties, upon
the fulfillment of said conditions, shall return to each other
what they have received.
In case of the loss, deterioration or improvement of the
thing, the provisions which, with respect to the debtor, are
laid down in the preceding article shall be applied to the
party who is bound to return.
As for obligations to do and not to do, the provisions of
the second paragraph of Article 1187 shall be observed as
regards the effect of the extinguishment of the obligation.60

60
Art. 1123, Spanish Civil Code.

133
Art. 1190 OBLIGATIONS

Effect of Resolutory Conditions Before Fulfillment. —


Because of the fact that in obligations with a resolutory condition, the
right which the obligee or creditor has already acquired by virtue of
the obligation is always subject to the threat of extinction during the
pendency of the condition, the obligor or debtor is placed in a position
which is very similar to that of the obligee or creditor in obligations
with a suspensive condition. Like the latter he has also a hope or
expectancy during the pendency of the condition. This is so because
if and when the event which constitutes the resolutory condition
happens or is fulfilled, he will certainly reacquire whatever he may
have paid or delivered to the obligee or creditor. Consequently, the
same right which is available to the creditor during the pendency
of the condition in obligations which a suspensive condition is also
available to the debtor in obligations with a resolutory condition.
Since the latter has a hope or expectancy of reacquiring whatever he
may have paid or delivered to the creditor, this hope or expectancy
must be protected. Hence, commentators are unanimous in holding
that the right which is explicitly recognized in the first paragraph
of Art. 1188 is also available to the debtor in obligations with a
resolutory condition. Although apparently this right is available
only to the creditor in obligations with a suspensive condition,
justice demands that the rights must also be available to the debtor
in obligations with a resolutory condition during pendency of the
said condition.61
Effect of Resolutory Conditions After Fulfillment. —
As noted in the preceding sections, rights which are vested in the
obligee or creditor in obligations with a resolutory condition are
always subject to a threat of extinction during the pendency of the
condition. If the resolutory condition is not fulfilled, such rights are
consolidated; in other words, they become absolute in character.
If it is fulfilled, such rights are extinguished altogether; in other
words, whatever may have been paid or delivered by one or both of
the parties upon the constitution of the obligation shall have to be
returned upon the fulfillment of the condition. There is, therefore, a
return to the status quo.62
Idem; Retroactivity of effect. — It is evident from an
examination of the first paragraph of Art. 1190 that the retroactivity

61
8 Manresa, 5th Ed., Bk. 1, p. 346.
62
Ibid.

134
DIFFERENT KINDS OF OBLIGATIONS Art. 1190
Pure and Conditional Obligations

of effects of a resolutory condition is more patent than that of a


suspensive condition, notwithstanding the fact that here there is
no positive declaration of the principle as in the case of the first
paragraph of Art. 1187. This is so because, unlike Art. 1187 which
provides for certain exceptions or limitations to the principle of
retroactivity, here there are no exceptions.
Thus, in obligations to give, upon the fulfillment of the
resolutory condition, the parties shall return to each other what
they have received. This rule is applicable whether the obligation
is reciprocal or unilateral. There are no exceptions or limitations
similar to those provided for in suspensive conditions. The basis
for the difference, according to Manresa, lies in the fact that in
obligations with a resolutory condition, the fulfillment of the condition
and its retroactivity have the effect of signifying the nonexistence of
the obligation and what is nonexistent must not give rise to any
effect whatsoever. Consequently, the fiction of retroactivity must
be carried to its full consummation. Therefore, every vestige of the
obligation must be effaced as much as possible through the process
of restitution.63
However, the process of restitution must be accompanied by a
consequence which is not stated in Art. 1190, but which is required
by the most elementary concept of justice. According to Art. 443 of
the Code, “he who receives the fruits has the obligation to pay the
expenses made by a third person in their production, gathering,
and preservation.’’ Consequently, when a party to the obligation is
obliged to return whatever he may have received including the fruits
thereof to the other by reason of the fulfillment of the condition, he
has the right to demand reimbursement for all expenses which he
may have incurred in the production, gathering, and preservation of
the said fruits.64
In obligations to do or not do, the retroactivity of effects of the
resolutory condition shall depend upon the discretion of the courts,
as in the case of suspensive conditions.
Idem; Effect of loss, deterioration or improvement. —
In case of loss, deterioration or improvement of the thing during
the pendency of the condition, the rules laid down in Art. 1189

63
Ibid., pp. 345-346.
64
Ibid., p. 346.

135
Art. 1191 OBLIGATIONS

are applicable. Consequently, what had been said regarding the


effect of loss, deterioration or improvement of the thing during the
pendency of a suspensive condition once the condition is fulfilled
are also applicable here. However, in the application of the rules
stated in Art. 1189 to obligations subject to a resolutory condition,
the “debtor” is the person obliged to return, while the “creditor” is
the person to whom the thing or object must be returned.

Art. 1191. The power to rescind obligations is implied


in reciprocal ones, in case one of the obligors should not
comply with what is incumbent upon him.
The injured party may choose between the fulfillment
and the rescission of the obligation, with the payment of
damages in either case. He may also seek rescission, even
after he has chosen fulfillment, if the latter should become
impossible.
The court shall decree the rescission claimed, unless
there be just cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights
of third persons who have acquired the thing, in accordance
with Articles 1385 and 1388 and the Mortgage Law.65

Concept of Reciprocal Obligations. — Reciprocal obligations


are those which are created or established at the same time, out of
the same cause, and which result in mutual relationships of creditor
and debtor between the parties. The outstanding characteristic of
this type of obligation is reciprocity arising from identity of cause by
virtue of which one obligation is a correlative of the other. Thus, in
a contract of sale, the obligation of the vendee to pay the price is a
correlative of the obligation of the vendor to deliver the thing sold;
in a contract of lease, the obligation of the lessee to pay the rental
or price of the lease is a correlative of the obligation of the lessor to
permit the use by the lessee of the thing leased. Although reciprocal
obligations are bilateral in character, they must not be confused
with those obligations in which the parties are mutually, but not
reciprocally obligated, as when a person is the debtor of another by

65
Art. 1124, Spanish Civil Code, in modified form.

136
DIFFERENT KINDS OF OBLIGATIONS Art. 1191
Pure and Conditional Obligations

virtue of a contract of loan and, at the same time, the creditor by


virtue of a contract of agency.66
Tacit Resolutory Condition. — Because of the fact that in
reciprocal obligations the obligation of one party is the correlative
of the obligation of the other, the Code in the first paragraph of Art.
1191 has established the principle that if one of the parties fails to
comply with what is incumbent upon him, there is a right on the
part of the other to rescind (or “resolve” in accordance with accepted
translations of the Spanish Civil Code) the obligation. This condition
is implied as a general rule in all reciprocal obligations. Since it
has the effect of extinguishing rights which are already acquired or
vested, it is resolutory in character.
Idem; Necessity of judicial action. — The right to rescind
or resolve the obligation is a right which belongs to the injured party
alone.67 However, it is essential that it must be invoked judicially.68
This is evident from the provision of the third paragraph of Art.
1191 which states that the court shall decree the rescission, unless
there be a just cause authorizing the fixing of a period.69 Therefore,
the mere failure of a party to comply with what is incumbent upon
him does not ipso jure produce the rescission or resolution of the
obligation. In other words, the party entitled to rescind must invoke
judicial aid by filing the proper action for rescission. Consequently,
in a contract of sale, the fact that the vendee failed to pay the
purchase price of the thing sold does not mean that the vendor can
just take possession of the thing which had already been delivered
to the vendee. He must invoke judicial aid by filing an action for
rescission or resolution of the contract if he so elects.70 As stated by
the Supreme Court, it is the judgment of the court and not the mere
will of the vendor which produces the rescission of the sale.71
It must be noted, however, that where the contract itself
contains a resolutory provision by virtue of which the obligation
maybe cancelled or extinguished by the injured party in case of

66
8 Manresa, 5th Ed., Bk 1, pp. 348-349.
67
Mateos vs. Lopez, 6 Phil. 206; Bosque vs. Yu Chipeco, 14 Phil. 95.
68
Guevara vs. Pascual, 12 Phil. 311; Escueta vs. Pando, 76 Phil. 256; Republic of
the Phil. vs. Hospital San Juan de Dios and Burt, 47 Off. Gaz. 1833.
69
Escueta vs. Pando, 76 Phil. 256.
70
Ocejo, Perez & Co. vs. International Banking Corp., 37 Phil. 631.
71
Ibid.

137
Art. 1191 OBLIGATIONS

breach, judicial permission to cancel or rescind the contract is no


longer necessary.72 In Taylor vs. Uy Tieng Piao, 43 Phil. 873, the
defendant was expressly given the right to terminate plaintiff’s
employment should the machinery expected fail to arrive in six
months. It was held that the defendant had the right to cancel
the contract. In Caridad Estates, Inc. vs. Santero, 71 Phil. 114, a
provision granting the vendor the option to recover possession of
the property sold if the vendee should fail to make the necessary
payments was also recognized and given full effect. The only
limitation on the exercise of the right to terminate a contract is
that it must not be contrary to law, morals, good customs, public
order or public policy.73 In the recent case of Sison vs. CA (164 SCRA
339), the Supreme Court in deciding whether the rescission of the
contract to sell a subdivision lot after the lot buyer has failed to
pay several installments was valid, the Court said: judicial action
for the rescission of a contract is not necessary where the contract
provides that it may be cancelled for violation of any of its terms and
conditions. Consequently, Art. 1191 of the Civil Code can be applied
only to reciprocal contracts which contain no resolutory conditions.
The use of the word “implied” in the article supports this conclusion.
The right to rescind is “implied’’ only if not expressly granted; no
right can be said to be implied if expressly recognized.74
It must also be noted that Art. 1191 cannot be applied to
contracts of partnership where one of the partners fails to pay
the whole amount which he has bound himself to contribute to
the common fund. In such a case, the provisions of Arts. 1786 and
1788 would be applicable. This is so because Art. 1191 refers to
the resolution of reciprocal obligations in general, while Arts. 1786
and 1788 refer to contracts of partnership in particular. And it is
a well-known principle that special provisions prevail over general
provisions.75
It must also be noted that the above article cannot be applied to
sales of real property or sales of personal property by installments.
The first is governed by the Recto Law (Arts. 1484 to 1486, Civil

72
Hanlon vs. Hausermann and Beam, 40 Phil. 796; De la Rama Steamship Co.
vs. Tan, 99 Phil. 1034.
73
De la Rama Steamship Co. vs. Tan, 99 Phil. 1034.
74
See also Froilan vs. Pan Oriental Shipping Co., 12 SCRA 276.
75
Sancho vs. Lizarraga, 55 Phil. 601.

138
DIFFERENT KINDS OF OBLIGATIONS Art. 1191
Pure and Conditional Obligations

Code), while the second is governed by the Maceda Law (Rep. Act
No. 6552).
Idem; Nature of Breach. — What must be the nature of
the breach which will entitle the injured party to file an action
for the rescission of the obligation? This question was answered
by the Supreme Court in the case of Song Fo & Co. vs. Hawaiian-
Philippine Co.76 The facts of this case are as follows: Plaintiff and
defendant had entered into a contract whereby the latter bound
itself to deliver to the former 300,000 gallons of molasses within a
certain period, payment to be made upon presentation of accounts
at the end of each month. It appears that a request for payment of
accounts for molasses delivered was sent to the plaintiff in January,
1923. Instead of paying at the end of said month, plaintiff defaulted
and paid only on February 20, 1923. Thereupon, defendant gave
notice to the plaintiff rescinding the contract for failure to pay at the
stipulated date. Subsequently, the plaintiff commenced this action
to recover damages from the defendant for breach of contract. The
question, therefore, which must be resolved is whether the defendant
company had the right to rescind the contract or not. The Supreme
Court held:

“The terms of payment fixed by the parties are controlling.


The time of payment stipulated in the contract should be treated
as of the essence of the contract. Theoretically, agreeable to
certain conditions which could easily be imagined, the Hawaiian-
Philippine Co. would have the right to rescind the contract
because of the breach of Song Fo & Co. But actually, there is
here present no outstanding fact which would legally sanction
the rescission of the contract by the Hawaiian-Philippine Co.
“The general rule is that rescission will not be permitted
for a slight or casual breach of the contract, but only for such
breaches as are substantial and fundamental as to defeat
the object of the parties in making the agreement. A delay in
payment for a small quantity of molasses for some twenty days
is not such a violation of an essential condition of the contract as
warrants rescission for nonperformance. Not only this, but the
Hawaiian-Philippine Co. waived this condition when it arose
by accepting payment of the overdue accounts and continuing

76
47 Phil. 821. See also Villanueva vs. Yulo, G.R. No. L-12985, Dec. 29, 1959;
Universal Food Corp. vs. Court of Appeals, 33 SCRA 1.

139
Art. 1191 OBLIGATIONS

with the contract. Thereafter, Song Fo & Co. was not in default
in payment so that the Hawaiian-Philippine Co. had in reality
no excuse for writing its letter of April 2, 1923, cancelling the
contract.
“We rule that the appellant has no legal right to rescind
the contract of sale because of the failure of Song Fo & Co. to pay
for the molasses within the time agreed upon by the parties.”

In Delta Motor Corp. vs. Gentino (170 SCRA 29), the Supreme
Court reiterated the rule that rescission will be ordered only where
the breach complained of is substantial as to defeat the object of
the parties in entering into the agreement. It will not be granted
where the breach is slight or casual. Thus, in a subsequent case of
Ang vs. CA (170 SCRA 2863) it was held that while it is true that in
reciprocal obligation, such as the contract of purchase and sale, the
power to rescind is implied and any of contracting parties may, upon
non-fulfillment by other party of his part of the obligation, resolve
the contract, rescission will not be permitted for a slight casual
breach of the contract.
Idem; Alternative remedies of injured party. — In case
one of the parties should not comply with what is incumbent upon
him, the injured party may choose between the fulfillment and the
rescission of the obligation, with the payment of damages in either
case. These remedies are alternative, not cumulative; in other
words, the injured party cannot seek both.77 Thus, in a case where
the lessee was unable to pay rentals for two months, holding that
the lessor has the right to rescind the contract of lease, the Supreme
Court declared:

“In Article 1124 (now Art. 1191) of the Civil Code it is


declared that an obligation may be resolved if one of the obligors
fails to comply with that which is incumbent upon him; and
it is declared that the person prejudiced may elect between
the fulfillment of the obligation (specific performance) and its
resolution, with compensation for damages and payment of
interest in either case. This general principle is substantially
reproduced in the special provisions of the Civil Code dealing

77
San Juan vs. Cotay, 26 Phil. 328; Rios vs. Jacinto, 49 Phil. 9; Heacock vs. Butal
Manufacturing Co., 66 Phil. 245; Magdalena Estate, Inc. vs. Myrick, 71 Phil. 344;
Ramirez vs. Court of Appeals, 52 Off. Gaz. 779; Castro vs. Lim, CA, 52 Off. Gaz. 2056;
Albert vs. Univ. Publishing Co., 104 Phil. 1054.

140
DIFFERENT KINDS OF OBLIGATIONS Art. 1191
Pure and Conditional Obligations

with the rights and obligations of lessors and lessees. In the first
paragraph of Article 1555 (now Art. 1657), it is declared to be
the duty of the lessee to pay the price of the lease in the manner
agreed upon. In Article 1556 (now Art. 1659), the failure of the
lessee to comply with this obligation is declared to be a found for
the rescission of the contract and the recovery of damages, or
the latter only, leaving the contract in force. It will thus be seen
that the lessor is permitted to elect between the two remedies
of (1) rescission, or resolution, with damages and (2) specific
performance, with damages.’’78

It must, however, be observed that even after the injured party


has chosen fulfillment and such fulfillment should become impossible,
he can still seek the rescission or resolution of the obligation.79 It
must also be observed that the right to choose between fulfillment
and rescission is not incompatible with an alternative prayer for
fulfillment or rescission in the complaint.80 As a matter of fact,
even if the plaintiff apparently seeks to avail of both remedies, the
presumption is that he is leaving the matter to the sound discretion
of the court.81
Idem; id. — Damages to be awarded. — Whether the injured
party chooses specific fulfillment or rescission, the rule is that he
can recover damages.82 In estimating the damages to be awarded in
case of rescission, only those elements of damages can be admitted
that are compatible with the idea of rescission; and of course, in
estimating the damages to be awarded in case the injured party
elects specific performance, only the elements of damages can be
admitted which are compatible with the idea of specific performance.
It follows that damages which would be inconsistent with the idea of
specific performance cannot be awarded in an action where rescission
is sought.83 Thus, in the case of the rescission of a contract of sale
for failure of the purchaser to pay the stipulated price, the seller is
entitled to be restored to the possession of the thing sold, if it has
already been delivered. But he cannot have both the thing sold and

78
Rios vs. Jacinto, et al., 49 Phil. 1.
79
Art. 1191, par. 2, Civil Code.
80
4 Tolentino, Civil Code, 1956 Ed., p. 172.
81
Mindanao Prospecting Ass. Inc. vs. Golden Gate Mining Co., CA, 48 Off. Gaz.
3955.
82
Art. 1191, par. 2, Civil Code.
83
Rios vs. Jacinto, et al., 49 Phil. 7.

141
Art. 1191 OBLIGATIONS

the price agreed upon for the resolution or rescission of the contract
has the effect of destroying the obligation to pay the price. Similarly,
in case of the rescission of a contract of lease, the lessor is entitled
to be restored to the possession of the leased premises but he cannot
have both the possession of the leased premises and the rent which
the other party had contracted to pay. The termination of the lease
has the effect of destroying the obligation to pay rent for the future.84
Idem; Judicial discretion to decree rescission. — Accord-
ing to the third paragraph of Art. 1191, the court shall decree the
rescission claimed, unless there is a just cause authorizing the fix-
ing of a period. It is clear from this provision that the right of the
injured party in reciprocal obligations to rescind in case of failure of
the other to comply with what is incumbent upon him is not absolute
in character. This is so because the court is given the discretionary
power to fix a period within which the obligor in default may be
permitted to comply with what is incumbent upon him.85 It must be
noted, however, that this rule cannot be applied to reciprocal obliga-
tions arising from a contract of lease. This is so because such obliga-
tions are governed by the provisions of Art. 1659 of the Code and not
by those of Art. 1191, and although Art. 1659 is practically a restate-
ment of Art. 1191, and there is, however, a difference, for whereas
under Art. 1191 courts have the discretionary power to refuse the
rescission of contracts if in their judgment the circumstances of the
case warrant the fixing of a term within which the obligor or debtor
may fulfill his obligation, under Art. 1659 there is no such discre-
tionary power granted to courts.86
Idem; Effect of rescission. — When an obligation has been
rescinded or resolved, it is the duty of the court to require the parties
to surrender whatever they may have received from the other; in
other words, the parties must be placed as far as practicable in
their original situation.87 This should, however, be understood to
be without prejudice to the liability of the party who was unable
to comply with what was incumbent upon him for damages.
Thus, where a contract of sale of a certain lot was rescinded by

84
Ibid.
85
Ocejo, Perez & Co. vs. International Banking Corp., 37 Phil. 361; Kapisanan
Banahaw vs. Dejarme, 55 Phil. 338; Puerto vs. Go Ye Pin, 47 Off. Gaz. 264.
86
Mina and Bacalla vs. Rodriguez, CA, 40 Off. Gaz. 65.
87
Po Pauco vs. Singuenza, 49 Phil. 404.

142
DIFFERENT KINDS OF OBLIGATIONS Art. 1191
Pure and Conditional Obligations

the vendor because of the failure of the vendee to pay for several
monthly installments, it was held that since the contract contains
no provision authorizing the vendor, in the event of the failure of
the vendee to continue in the payment of the stipulated monthly
installments, to retain the amounts already paid to him, the parties
should be restored as far as practicable to their original situation
which can be approximated only by ordering the return of the things
which are the object of the contract with their fruits and of the price
with its interests computed from the date of the institution of the
action.88 The rescission, however, may be partial in character.89
Idem; id. — Effect upon third persons. — According to
the fourth paragraph of Art. 1191, the decree of rescission shall be
understood to be without prejudice to the rights of third persons who
have acquired the thing in accordance with Arts. 1385 and 1388 and
the Mortgage Law. Consequently, the rescission of a contract can
no longer be demanded when he who demands it is no longer in a
position to return whatever he may be obliged to restore; neither can
it be demanded when the thing which is the object of the contract is
already legally in the possession of a third person who did not act in
bad faith.90 In such case, the only remedy of the injured party is to
proceed against the party responsible for the transfer or conveyance
for damages.91 However, if the third person had acquired the thing
in bad faith, the injured party can still go after the property. If for
any cause the thing can no longer be recovered, the only remedy of
the injured party is to proceed against the third person who had
acted in bad faith for damages.92

Problem — What is the effect if one of the obligors in


reciprocal obligations should not comply with what is incumbent
upon him?
Answer — The power to rescind obligations is implied in
reciprocal ones, in case one of the obligors should not comply
with what is incumbent upon him.
The injured party may choose between the fulfillment and
the rescission of the obligation, with the payment of damages

88
Magdalena Estate, Inc. vs. Myrick, 71 Phil. 344.
89
Tan Guat vs. Pamintuan, CA, 37 Off. Gaz. 2494.
90
Art. 1385, Civil Code.
91
Ibid.
92
Art. 1388, Civil Code.

143
Art. 1191 OBLIGATIONS

in either case. He may also seek rescission, even after he has


chosen fulfillment, if the latter should become impossible.
The court shall decree the rescission, unless there be just
cause authorizing the fixing of a period.
This is understood to be without prejudice to the rights
of third persons who have acquired the thing, in accordance
with Articles 1385 and 1388 and the Mortgage Law. (Art. 1191,
NCC.)
Problem — A sold a parcel of land to B for P20,000. In the
deed of sale, there is a stipulation that the purchase price shall
be paid on a certain date and that in case of failure to pay on
such a date, A can rescind the contract. Suppose that B fails to
pay on the date stipulated in the contract, is Article 1191 of the
NCC applicable? Why?
Answer — Art. 1191 is not applicable. Where the contract
itself contains a resolutory provision by virtue of which the
obligation may be cancelled or extinguished in case of breach,
judicial permission to rescind the contract is no longer necessary.
(Hanlon vs. Hausermann, 40 Phil. 796; De la Rama Steamship
Co. vs. Tan, 99 Phil. 1034.) The use of the word “implied” in the
article supports this conclusion. The right to rescind is “implied”
only if not expressly granted; no right can be said to be implied
if expressly recognized. Consequently, in the instant case, Art.
1191 is not applicable. The rule that is applicable is found in
Art. 1592 under the law on sales.
Problem — L leased a house to J. The contract stipulates
that in case of non-payment of the rent, L can eject L without
court action. J defaulted for two months. As a result, L ejected
him. Can J claim damages because the renunciation of his day
in court as stipulated in the contract is void? (1977)
Answer — J cannot claim damages because the renuncia-
tion of his day in court as stipulated in the contract is void. True,
under the NCC, in reciprocal obligations there is always a tacit
resolutory condition that if one party is unable to comply with
what is incumbent upon him, the injured party has the power
to rescind the obligation. (Art. 1191.) This is reiterated in the
law on lease. (Art. 1659.) True also, it is a well-settled rule that
the injured party must invoke judicial aid. But then, this rule
can be applied only to a case where the obligation is silent with
respect to the power to rescind. The right to rescind is implied
only if not expressly granted; no right can be said to be implied
if expressly recognized. This is also well-settled. In the instant

144
DIFFERENT KINDS OF OBLIGATIONS Art. 1191
Pure and Conditional Obligations

case, the right of L to eject J without a court action in case of


non-payment of the rent was expressly recognized in the con-
tract itself. What L did was merely to enforce what was agreed
upon.
Problem — (a) Are the provisions of Art. 1191 of the New
Civil Code applicable to obligations arising from contracts of
lease or of partnership? Explain.
(b) What must be the nature or character of the breach
which will justify the injured party in bringing an action either
for fulfillment of the obligation plus damages or for rescission
plus damages?
Answer — (a) In the case of obligations arising from a
contract of lease, what are applicable are the provisions of Art.
1659 of the New Civil Code and not those of Art. 1191. Although
Art. 1659 is practically a restatement of Art. 1191, yet there
is a difference. Under Art. 1191, courts have the discretionary
power to refuse the rescission of contracts if in their judgment
the circumstances of the case warrant the fixing of a term within
which the obligor may fulfill the obligation, while under Art.
1659, there is no such discretionary power granted to courts.
(Mina and Bacalla vs. Rodriguez, CA, 40 Off. Gaz. 65.)
In the case of obligations arising from a contract of
partnership, as a general rule, Art. 1191 is applicable. However,
this article cannot be applied where one of the partners fails to
pay the whole amount which he has bound to contribute to the
common fund. This is so because in such case Arts. 1786 and
1788 of the NCC are applicable. These provisions are particular
provisions. Consequently, they prevail over the general
provisions of Art. 1191 which refer to the resolution of reciprocal
obligations in general. (Sancho vs. Lizarraga, 55 Phil. 601.)
(b) The general rule is that rescission will not be per-
mitted for a slight or casual breach of the contract, but only for
such breaches as are substantial or fundamental as to defeat the
object of the parties in making the agreement. Consequently, a
delay in payment for a small quantity of molasses for some 20
days is not such a violation of an essential condition as war-
rants rescission for non-performance. (Song Fo vs. Hawaiian-
Philippine Co., 47 Phil. 821; Villanueva vs. Yulo, L-12985, Dec.
29, 1959; Universal Food Corp. vs. Court of Appeals, 33 SCRA
1.)

145
Arts. 1192-1193 OBLIGATIONS

Art. 1192. In case both parties have committed a breach


of the obligation, the liability of the first infractor shall be
equitably tempered by the courts. If it cannot be determined
which of the parties first violated the contract, the same
shall be deemed extinguished, and each shall bear his own
damages.93

Effect of Breach by Both Parties. — The above rules are


deemed just. The first one is fair to both parties because the second
infractor also derived, or thought he would derive, some advantage
by his own act or neglect. The second rule is likewise just because
it is presumed that both at about the same time tried to reap some
benefit.94

Section 2. — Obligations with a Period

Art. 1193. Obligations for whose fulfillment a day certain


has been fixed, shall be demandable only when that day
comes.
Obligations with a resolutory period take effect at once,
but terminate upon arrival of the day certain.
A day certain is understood to be that which must
necessarily come, although it may not be known when.
If the uncertainty consists in whether the day will come
or not, the obligation is conditional, and it shall be regulated
by the rules of the preceding section.95

Concept of Term or Period. — According to Manresa’s classic


definition, a term or period is an interval of time, which, exerting
an influence on an obligation as a consequence of a juridical act,
either suspends its demandability or produces its extinguishment.96
Hence, obligations with a period may be defined as those whose
demandability or extinguishment is subject to the expiration of a
term or period.

93
New provision.
94
Report of the Code Commission, p. 130.
95
Art. 1125, Spanish Civil Code, in amended form.
96
8 Manresa, 5th Ed., Bk. 1, p. 370.

146
DIFFERENT KINDS OF OBLIGATIONS Arts. 1192-1193
Obligations with a Period

Idem; Distingished from condition. — A term or period


must not be confused with a condition. As we have already seen,
a condition is a future and uncertain fact or event upon which an
obligation is made to depend. Hence, the two may be distinguished
from each other in the following ways:
(1) As to requisites: While a term or period refers to an inter-
val of time which is future and certain, a condition refers to a fact or
event which is future and uncertain.
(2) As to fulfillment: While a term or period is an interval of
time which must necessarily come, although it may not be known
when, a condition is a future and uncertain fact or event which may
or may not happen.97
(3) As to influence on obligation: While a term or period
merely exerts an influence upon the time of the demandability or
extinguishment of an obligation, a condition exerts an influence
upon the very existence of the obligation itself.98
(4) As to retroactivity of effects: While a term or period does
not have any retroactive effect unless there is an agreement to the
contrary, a condition has retroactive effects.
(5) As to effect of will of debtor: When a term or period is left
exclusively to the will of the debtor, the existence of the obligation is
not affected, but when a condition is left exclusively to the will of the
debtor, the very existence of the obligation is affected.99
Classification of Term or Period. — A term or period may
be classified as follows:
(1) Suspensive or resolutory.— According to the first and
second paragraphs of Art. 1193, a period may be suspensive (ex die)
or resolutory (in diem). It is suspensive when the obligation becomes
demandable only upon the arrival of a day certain; it is resolutory
when the obligation is demandable at once, although it is terminated
upon the arrival of a day certain. Day certain is defined in the third
paragraph of the article. Thus, if A donates a parcel of land to B to be
delivered after his death, there is a suspensive term. The time of the

97
Ibid., p. 370.
98
Ibid., p. 371.
99
Arts. 1197, 1182, Civil Code.

147
Arts. 1192-1193 OBLIGATIONS

death of the donor is a day certain because it must necessarily come,


although it may not be known when. On the other hand, if C donates
the usufruct or use and enjoyment of a house and lot to D for ten
years, the term is resolutory. As soon as the donation is perfected, D
can demand the delivery of the house and lot immediately. However,
after the expiration of ten years, he will have to return the house
and lot to the donor.
(2) Legal, conventional or judicial. — A period may also be
legal, conventional or judicial. It is legal when it is granted by law;
conventional, when it is stipulated by the parties; and judicial, when
it is fixed by the courts. Examples of legal periods are those provided
for in Arts. 1606, 1623, 1682, and 1687 of the Code. Judicial periods
will be discussed at length in a subsequent part of this section.
(3) Definite or indefinite. — A period may also be definite or
indefinite. This classification can be deduced from the provision of
the third paragraph of Art. 1193 which states that a day certain is
understood to be that which must necessarily come, although it may
not be known when. From this it is evident that a period is definite
when the date or time is known beforehand, and indefinite when it
can only be determined by an event which must necessarily come to
pass, although it may not be known when.
If the happening of a future event is fixed by the parties for
the fulfillment or extinguishment of an obligation, what is the
nature of the obligation — is it with a term or is it conditional? This
question requires a qualified answer. If the event will necessarily
happen or come to pass, although it may not be known when, the
event constitutes a day certain; hence, the obligation is one with a
term.100 However, if the uncertainty consists in whether the event
will happen or come to pass, such event constitutes a condition;
hence, the obligation is conditional.101 Thus, if the death of a person
is fixed by the parties for the demandability or extinguishment of
the obligation, it is clear that the obligation is one with a term or
period because death is an event which will certainly come, although
the date or time when it will come is uncertain. The same is true
when the parties enter into a contract whereby it is agreed that the
obligation cannot be performed “while the war goes on.” Although

100
Art. 1193, par. 3, Civil Code.
101
Art. 1193, par. 4, Civil Code.

148
DIFFERENT KINDS OF OBLIGATIONS Arts. 1192-1193
Obligations with a Period

the date of the termination of the war may be uncertain yet there
is no question that the termination of the war must necessarily
come.102 However, if the obligor or debtor binds himself to perform
his obligation as soon as he has obtained a loan of P400,000 from a
certain bank, it is clear that the granting of such loan is not definite.
Consequently, it cannot be considered a day certain, for it may or it
may not happen, the obligation is conditional.103
Effects of Term or Period. — If the term or period is sus-
pensive, the fulfillment or performance of the obligation is demand-
able only upon the arrival of the day certain or the expiration of the
term.104 What is therefore suspended by the term is not the acquisi-
tion of the right or the effectivity of the obligation but merely its de-
mandability. In other words, the obligation itself becomes effective
upon its constitution or establishment, but once the term or period
expires it becomes demandable. However, if the term or period is
resolutory, the fulfillment or performance of the obligation is de-
mandable at once, but it is extinguished or terminated upon the ar-
rival of the day certain or the expiration of the term.105

Phil. National Bank vs. Lopez Vito


52 Phil. 41

This action is for the recovery of a mortgage credit. It


appears that the defendant spouses had mortgaged certain
realty to secure the payment of a loan of P24,000 granted to
them by the plaintiff. It was agreed under the mortgage contract
that payment was to be made in ten annual installments at an
interest of 8 per cent per annum. Defendants, however, failed
to pay the sums corresponding to six yearly installments. The
question presented is with regard to the effect of defendants’
failure to pay those installments which are due and demandable
upon those which, normally, are not yet due and demandable.
Held: “It is undeniable that the effect of the period agreed
upon by the parties is to suspend the demandability of the
obligation, in accordance with Article 1125 (now Art. 1193) of the
Civil Code, which provides that obligations for the performance

102
Nepomuceno vs. Narciso, 84 Phil. 542.
103
Berg vs. Magdalena Estate, 92 Phil. 110; see also Smith, Bell & Co. vs. Sotelo
Matti, 44 Phil. 874.
104
Art. 1193, par. 1, Civil Code.
105
Art. 1193, par. 2, Civil Code.

149
Arts. 1192-1193 OBLIGATIONS

of which a day certain has been fixed shall be demandable


only when that day arrives. But the defendants’ right to avail
themselves of the period was by the will of the contracting
parties themselves made subject to the resolutory condition
contained in paragraph 5 of the contract. Said condition has
resolutory effects, since its fulfillment resolves the period
and leaves the creditor at liberty to demand the performance
of the debtor’s obligation and to proceed to the foreclosure of
the mortgage. According to the contract entered into by the
parties, the obligation of the mortgagors was to pay the debt
in yearly installments on a fixed day of each year, until it has
been fully satisfied, but in case of nonfulfillment of any of the
stipulations and conditions of the mortgage, such as the failure
to pay any of the annual installments, the mortgagee could
declare said stipulations and conditions violated and proceed to
the foreclosure of the mortgage in accordance with law. We are
of the opinion that the nonfulfillment of the conditions of the
contract renders the period ineffective, and makes the obligation
demandable at the will of the creditor.”

Idem; Effect of fortuitous event. — In obligations with a


term or period, any stipulation in the contract to the effect that in
case of a fortuitous event the contract shall be deemed suspended
during the term or period does not mean that the happening of the
fortuitous event shall stop the running of the term or period agreed
upon. Its only effect is to relieve the contracting parties from the
fulfillment of their respective obligations during the term or period.106

Problem — X Co. and Y Co. entered into a contract


whereby the latter agreed that the sugar cane which it will
produce shall be milled by the former for a period of 30 years. It
was stipulated that in case of any fortuitous event, the contract
shall be suspended during said period. For 4 years during the
last war and for 2 years after liberation when the mill of X Co.
was being rebuilt, Y Co. failed to deliver its sugar cane to the
central of X Co. After the expiration of the 30-year period, Y
Co. stopped the delivery of its sugar cane to the central of X Co.
Subsequently, X Co. brought an action against Y Co. in order
to compel the latter to deliver its sugar cane for 6 additional
years on the ground that the fortuitous event had the effect of
stopping the running of the term or period agreed upon. Will the
action prosper? Reasons.

106
Victoria Planters vs. Victorias Milling Co., 97 Phil. 318.

150
DIFFERENT KINDS OF OBLIGATIONS Arts. 1194-1195
Obligations with a Period

Answer — The facts stated in the above problem are exactly


the same as those in the case of Victorias Planters vs. Victorias
Milling Co., 97 Phil. 318, where the SC held that the effect of
a fortuitous event upon the term or period agreed upon is not
to stop the running of the term or period but merely to relieve
the contracting parties from the fulfillment of their respective
obligations during the pendency of the event. According to the
SC:
“Fortuitous event relieves the obligor from fulfilling
a contractual obligation. The stipulation in the contract
that in the event of flood, typhoon, earthquake, or
other force majeure, war, insurrection, civil commotion,
organized strike, etc., the contract shall be deemed
suspended during said period, does not mean that the
happening of any of these events stops the running of the
period agreed upon. It only relieves the parties from the
fulfillment of their respective obligations during that time
— the planters from delivering sugar cane and the central
from milling it. x x x To require the planters to deliver
the sugar cane which they failed to deliver during the four
years of the Japanese occupation and the two years after
liberation when the mill was being rebuilt is to demand
from the obligors the fulfillment of an obligation which
was impossible of performance at the time it became due.
Memo tenetur ad impossibilia. x x x The performance of
what the law has written off cannot be demanded and
required. The prayer that the plaintiffs be compelled to
deliver was impossible, if granted, would in effect be an
extension of the term of the contract entered into by and
between the parties.’’

Art. 1194. In case of loss, deterioration or improvement


of the thing before the arrival of the day certain, the rules of
Article 1189 shall be observed.107
Art. 1195. Anything paid or delivered before the arrival
of the period, the obligor being unaware of the period or
believing that the obligation has become due and demandable,
may be recovered, with the fruits and interests.108

107
New Provision.
108
Art. 1126, Spanish Civil Code, in amended form.

151
Art. 1196 OBLIGATIONS

Effect of Advanced Payment or Delivery. — Under


Art. 1195 of the Code, if the obligor, being unaware of the period
or believing that the obligation has become due and demandable,
paid or delivered anything before the arrival or expiration of the
period, he may recover what he has paid or delivered with fruits and
interests. This rule is different from that found in Art. 1126 of the
Spanish Civil Code which states that the obligor may recover only
the fruits or interests which the obligee may have received from the
thing. The Code Commission explains the reason for the change in
the following manner:

“The present article (Art. 1126, Civil Code of Spain) is


unjust. The thing or sum not being due when it was delivered or
paid, why should only the interest be returned? Why should not
the thing or sum delivered be returned to the debtor if he was
unaware of the period or if he believed that the obligation had
become due and demandable? The present article is contrary to
the manifest intention of the parties.’’109

It is obvious that the above article (Art. 1195) can only apply
to obligations to give. It is also obvious that before the rule can be
applied the payment or delivery must have been made by the debtor
either because he was unaware of the period or he believed that the
obligation had become due and demandable. Consequently, if the
payment or delivery was made voluntarily or with knowledge of the
period or of the fact that the obligation has not yet become due and
demandable, there can be no right of recovery whatsoever.

Art. 1196. Whenever in an obligation a period is


designated, it is presumed to have been established for the
benefit of both the creditor and debtor, unless from the tenor
of the same or other circumstances it should appear that the
period has been established in favor of one or of the other.110
Benefit of Term or Period. — The general rule is that
when a period is designated for the performance or fulfillment of an
obligation, it is presumed to have been established for the benefit of
both the creditor and the debtor. Consequently, as a general rule, the

109
Report of the Code Commission, pp. 130-131.
110
Art. 1227, Spanish Civil Code.

152
DIFFERENT KINDS OF OBLIGATIONS Art. 1196
Obligations with a Period

creditor cannot demand the performance of the obligation before the


expiration of the designated period; neither can the debtor perform
the obligation before the expiration of such period.111 Thus, it has
been held that in a monetary obligation contracted with a period,
the debtor has no right, unless the creditor consents, to accelerate
the time of payment even if the tender includes an offer to pay not
only the principal, but also the interests in full.112 This is very well
illustrated by the case of De Leon vs. Syjuco.113 In 1944, during the
Japanese occupation, the debtor borrowed P216,000 in Japanese
military notes from the creditor, promising to pay “within one year
from May 5, 1948” in the legal tender of the Philippines. In the later
part of 1944, after the Americans had landed in the Philippines,
he tendered payment of the principal including interest up to
the date of maturity. The creditor refused to accept the payment.
Subsequently, he deposited the entire amount with the clerk of
court. After liberation, he brought an action against the creditor to
compel him to accept the amount deposited. The Supreme Court,
however, held that the refusal of the creditor to accept the tender of
payment was justified in view of the fact that the term or period in
this case is presumed to have been established for the benefit of both
the creditor and the debtor in accordance with Art. 1196 of the Code;
consequently, the consignation made by the debtor is not valid. It
may be argued that the creditor has nothing to lose and everything
to gain by the acceleration of payment. There are, however, several
reasons why the creditor cannot be compelled to accept payment.
They are: first, payment of interest; second, the creditor may want
to keep his money invested safely instead of having it in his hands,
in which case, by fixing the period, he is thus able to protect himself
against sudden decline in the purchasing power of the currency
loaned especially at a time when there are many factors that
influence the fluctuation of the currency;114 and third, under the
Usury Law, there is a special prohibition of payment of interest in
advance for more than one year.115

111
8 Manresa, 5th Ed., Bk. 1, p. 381; Sarmiento vs. Javellana, 38 Phil. 880.
112
Nicolas vs. Matias, 89 Phil. 126; De Leon vs. Syjuco, 90 Phil. 311; Osorio vs.
Salutillo, 48 Off. Gaz. 103; Garcia vs. De los Santos, 49 Off. Gaz. 4830; Ochoa vs.
Lopez, CA, 50 Off. Gaz. 5890.
113
90 Phil. 311.
114
Ponce de Leon vs. Syjuco, 90 Phil. 311.
115
Nicolas vs. Matias, 89 Phil. 126.

153
Art. 1197 OBLIGATIONS

Idem; Exception. — However, if it can be proved either from


the tenor of the obligation or from other circumstances that the
period or term has been established in favor of the creditor or of the
debtor, the general rule or presumption will not apply. Hence, if it
should appear that such period has been established for the benefit
of the creditor, he may demand the fulfillment or performance of
the obligation at any time, but the obligor or debtor, on the other
hand, cannot compel him to accept payment before the expiration of
the period. If it should appear that the period has been established
in favor of the obligor or debtor, he may oppose any premature
demand on the part of the obligee or creditor for performance of the
obligation, or if he so desires, he may renounce the benefit of the
period by performing his obligation in advance.116 Thus, if the debtor
executed a promissory note promising to pay his indebtedness to the
creditor “al plazo de cinco años contados desde esta fecha’’ or within
a period of five years to be counted from this date, it is evident that
the term or period is for the benefit of the debtor; consequently, he
can compel the creditor to accept the payment at any time within
the stipulated period.117 But if the debtor executed a promissory
note promising to pay his indebtedness “four years after date,’’ the
presumption is that the term or period is for the benefit of both the
creditor and the debtor; consequently, the debtor cannot compel the
creditor to accept the payment until after the expiration of the four-
year period.118

Art. 1197. If the obligation does not fix a period, but from
its nature and the circumstances, it can be inferred that a
period was intended, the courts may fix the duration thereof.
The courts shall also fix the duration of the period when
it depends upon the will of the debtor.
In every case, the courts will determine such period as
may under the circumstances have been probably contem-
plated by the parties. Once fixed by the courts, the period
cannot be changed by them.119

116
8 Manresa, 5th Ed., Bk. 1, pp. 381-382.
117
Sia vs. Court of Appeals, 48 Off. Gaz. 5259.
118
Garcia vs. De los Santos, 49 Off. Gaz. 4830.
119
Art. 1128, Spanish Civil Code, in amended form.

154
DIFFERENT KINDS OF OBLIGATIONS Art. 1197
Obligations with a Period

Judicial Term or Period. — A term or period is judicial when


the duration thereof is fixed by a competent court in accordance with
the causes expressly recognized by law. Once fixed by a competent
court, the period can no longer be judicially changed.120
Idem; When court may fix term. — Under Art. 1197, there
are two cases where the courts are empowered to fix the duration
of the term or period. They are: first, if the obligation does not fix a
period, but from its nature and the circumstances it can be inferred
that a period was intended by the parties; and second, if the duration
of the period depends upon the will of the debtor. We might add a
third — if the debtor binds himself to pay when his means permit
him to do so.121 Strictly speaking, however, this case properly falls
within the purview of the second, because in such a case the power
to determine when the obligation will be fulfilled is in effect left
exclusively to the will of the debtor.
If the obligation does not fix a period, but from its nature and
the circumstances it can be inferred that a period was intended, the
courts may fix the duration thereof.122 Thus, where the donor donated
to the city of Manila a parcel of land subject to the condition that
it shall be converted into a public square, but the deed of donation
is silent with regard to the term or period for the fulfillment of
the condition, it is evident from the very nature of the condition
that a term or period is intended by the parties for its fulfillment;
consequently, the court may fix the duration thereof.123 The same
is true if the parties failed to fix a definite period within which the
obligor was to complete the construction of a house. It is clear that
in such a case they intended some period but did not specify it;
consequently, the fulfillment of the obligation cannot be demanded
from the obligor until after the courts have fixed the period for
compliance therewith, and such period has arrived.124
It must be observed, however, that the mere silence of the
obligation with regard to the term or period for its fulfillment does
not necessarily mean that the courts are empowered to fix the
duration thereof. In the first place, the remedy cannot be applied to

120
Art. 1197, Civil Code.
121
Art. 1180, Civil Code.
122
Art. 1197, par. 1, Civil Code.
123
Barretto vs. City of Manila, 7 Phil. 416.
124
Concepcion vs. People of the Phil. 74 Phil. 163.

155
Art. 1197 OBLIGATIONS

contracts for services in which no period was fixed by the parties.


In such contracts the period of employment is understood to be
implicitly fixed, in default of express stipulation, by the period for
the payment of the salary of the employee, in accordance with the
custom universally observed throughout the world.125 In the second
place, it cannot be applied to pure obligations.126 Thus, according to
Manresa:

“While that which is contemplated by the first paragraph


of this article appears to be a limitation upon the efficacy and
the immediate demandability of pure obligations, in reality, it
is different; in pure obligations there is no intention to grant a
period, otherwise they would not be pure; under this paragraph,
such an intention exists. For this reason in the case of the first,
there is no limitation upon the demandability of the obligation by
the creditor; rather its fulfillment by the debtor is facilitated; on
the other hand, in the case of the second, since there is actually
a period, there is a limitation upon that demand- ability.”127

If the duration of the term or period depends exclusively upon


the will of the debtor, the court may also fix the duration thereof.128
This rule is just and logical, because, otherwise, there would
always be the possibility that the obligation will never be fulfilled
or performed. Thus, where the debtor has executed a promissory
note promising to pay his indebtedness to the creditor “in partial
payments,”129 or “little by little,’’130 or “as soon as possible,”131 or “as
soon as he has money,’’132 it is clear that the duration of the term or
period for the fulfillment of the obligation depends exclusively upon
the will of the debtor; consequently, the remedy of the creditor is to
bring an action against the debtor in accordance with the provision
of Art. 1197 in order to ask the court to fix the duration thereof. The
same remedy is also available to the lessor where it is expressly
stipulated in the contract of lease that the duration of the lease shall

125
Barretto vs. Santa Marina, 26 Phil. 440.
126
People’s Bank vs. Odom, 64 Phil. 126.
127
8 Manresa 158, quoted in Patente vs. Omega, 49 Off. Gaz. 4846.
128
Art. 1197, par. 2, Civil Code.
129
Levy Hermanos vs. Paterno, 18 Phil. 353.
130
Seone vs. Franco, 24 Phil. 309.
131
Gonzales vs. Jose, 66 Phil. 369.
132
Patente vs. Omega, 49 Off. Gaz. 4846.

156
DIFFERENT KINDS OF OBLIGATIONS Art. 1197
Obligations with a Period

depend exclusively upon the will of the lessee.133 And where there is
an agreement between the employer and the union representatives
representing its employees and laborer regarding the payment
of salary differentials which had remained unpaid because of the
exhaustion of the funds appropriated for the purpose, the obligation
to pay said salary differentials may be considered as one with a
term whose duration has been left to the will of the debtor, so that
pursuant to Art. 1197 of the Code, the remedy of the employees
and laborers is to ask the courts to fix the duration of the term, it
being admitted that in a going concern the availability of funds for
a particular purpose is a matter that does not necessarily depend
upon the cash position of the company but rather upon the judgment
of its board of directors.134

Gonzales vs. Jose


66 Phil. 369

This action was instituted by the plaintiff to recover from


the defendant the amount of two promissory notes worded as
follows:
“I promise to pay Mr. Benito Gonzales the sum of four
hundred three pesos and fifty-five centavos (P403.55) as soon as
possible.

Anterior ........................................................... P71.10


474.65
Sept. 12, 1922 .................................................. 300.00
Balance ............................................................ 174.65
“Manila, June 22, 1922.

(Sgd.) “FLORENTINO DE JOSE’’


“Quezon, Nueva Ecija’’

“I promise to pay Mr. Benito Gonzales the sum of three


hundred and seventy-three pesos and thirty centavos (P373.30)
as soon as possible.

(Sgd.) “FLORENTINO DE JOSE”

133
Eleizegui vs. Manila Lawn Tennis Club, 2 Phil. 309.
134
Tiglao vs. Manila Railroad Co., Off. Gaz. 179.

157
Art. 1197 OBLIGATIONS

“Defendant appealed from the decision of the Court of


First Instance of Manila ordering him to pay the plaintiff the
sum of P547.95 within thirty days from the date of notification
of said decision, plus the costs.
In his answer the defendant interposed the special
defenses that the complaint is uncertain inasmuch as it does
not specify when the indebtedness was incurred or when it
was demandable, and that, granting that the plaintiff has any
cause of action, the same has prescribed in accordance with law.
Resolving the defense of prescription, the trial court held that
the action for the recovery of the amount of the two promissory
notes has not prescribed in accordance with Article 1128 (now
Art. 1197) of the Civil Code, which provides:

“Art. 1128. If the obligation does not specify a term,


but it is to be inferred from its nature and circumstances
that it was intended to grant the debtor time for its
performance, the period of the term shall be fixed by the
court.
“The court shall also fix the duration of the term
when it has been left to the will of the debtor.”
It is practically admitted by the parties that the obligations
arising from the two promissory notes should be governed by
said article, inasmuch as it was the intention of the plaintiff,
evidenced by the terms of the said notes, to grant the debtor a
period within which to pay the debts. The four errors assigned
by the defendant turn on the applicability of Article 1128 (now
Art. 1197) and on the prescription of the action brought by the
plaintiff. The defendant contends that Article 1113 (now Art.
1179) of the Civil Code should be applied inasmuch as the
obligations derived from the promissory notes were demandable
from the time of their execution, and adds that even supposing
that Article 1128 is applicable, the action to ask the court to fix
the period had already prescribed in accordance with Section
43(1) of the Code of Civil Procedure.
The Supreme Court, speaking through Justice Imperial
held:
“We hold that the two promissory notes are governed
by Article 1128 (now Art. 1197) because under the terms
thereof the plaintiff intended to grant the defendant a
period within which to pay his debts. As the promissory
notes do not fix this period, it is for the court to fix the
same. (Eleizegui vs. Manila Lawn Tennis Club, 2 Phil.
309; Barretto vs. City of Manila, 7 Phil. 416; Floriano vs.

158
DIFFERENT KINDS OF OBLIGATIONS Art. 1197
Obligations with a Period

Delgado, 11 Phil. 154; Levy Hermanos vs. Paterno, 18


Phil. 353.) The action to ask the court to fix the period
has already prescribed in accordance with Section 43(1) of
the Code of Civil Procedure. This period of prescription is
ten years, which has already elapsed from the execution
of the promissory note until the filing of the action on
June 1, 1934. The action which should be brought in
accordance with Article 1128 (now Art. 1197) is different
from the action for the recovery of the amount of the notes,
although the effects of both are the same, being, like other
civil actions, subject to the rules of prescription.
“The action brought by the plaintiff having already
prescribed, the appealed decision should be reversed
and the defendant absolved from the complaint, without
special pronouncement as to the costs in both instances.
So ordered.”

Problem — D borrowed P2,000 from C in 1958. The debt


is evidenced by a promissory note executed by D wherein he
promised to pay as soon as he has money or as soon as possible.
C has made repeated demands upon D for payment, but up to
now no payment has been made. Suppose that C will bring an
action against D for payment of the debt, will the action prosper?
(1973 Bar Problem)
Answer — No, the action will not prosper. In similar cases
decided by the Supreme Court (Gonzales vs. Jose, 66 Phil. 369;
Patente vs. Omega, 49 Off. Gaz. 4846), it was held, that where
the debtor promises to pay his obligation as soon as he has
money or as soon as possible, the duration of the term or period
depends exclusively upon the will of the debtor; consequently,
the only remedy of the creditor is to bring an action against the
debtor in accordance with Art. 1197 of the Civil Code for the
purpose of asking the court to fix the duration of the term or
period. It is only after the duration of the term or period has
been fixed by the court that any other action involving the
fulfillment or performance of the obligation can be maintained.
This has always been the consistent doctrine in this jurisdiction.

From what has been stated, it is quite clear that the effect of a
potestative term or period is very different from that of a potestative
condition. The latter cannot be left to the will of the debtor because
it affects the very existence of the obligation itself, since what is
delegated to the debtor is the power to determine whether or not
the obligation shall be fulfilled; the former, on the other hand, can

159
Art. 1197 OBLIGATIONS

be left to the will of the debtor because its influence does not go as
far as to determine the existence of the obligation, since what is
delegated to the debtor is merely the power to determine when the
obligation shall be fulfilled, but in order to prevent the obligation
contracted from becoming ineffective by nonfulfillment the courts
must fix the duration of the term or period.135
This article also applies to a lease agreement, where a contract
of lease clearly exists. Thus, the SC in the case of Millare vs.
Hernando (151 SCRA 484), it held that the first paragraph of Article
1197 is clearly inapplicable, since the Contract of Lease did in fact
fix an original period of five years, which had expired. It is also clear
from paragraph 13 of the Contract of Lease that the parties reserved
to themselves the faculty of agreeing upon the period of the renewal
contract. The second paragraph of Article 1197 is equally clearly
inapplicable since the duration of the renewal period was not left to
the will of the lessee alone, but rather to the will of both the lessor
and the lessee. Most importantly, Article 1197 applies only where a
contract of lease clearly exists. Here, the contract was not renewed
at all, there was in fact no contract at all the period of which could
have been fixed.
Idem; Nature of action. — The only action that can be
maintained under Art. 1197 is an action to ask the court to fix the
duration of the term or period. It is only after the duration has
been fixed by a proper court that any other action involving the
fulfillment or performance of the obligation can be maintained.136
Thus, an action brought purely for the collection of a debt which falls
within the purview of the article is obviously improper, because the
fulfillment of the obligation itself cannot be demanded until after
the court has fixed the period for its compliance and such period has
expired.137 Consequently, so long as such period has not yet been
fixed by the court, legally, there can be no possibility of any breach of
contract or of failure to perform the obligation, and if it so happens
that this point was never raised before the trial court, the creditor
cannot be allowed to raise it for the first time on appeal.138

135
8 Manresa 158, quoted in Patente vs. Omega, 49 Off. Gaz. 4846.
136
Eleizegui vs. Manila Lawn Tennis Club, 2 Phil. 309; Seone vs. Franco, 24 Phil.
309; Gonzales vs. Jose, 66 Phil. 369.
137
Ungson vs. Lopez, CA, 50 Off. Gaz. 4297, citing Gonzales vs. Jose, 66 Phil. 369,
and Concepcion vs. People of the Phil., 74 Phil. 62.
138
Pages vs. Basilan Lumber Co., 104 Phil. 882.

160
DIFFERENT KINDS OF OBLIGATIONS Art. 1197
Obligations with a Period

In the case of Pacific Banking Corp. vs. CA (173 SCRA 102),


the Supreme Court reiterated the rule that if the obligation has
no fixed period, a party is precluded from enforcing it. Thus, it
held that even the pledge which modified the fixed period in the
original promissory note, did not provide for date of payment of
installments, nor of any fixed date of maturity of the whole amount of
indebtedness. Accordingly, the date of maturity of the indebtedness
should be determined by the proper court under Art. 1197 of the
Civil Code. Hence, the disputed foreclosure and subsequent sale
were premature.
It is not, however, necessary that the creditor, in his complaint,
must expressly ask the court to fix the duration of the term or
period. Where the essential allegations of the pleadings describe an
obligation with an indefinite period, the court can fix the duration of
such period although the complaint does not ask for such relief. For
this purpose two ultimate facts should be alleged in the complaint.
They are: (1) facts showing that a contract was entered into imposing
on one of the parties an obligation in favor of the other; and (2) facts
showing that the performance of the obligation was left to the will
of the obligor, or clearly showing or from which an inference can be
reasonably drawn that a period was intended.139
It must also be noted that the action recognized in Art. 1197
may also prescribe like any ordinary civil action. Thus, in an action
to ask the court to fix the duration of the period for the performance
of an obligation which is evidenced by a promissory note filed after
the lapse of ten years from the time of the execution of the note, it
was held that the action had already prescribed.140
Idem; Effect of judicial period. — Once fixed by the courts,
the period can no longer be judicially changed.141 This is so because
from the very moment the parties gave their consent to the period
fixed by the court, said period acquires the nature of a covenant; in
other words, it becomes a law governing their contract; consequently,
the courts can have no power to change or modify the same.142

139
Schenker vs. Gemperle, 5 SCRA 1042.
140
Gonzales vs. Jose, 66 Phil. 369.
141
Art. 1197, par. 3, Civil Code.
142
Barretto vs. City of Manila, 11 Phil. 624.

161
Art. 1197 OBLIGATIONS

Problem — “M’’ and “N’’ were very good friends. “N’’ bor-
rowed P10,000.00 from “M.” Because of their close relationship,
the promissory note executed by “N’’ provided that he would pay
the loan “whenever his means permit.” Subsequently, “M’’ and
“N’’ quarelled. “M” now asks you to collect the loan because he is
in dire need of money.
What legal action, if any, would you take in behalf of “M”?
(1980 Bar Problem)
Answer — “M” must bring an action against “N’’ for the
purpose of asking the court to fix the duration of the term or
period for payment. According to the Civil Code, when the
debtor binds himself to pay when his means permit him to do so,
the obligation shall be deemed to be one with a period, subject
to the provisions of Art. 1197. In other words, it shall be subject
to those provisions of the Code with respect to obligations with a
term or period which must be judiciary fixed. Thus, in the instant
case, the court shall determine such period as may under the
circumstances have been probably contemplated by the parties.
Once determined or fixed, it becomes a part of the covenant
of the two contracting parties. It can no longer be changed by
them. If the debtor defaults in the payment of the obligation
after the expiration of the period fixed by the court, the creditor
can then bring an action against him for collection. Any action
for collection brought before that would be premature. This is
well-settled.
(Note: The above answer is based on Arts. 1180 and
1197 of the Civil Code and on Gonzales vs. Jose, 66 Phil. 369;
Concepcion vs. People of the Phil. 74 Phil. 62; Pages vs. Basilan,
104 Phil. 882, and others.)
Alternative Answer — Normally, before an action for
collection may be maintained by “M” against “N,’’ the former
must first bring an action against the latter asking the court to
fix the duration of the term or period of payment. However, an
action combining such action with that of an action for collection
may be allowed if it can be shown that a separate action for
collection would be a mere formality because no additional proofs
other than the admitted facts will be presented and would serve
no purpose other than to delay. Here, there is no legal obstacle
to such course of action.
(Note: The above alternative answer is based on Borromeo
vs. Court of Appeals, 47 SCRA 65.
Probably, if we combine the two answers given above, the
result would be a much more impressive answer.)

162
DIFFERENT KINDS OF OBLIGATIONS Art. 1198
Obligations with a Period

Problem — “A” Corporation, engaged in the sale of subdi-


vision residential lots, sold to “B” a lot of 1,000 square meters.
The contract provides that the corporation should put up an ar-
tesian well with tank, within a reasonable time from the date
thereof and sufficient for the needs of the buyers. Five years
thereafter, and no well and tank have been put up by the cor-
poration, “B” sued the corporation for specific performance. The
corporation set up a defense that no period having been fixed,
the court should fix the period. Decide with reason. (1982 Bar
Problem)
Answer — The action for specific performance should be
dismissed on the ground that it is premature. It is clear that
the instant case falls within the purview of obligations with a
term or period which must be judicially fixed. Thus, “B” instead
of bringing an action for specific performance, should bring an
action asking the court to determine the period within which
“A’’ Corporation shall put up the artesian well with tank. Once
the court has fixed the period, then such period as fixed by the
court will become a part of the covenant between the contracting
parties. It can no longer be changed by them. If the Corporation
does not put up the artesian well with tank within the period
fixed by the court, “B” can then bring an action for specific
performance.
Alternative Answer — Normally, before an action for
specific performance may be maintained by “B” against “A’’
Corporation, the former must first bring an action against the
latter asking the court to fix the duration of the term or period to
install the artesian well with tank. However, an action combining
such action with that of an action for specific performance may
be allowed if it can be shown that a separate action for specific
performance would be a mere formality because no additional
proofs other than the admitted facts will be presented and would
serve no purpose other than to delay. Here, there is no obstacle
to such cause of action.
(Note: The above answers are based on Art. 1197 of the
Civil Code and on decided cases. Either answer should be
considered correct.)

Art. 1198. The debtor shall lose every right to make use
of the period:
(1) When after the obligation has been contracted, he
becomes insolvent, unless he give a guaranty or security for
the debt;

163
Art. 1198 OBLIGATIONS

(2) When he does not furnish to the creditor the guar-


anties or securities which he has promised;
(3) When by his own acts he has impaired said guar-
anties or securities after their establishment, and when
through a fortuitous event they disappear, unless he imme-
diately gives new ones equally satisfactory;
(4) When the debtor violates any undertaking, in
consideration of which the creditor agreed to the period;
(5) When the debtor attempts to abscond.143

Extinguishment of Debtor’s Right to Period. — According


to the above article, there are five different grounds or causes for
the extinguishment of the debtor’s right to make use of the term or
period.
With respect to the first, the word “insolvent” must not be
understood in its technical sense so as to require a judicial declaration
in accordance with the Insolvency Law; it must be understood in
its ordinary or popular sense. Consequently, it includes any case in
which it would not be possible financially for the debtor to comply
with his obligation. This situation is, of course, predicated upon
the proposition that the insolvency of the debtor arose after the
constitution of the obligation.144 However, if there is a guaranty or
security for the debt, the debtor, in spite of his insolvency, does not
lose his right to the period.
With respect to the second, when the debtor does not furnish
the stipulated guaranty or security, it is but logical that he shall
lose his right to the term or period. Thus, where the debtor not only
failed to register the mortgage over a parcel of land in favor of the
creditor in order to secure the loan, but even mortgaged the same
parcel of land in favor of the Rehabilitation Finance Corporation in
order to secure another loan, it was held that the former obligation
became pure and without any condition, and consequently, the loan
became due and immediately demandable.145

143
Art. 1129, Spanish Civil Code, in modified form.
144
8 Manresa, 5th Ed., Bk. 1, p. 388.
145
Daguhoy Enterprises, Inc. vs. Ponce, 50 Off. Gaz. 5267. To the same effect
Laplana vs. Garchitorena, 48 Phil. 163.

164
DIFFERENT KINDS OF OBLIGATIONS Art. 1198
Obligations with a Period

With respect to the third, attention must be called to the


difference between the effect of impairment and the effect of
disappearance as applied to the guaranty or security. The rules may
be restated as follows: (1) If the guaranty or security is impaired
through the fault of the debtor, he shall lose his right to the benefit
of the period; however, if it is impaired without his fault, he shall
retain his right. (2) If the guaranty or security disappears through
any cause, even without any fault of the debtor, he shall lose his
right to the benefit of the period. In either case, however, the debtor
shall not lose his right to the benefit of the period if he gives a new
guaranty or security which is equally satisfactory.

Problem — A executed in favor of B a promissory note for


P10,000, payable after two years, secured by a mortgage on a
certain building valued at P20,000. One year after the execution
of the note, the mortgaged building was totally destroyed by a
fire of accidental origin. Can B demand from A the payment of
the value of the note immediately after the burning without
waiting for the expiration of the term? Reasons. (1932 Bar
Problem)
Answer — Yes, B can demand from A the payment of
the value of the note immediately after the burning without
waiting for the expiration of the term, unless A immediately
gives another security or guaranty which is equally satisfactory.
This is clear from the provision of No. 3 of Art. 1198 of the Civil
Code which declares that when by his own acts the debtor has
impaired the guaranty or security, or when through a fortuitous
event the guaranty or security disappears, the debtor shall lose
the benefit of the term or period. It must be observed that there
is a difference between the effect of impairment and the effect of
disappearance as applied to the security or guaranty. The rules
may be restated as follows: (1) If the guaranty or security is
impaired through the fault of the debtor, he shall lose his right
to the benefit of the period; however, if it is impaired without
his fault, he shall retain his right. (2) If the guaranty or security
disappears through any cause, even without any fault of the
debtor, he shall lose his right to the benefit of the period. In
either case, however, the debtor shall not lose his right to the
benefit of the period if he gives a new guaranty or security.

The fourth and fifth cases are new provisions. Whether the
debtor violates any undertaking, in consideration of which the credi-
tor agreed to the period, or he attempts to abscond, the rule that he
shall lose his right to the benefits of the period is proper.

165
Art. 1198 OBLIGATIONS

Song Fo vs. Oria


33 Phil. 3

This is an action commenced by plaintiff to recover the


purchase price of a launch which was sold to the defendant for
P16,000 payable in quarterly installments of P1,000 and for
which the said launch was mortgaged as security. The records
show that the launch was delivered to the defendant in Manila
but it was wrecked while enroute to his place of business in
Samar. The records also show that no part of the purchase price
has yet been paid to the plaintiff. The lower court rendered
judgment for P6,000 on the ground that this amount represents
the unpaid installments which are due and demandable under
the contract. The plaintifs, however, contend that the judgment
should include the whole amount.
Held: “Coming now to examine the contentions of the
plaintiffs on their appeal, we think that the trial judge erred in
declining to render judgment in their favor for the total amount
of the purchase price of the launch. He appears to have relied
upon the provisions of Article 1126 (now Art. 1193) of the Civil
Code but to have overlooked the correlated provisions of Article
1129 (now Art. 1198) of the same code.
“The security for the payment of the purchase price of the
launch itself having disappeared as a result of the unforeseen
event (vis major) and no other security having been substituted,
therefore, the plaintiffs were clearly entitled to recover judgment
not only for the installments of the indebtedness due under the
terms of the contract at the time when they instituted their
action, but also for all installments which but for the loss of the
vessel, had not matured at the time.’’
Problem — A sold his entire interest in 24,000 tons of
iron ore to B for P75,000, P10,000 of which was actually paid
upon the signing of the contract. With respect to the balance of
P65,000, it was agreed that it “will be paid from the first amount
derived from the sale of the ore.’’ To insure payment thereof, B
delivered to A a surety bond which provided that the liability of
the surety liability would automatically expire after the lapse of
two years. Inasmuch as the ore had not yet been sold and the
surety bond had expired without being renewed and the balance
had not yet been paid in spite of repeated demands, A finally
brought an action against B for the recovery of said balance.
B, however, interposed the defense that his obligation to pay
is conditional and that inasmuch as the condition has not yet
been fulfilled, therefore, it is not yet due and demandable. Is
this defense tenable?

166
DIFFERENT KINDS OF OBLIGATIONS Art. 1198
Alternative and Facultative Obligations

Answer — This defense is untenable. The sale of the iron


ore is not a condition precedent to the payment of the balance
but only a suspensive term or period. There is no uncertainty
whatsoever with regard to the fact of payment; what is
undetermined is merely the exact date of payment. Normally,
therefore, A will have to wait for the actual sale of the iron ore
before he can demand from B for the payment of the unpaid
balance. However, inasmuch as by his own act B has impaired
the guaranty or security after its establishment without giving
another one which is equally satisfactory, it is clear that he has
now lost the benefit of the term or period. Consequently, the
case now falls squarely within the purview of pars. 2 and 3 of
Art. 1198 of the NCC. (Gaite vs. Fonacier, 112 Phil. 728.)

Section 3. — Alternative and Facultative


Obligations

Concept. — When an obligation comprehends several objects


or prestations it may be either conjunctive or distributive. It is
conjunctive when all of the objects or prestations are demandable
at the same time; it is distributive when only one is demandable.
The latter, in turn, may be either alternative or facultative. It is
alternative when it comprehends several objects or prestations which
are due, but it may be complied with by the delivery or performance
of only one of them; it is facultative when it comprehends only one
object or prestation which is due, but it may be complied with by the
delivery of another object or the performance of another prestation
in substitution.146
It is, therefore, clear that the characteristic feature of an
alternative obligation is that various objects being due, the payment
or performance of one of them, determined by the election which,
as a general rule, pertains to the obligor or debtor, is sufficient.147
The characteristic feature of a facultative obligation, on the other
hand, is that only one object or prestation is due, but the obligor or
debtor may deliver another object or perform another prestation in
substitution.148

146
8 Manresa, 5th Ed., Bk. 1, p. 393; 3 Castan, 7th Ed., pp. 75-76.
147
Ibid.
148
Art. 1206, Civil Code.

167
Arts. 1199-1200 OBLIGATIONS

Art. 1199. A person alternatively bound by different


prestations shall completely perform one of them.
The creditor cannot be compelled to receive part of one
and part of the other undertaking.149
Art. 1200. The right of choice belongs to the debtor, un-
less it has been expressly granted to the creditor.
The debtor shall have no right to choose those presta-
tions which are impossible, unlawful or which could not
have been the object of the obligation.150

Right of Choice in Alternative Obligations. — In alterna-


tive obligations, the general rule is that the right of choice belongs or
pertains to the debtor.151 Thus, where the debtor borrowed a certain
amount from the creditor, and in the promissory note which he had
executed it is expressly stipulated that he can fulfill his obligation
either by the payment of the amount of the indebtedness or by the
delivery of a house and lot at an appraised valuation, it was held
that such obligations are alternative in character.152 Consequently,
upon the maturity of the note, the debtor can comply with the obli-
gation by paying the agreed amount or by delivering the house and
lot. Under the general rule stated in Art. 1200, he alone has the
right to make the choice. Once he has made it, and such choice is
duly communicated to the creditor, the obligation becomes simple.
There are, however, two exceptions to the general rule. They
are: first, when the right of choice has been expressly granted to
the creditor;153 and second, when it has been expressly granted to
a third person. Although the Code does not expressly recognize the
second,there is no reason why it should not be allowed, since it is not
contrary to law, morals, good customs, public order or public policy.
Idem; Limitations upon right of choice. — The limitations
to the right of choice are given in the second paragraph of Art. 1200.
According to this provision, the debtor cannot choose those prestations
or undertakings which are impossible, unlawful or which could not

149
Art. 1131, Spanish Civil Code.
150
Art. 1132, Spanish Civil Code.
151
Art. 1200, Civil Code.
152
Agoncillo and Marino vs. Javier, 38 Phil. 244.
153
Art. 1200, par. 1, Civil Code.

168
DIFFERENT KINDS OF OBLIGATIONS Art. 1201
Alternative and Facultative Obligations

have been the object of the obligation. “Prestations which could not
have been the object of the obligation” refer to those undertakings
which are not included among those from which the obligor may
select, or to those which are not yet due and demandable at the
time the selection is made, or to those which, by reason of accident
or some other cause, have acquired a new character distinct or
different from that contemplated by the parties when the obligation
was constituted.154 It must be noted that what is contemplated by
the provision of the second paragraph of Art. 1200 is a case in which
the right to choose or select is not lost or extinguished altogether,
because there are still other objects or prestations from which the
debtor can choose or select.

Art. 1201. The choice shall produce no effect except from


the time it has been communicated.155

When Choice Takes Effect. — The rule stated in the above


article is applicable whether the right of choice is exercised by the
debtor, or by the creditor, or by a third person. No special form is
required for the communication or notification. Hence, any form may
be employed provided that the other party is properly notified of the
selection. Nevertheless, considering the fact that the choice shall
produce no effect except from the time the other party is notified
of the selection and the fact that the proof of such notification is
incumbent upon him who made the selection, it is always much
better to make the notification either in a notarized document or in
any other authentic writing.156
Can the creditor to whom the selection had been duly
communicated impugn such selection? In other words, before the
choice or selection shall be binding upon the creditor, is it necessary
that he must give his consent thereto? In a certain case, decided by
the Supreme Court, where the alternative obligations of the obligor
consisted of paying the insured value of the house or rebuilding
it, and such obligor notified the obligee that it shall rebuild the
house, the court declared that the “object of the notice is to give
the creditor or obligee opportunity to express his consent, or to

154
8 Manresa, 5th Ed., Bk. 1, p. 398.
155
Art. 1133, Spanish Civil Code.
156
8 Manresa, 5th Ed., Bk. 1, p. 399.

169
Art. 1202 OBLIGATIONS

impugn the election made by the debtor and only after said notice
shall the election take legal effect when consented to by the creditor,
or if impugned by the latter, when declared proper by a competent
court.’’157 It is, however, submitted that this doctrine is not sound.
Consent or concurrence of the creditor to the choice or selection
made by the debtor is not necessary before the choice or selection
can produce effect. To hold otherwise would destroy the very nature
of the right to select and the alternative character of the obligation
for that matter. Thus, according to Dean Capistrano: “The law does
not require the creditor’s concurrence to the choice; if it did, it would
have destroyed the very nature of alternative obligations, which
empowers the debtor to perform completely one of them.’’158
Idem; Effect upon obligation. — Once the choice is made
by the debtor (or by the creditor or by a third person as the case
may be), the obligation ceases to be alternative from the moment
the selection has been communicated to the other party. From
that moment, both debtor and creditor are bound by the selection.
In other words, the debtor can only comply with his obligation
by performing the prestation which has been selected, while the
creditor can only demand compliance in accordance there with. “An
election once made is binding on the person who makes it, and he
will not therefore be permitted to renounce his choice and take an
alternative which was at first opened to him.”159

Art. 1202. The debtor shall lose the right of choice when
among the prestations whereby he is alternatively bound,
only one is practicable.160
When Only One Prestation Is Practicable. — According
to the above article, when among several prestations whereby the
debtor is alternatively bound, only one prestation can be performed
because all of the others are impracticable, the debtor loses his right of
choice altogether. In other words, the obligation loses its alternative
character; it becomes a simple obligation. The provision of the above
article, however, must be distinguished from the provision of the

157
Ong Guan Can vs. Century Insurance Co., 46 Phil. 592.
158
3 Capistrano, Civil Code, 1950 Ed., p. 131. To the same effect — 4 Tolentino
Civil Code, 1956 Ed., p. 196.
159
Reyes vs. Martinez, 55 Phil. 492.
160
Art. 1134, Spanish Civil Code.

170
DIFFERENT KINDS OF OBLIGATIONS Arts. 1203-1205
Alternative and Facultative Obligations

second paragraph of Art. 1200. Under the first, there is only one
prestation which can be performed; under the second, there are still
two or more which can be performed. Under the first, the obligation
is converted into a simple one because the debtor loses his right of
election; under the second, the obligation is still alternative because
the debtor can still exercise his right of election.

Art. 1203. If through the creditor’s acts the debtor cannot


make a choice according to the terms of the obligation, the
latter may rescind the contract with damages.161

When Choice Is Rendered Impossible. — The above article


does not have any counterpart in the Spanish Civil Code. The rule,
however, is logical. Since the debtor’s right of choice is rendered
ineffective through the creditor’s fault, his only possible recourse
will be to bring an action to rescind the contract with damages.

Art. 1204. The creditor shall have a right to indemnity


for damages when, through the fault of the debtor, all the
things which are alternatively the object of the obligation
have been lost, or the compliance of the obligation has
become impossible.
The indemnity shall be fixed taking as a basis the value
of the last thing which disappeared, or that of the service
which last became impossible.
Damages other than the value of the last thing or service
may also be awarded.162
Art. 1205. When the choice has been expressly given to
the creditor, the obligation shall cease to be alternative from
the day when the selection has been communicated to the
debtor.
Until then the responsibility of the debtor shall be
governed by the following rules:
(1) If one of the things is lost through a fortuitous event,
he shall perform the obligation by delivering that which the

161
New provision.
162
Art. 1135, Spanish Civil Code, in modified form.

171
Arts. 1203-1205 OBLIGATIONS

creditor should choose from among the remainder, or that


which remains if one only subsists;
(2) If the loss of one of the things occurs through the
fault of the debtor, the creditor may claim any of those
subsisting, or the price of that which, through the fault of
the former, has disappeared, with a right to damages;
(3) If all the things are lost through the fault of the
debtor, the choice by the creditor shall fall upon the price of
any one of them, also with indemnity for damages.
The same rules shall be applied to obligations to do or
not to do in case one, some or all of the prestations should
become impossible.163

Effect of Loss of Objects of Obligation. — It is evident


that Art. 1204 is applicable only to a case where the right of choice
belongs to the debtor, while Art. 1205 is applicable only to a case
where the right belongs to the creditor. In other words, the first
article is the general rule, while the second is the exception.
What is the effect upon the obligation if one or some or all of
the things or prestations which are alternatively the object of the
obligation have been lost or cannot be complied with? The answer
to this question must depend upon two factors or circumstances
— first, whether the right of choice belongs to the debtor or to the
creditor, and second, whether the loss or impossibility was due to a
fortuitous event or to the fault of the debtor.
Idem; If right of choice belongs to the debtor. — If the
right of choice belongs to the debtor and the loss or impossibility is
due to a fortuitous event, then the provisions of Arts. 1174, 1262 and
1266 of the Code are applicable. The debtor cannot be held liable
for damages. Consequently, if one of the things is lost or one of the
prestations cannot be performed by reason of a fortuitous event,
the debtor must still comply with the obligation by delivering or
performing that which he shall choose from among the remainder; if
all of the things, except one, are lost, or all of the prestations, except
one, cannot be performed by reason of a fortuitous event, the debtor
must still comply with his obligation by delivering or performing

163
Art. 1136, Spanish Civil Code, in modified form.

172
DIFFERENT KINDS OF OBLIGATIONS Art. 1206
Alternative and Facultative Obligations

that which remains; and if all of the things are lost or all of the
prestations cannot be performed by reason of a fortuitous event, the
debtor is released from the obligation.
But if the loss or impossibility is due to the fault of the debtor,
then the provisions of Art. 1204 are applicable. Consequently, if all
of the things are lost or all of the prestations cannot be performed
due to the fault of the debtor, the creditor shall have a right to
indemnity for damages. Such indemnity shall be fixed taking as a
basis the value of the last thing to be lost or that of the service which
last became impossible. However, if one, or more, but not all, of the
things are lost or one or some, but not all, of the prestations cannot
be performed due to the fault of the debtor, the creditor cannot hold
the debtor liable for damages. This is so because the debtor can still
comply with his obligation.
Idem; If right of choice belongs to creditor. — If the right
of choice belongs to the creditor and the loss or impossibility is due to
a fortuitous event, then the provisions of Arts. 1174, 1262 and 1266,
which are reiterated in No. 1 of the second paragraph of Art. 1205,
are applicable. The debtor cannot be held liable. Consequently, what
had been stated in the preceding section can also be applied here.
But if the loss or impossibility is due to the fault of the debtor,
then the provisions of Nos. 2 and 3 of the second paragraph of Art.
1205 are applicable. Consequently, if all of the things are lost or all
of the prestations cannot be performed due to the fault of the debtor,
the creditor may claim the price or value of any one of them with
indemnity for damages. However, if one or some, but not all, of the
things are lost, or one or some, but not all, of the prestations cannot
be performed due to the fault of the debtor, the creditor may claim
any of those subsisting without any liability on the part of the debtor
for damages or the price or value of that, which through the fault of
the former, was lost or could not be performed, with indemnity, for
damages.

Art. 1206. When only one prestation has been agreed


upon, but the obligor may render another in substitution,
the obligation is called facultative.
The loss or deterioration of the thing intended as a
substitute, through the negligence of the obligor, does not

173
Art. 1206 OBLIGATIONS

render him liable. But once the substitution has been made,
the obligor is liable for the loss of the substitute on account
of his delay, negligence or fraud.164
Nature of Facultative Obligations. — According to the
above article, a facultative obligation is defined as an obligation
wherein only one object or prestation has been agreed upon by the
parties to the obligation, but which may be complied with by the
delivery of another object or the performance of another prestation
in substitution. It is evident that the characteristic feature of this
type of obligation is that only one object or prestation is due, but if
the obligor fails to deliver such object or to perform such prestation,
he can still comply with his obligation by delivering another object
or performing another prestation in substitution. Thus, where the
debtor executed a promissory note promising to pay his indebtedness
to the creditor at a specified date and in case of failure to do so, he
shall execute a deed of mortgage over a certain property belonging
to him in favor of the creditor, it was held that the obligation is
facultative.165 Consequently, the provisions of Art. 1206 of the Civil
Code may be applied.
Idem; Distinguished from alternative obligations. —
Facultative obligations may be distinguished from alternative obli-
gations in the following ways:
(1) As to objects due: In facultative obligations only one object
is due, while in alternative obligations several objects are due.
(2) As to compliance: Facultative obligations may be complied
with by the delivery of another object or by the performance of
another prestation in substitution of that which is due, while
alternative obligations may be complied with by the delivery of one
of the objects or by the performance of one of the prestations which
are alternatively due.
(3) As to choice: In the first, the right of choice pertains only
to the debtor, while in the second, the right of choice may pertain
even to the creditor or to a third person.
(4) As to the effect of fortuitous loss: In the first, the loss or
impossibility of the object or prestation which is due without any

164
New provision.
165
Quizana vs. Redugerio, 50 Off. Gaz. 2444.

174
DIFFERENT KINDS OF OBLIGATIONS Art. 1206
Alternative and Facultative Obligations

fault of the debtor is sufficient to extinguish the obligation, while in


the second, the loss or impossibility of all of the objects or prestations
which are due without any fault of the debtor is necessary to
extinguish the obligation.
(5) As to effect of culpable loss: In the first, the culpable loss
of the object which the debtor may deliver in substitution before the
substitution is effected does not give rise to any liability on the part
of such debtor; in the second, the culpable loss of any of the objects
which are alternatively due before the choice is made may give rise
to a liability on the part of the debtor.
Idem; When substitution takes effect. — Although Art. 1206
is silent with respect to the time or moment when the substitution
will take effect, it is clear that the provision of Art. 1201 can be
applied by analogy. Of course, there is no question that the only
one who is empowered to make the substitution is the debtor. In
order that the creditor will be bound by the substitution, however,
it is necessary that he must communicate such fact to the said
creditor. Once the latter has been notified of the substitution, then
the obligation ceases to be facultative; it is finally converted into a
simple obligation to deliver the thing or to perform the prestation
which has been substituted.
Idem; Effect of loss of substitute. — Before the substitution
is made by the obligor, the loss or deterioration of the thing intended
as a substitute, through the negligence of the said obligor, does
not render him liable.166 Hence, there seems to be an implication
that if the loss or deterioration is through the bad faith or fraud of
the obligor, then he is liable. As a matter of fact, Dean Capistrano
says: “Whether the debtor is liable in case he acts with bad faith,
the Code Commission thought it better to leave to the courts
to decide. However, it may be pointed out that, as a matter of
principle, there should always be liability for bad faith.”167 It must,
however, be observed that if the debtor can be held liable for the
loss or deterioration of the thing intended as a substitute, will this
not destroy the facultative nature of this type of obligation? It is,
therefore, submitted that whatever may be the cause of the loss
or deterioration of the thing intended as a substitute, such loss or
deterioration shall not render the debtor liable.

166
Art. 1206, par. 2, Civil Code.
167
3 Capistrano, Civil Code, 1950, Ed., p. 135.

175
Art. 1206 OBLIGATIONS

Once the substitution has been made, however, the debtor shall
be liable for the loss or deterioration of the substitute on account of
his delay, negligence or fraud.168 This rule is logical because once
the substitution is made, the obligation is converted into a simple
one with the substituted thing or prestation as the object of the
obligation.

Section 4. — Joint and Solidary Obligations

Concept. — When there is a concurrence of two or more


creditors or of two or more debtors in one and the same obligation,
the obligation may be either joint (obligación mancomunada) or
solidary (obligación solidaria). A joint obligation may be defined as
an obligation where there is a concurrence of several creditors, or
of several debtors, or of several creditors and debtors, by virtue of
which each of the creditors has a right to demand, and each of the
debtors is bound to render, compliance with his proportionate part of
the prestation which constitutes the object of the obligation. In other
words, each of the creditors is entitled to demand the payment of only
a proportionate part of the credit, while each of the debtors is liable
for the payment of only a proportionate part of the debt. A solidary
obligation, on the other hand, may be defined as an obligation where
there is a concurrence of several creditors, or of several debtors, or
of several creditors and several debtors, by virtue of which each of
the creditors has a right to demand, and each of the debtors is bound
to render, entire compliance with the prestation which constitutes
the object of the obligation. In other words, each of the creditors is
entitled to demand the payment of the entire credit, while each of
the debtors is liable for the payment of the entire debt.169
Idem; Comparative jurisprudence. — In the case of
Jaucian vs. Querol,170 the Supreme Court had occasion to discuss the
comparative jurisprudence on the subject. According to the Court:

“In Spanish law the comprehensive and generic term


by which to indicate multiplicity of obligations arising from
plurality of debtors or creditors, is mancomunidad, which term
includes (1) mancomunidad simple or mancomunidad properly

168
Art. 1206, par. 2, Civil Code.
169
Art. 1207, Civil Code; 3 Castan, 7th Ed., pp. 65-66.
170
38 Phil. 707.

176
DIFFERENT KINDS OF OBLIGATIONS Art. 1206
Joint and Solidary Obligations

such and (2) mancomunidad solidaria. In other words, the


Spanish system recognizes two species of multiple obligation,
namely, the apportionable joint obligation and the solidary joint
obligation. The solidary obligation is, therefore, merely a form of
joint obligation.
“The idea of the benefit of division as a feature of simple
joint obligation appears to be a peculiar creation of Spanish
jurisprudence. No such idea prevailed in the Roman law, and it
is not recognized either in the French or in the Italian system.
“The conception is a badge of honor to Spanish legislation,
honorably shared with the Spanish-American, since French and
Italian codes do not recognize the distinction or difference just
expounded between the two sorts of multiple obligation. (Giorgi,
Theory of Obligation, Span. Ed., Vol. 1, p. 77).
“Considered with reference to comparative jurisprudence,
liability in solidum appears to be the normal characteristic
of the multiple obligation, while the benefit of division in the
Spanish system is an illustration of the abnormal, evidently
resulting from the operation of a positive rule created by the
lawgiver. This exceptional feature of the simple joint obligation
in Spanish law dates from an early period; and the rule in
question is expressed with simplicity and precision in a passage
transcribed into the Novisima Recopilación follows:
“If two persons bind themselves by contract, simply and
not otherwise, to do or accomplish something, it is thereby to be
understood that each is bound for one-half, unless it is specified
in the contract that each is bound in solidum, or it is agreed
among themselves that they shall be bound in some other
manner, and this notwithstanding any customary law to the
contrary. x x x’ (Law X, Title I, Book X, Novisima Recopilación,
copied from law promulgated at Madrid in 1488 by Henry IV).
“The foregoing exposition of the conflict between the
juridical conception of liability incident to the multiple
obligation, as embodied respectively in the common law system
and the Spanish Civil Code, prepares us for a few words of
comment upon the problem of translating the terms which
we have been considering from English into Spanish or from
Spanish to English.
“The Spanish expression to be chosen as the equivalent
of the English word “joint” or “jointly’’ must, of course, depend
upon the idea to be conveyed; and it must be remembered
that the matter to be translated may be an enunciation either

177
Art. 1207 OBLIGATIONS

of a common law conception or of a civil law idea. In Sharruf


vs. Tayabas Land Co. and Ginainati (37 Phil. Rep. 655), a
judge of one of the Courts of First Instance in these Islands
rendered judgment in English declaring the defendants to be
‘jointly’ liable. It was held that he meant ‘jointly’ in the sense
of ‘mancomunadamente’ because the obligation upon which the
judgment was based was apportionable under Article 1138 (now
Art. 1208) of the Civil Code. This mode of translation does not,
however, hold where the word to be translated has reference to
a multiple common law obligation, as in Article 698 of the Code
of Civil Procedure. Here it is necessary to render the word ‘joint’
by the Spanish word ‘solidaria.’
“In translating the Spanish word ‘mancomunada’ into
English a similar difficulty is presented. In the Philippine
Islands at least we must probably continue to tolerate the
use of the English word ‘joint’ as an approximate equivalent,
ambiguous as it may be to a reader indoctrinated with the ideas
of the common law. The Latin phrase pro rata is a makeshift
the use of which is not to be commended. The Spanish word
‘solidaria’ is properly rendered in English by the word ‘solidary,’
though it is not inaccurate here to use the compound expression
‘joint and several.’ The use of the Latin phrase ‘in solidum’ is also
permissible. We close these observations with the suggestion
that a person writing in English may at times find it conducive
to precision to use the expanded expression ‘apportionable joint
obligation’ and ‘solidary joint obligation’ as conveying the full
juridical sense of ‘obligación mancomunada’ and ‘obligacion
solidaria,’ respectively.’’

Art. 1207. The concurrence of two or more creditors or


of two or more debtors in one and the same obligation does
not imply that each one of the former has a right to demand,
or that each one of the latter is bound to render, entire
compliance with the prestation. There is a solidary liability
only when the obligation expressly so states, or when the
law or the nature of the obligation requires solidarity.171
Nature of Collective Obligations in General. — According
to the above article, when there is a concurrence of several creditors
or of several debtors or of several creditors and debtors in one and the
same obligation, there is a presumption that the obligation is joint

171
Art. 1137, Spanish Civil Code, in modified form.

178
DIFFERENT KINDS OF OBLIGATIONS Art. 1207
Joint and Solidary Obligations

and not solidary. Consequently, where the obligation is silent with


respect to the nature or character of the right of the creditors or of
the liability of the debtors, each of the creditors is entitled to demand
only for the payment of his proportionate share of the credit, while
each of the debtors can be compelled to pay only his proportionate
share of the debt.172 Thus, if A, B and C had executed a promissory
note binding themselves to pay an indebtedness of P9,000 to X, Y, and
Z, since the note is silent with respect to the character of the right
of the creditors as well as the liability of the debtors, the obligation
is, therefore, presumed to be joint.173 Upon maturity of the note the
only right of each creditor would be to demand for the payment of
his proportionate share of the credit, which in this particular case
is presumed to be P3,000.174 Each debtor, on the other hand, can
be compelled to pay only for his proportionate share of the debt.
Therefore, if X, for instance, will proceed against A for payment, the
only amount which he can collect from the latter would be P1,000.
Consequently, if he wants to collect his entire proportionate share
of P3,000, he must proceed not only against A, but also against B
and C.
Idem; Exceptions. — There are, however, three exceptional
cases or instances where collective obligations are solidary and not
joint. They are: first, when the obligation expressly states that there
is solidarity; second, when the law requires solidarity; and third,
when the nature of the obligation requires solidarity.175 In all of
these cases, each creditor is entitled to demand for the payment
of the entire credit, while each debtor can be compelled to pay for
the entire debt. Thus, if A, B, and C are solidarily bound to pay an
indebtedness of P9,000 to X, Y, and Z, anyone of the creditors can
proceed against one, or some, or all of the debtors for the payment
of the entire credit.176
Before the first exception can be applied, the solidary character
of the obligation must be made in express terms.177 It is not, how-

172
Pimentel vs. Gutierrez, 14 Phil. 49; White vs. Enriquez, 15 Phil. 113; Agoncillo
vs. Javier, 38 Phil. 424; Ramos vs. Gibbon, 67 Phil. 371; Inciong, Jr. vs. Court of Ap-
peals, June 26, 1996, 257 SCRA 580.
173
Art. 1297, Civil Code.
174
Art. 1208, Civil Code.
175
Art. 1207, Civil Code.
176
Art. 1216, Civil Code.
177
Gonzales vs. La Previsora Filipina, 74 Phil. 165.

179
Art. 1207 OBLIGATIONS

ever, necessary that the agreement shall employ precisely the word
“solidary” in order that the obligation will be so; it is enough that
the agreement will say, for example, that each one of them can be
obligated for the aggregate value of the obligation.178 Thus, where
the debtors agreed to pay the obligation “jointly and severally,”179
or “individually and collectively”180 everyone of them can be held re-
sponsible for the payment of the entire obligation. Another example
is where the promissory note expressly states that the three signato-
ries therein are “jointly and severally liable.’’ Any one, some or all of
them may be proceeded against for the entire obligation. The choice
is left to the solidary creditor to determine against whom he will
enforce collection. (Inciong, Jr. vs. Court of Appeals, June 26, 1996,
257 SCRA 580.)
Examples of the second exception are those provided for in
Arts. 927, 1824, 1911, 1915, 2146, 2157, and 2194 of the Civil Code.
Another example would be that provided for in Art. 110 of the Revised
Penal Code regarding the liability of principals, accomplices, and
accessories of a felony.
Examples of the third exception are obligations arising from
criminal offenses and torts. The responsibility of two or more
persons guilty of a criminal offense or liable for a tort is solidary.
This is so because of the very nature of the obligation itself. It must
be noted, however, that under Art. 110 of the Revised Penal Code, it
is expressly stated that the responsibility of principals, accomplices,
and accessories, each within their respective class, is solidary, and
under Art. 2194 of the Civil Code, it is also expressly stated that
the responsibility of two or more persons liable for a quasi-delict is
solidary. Apparently, the obligations comprehended by the exception
on which we are commenting are also included within the scope of
the second exception. There are, however, some torts which cannot
be classified as quasi-delicts because the element of negligence
does not enter as an essential requisite, such as interferences with
human relations, nuisances, infringements of copyrights, patent or
trademark, unfair competition and several others. Responsibility of
joint tortfeasors in such cases is solidary because the nature of the

178
Ysmael & Co. vs. Salinas and Delgado, 73 Phil. 601.
179
Parot vs. Gemora, 7 Phil. 24.
180
Oriental Commercial Co. vs. La Fuente, CA, 38 Off. Gaz. 947.

180
DIFFERENT KINDS OF OBLIGATIONS Art. 1208
Joint and Solidary Obligations

obligation requires it. Thus, in a certain case, the Supreme Court


declared:

“It may be stated as a general rule that joint tortfeasors


are all the persons who command, instigate, promote, encourage,
advise, countenance, cooperate in, aid or abet the commission of
a tort, or who approve of it after it is done for their benefit. They
are each liable as principals to the same extent and in the same
manner as if they had performed the wrongful act themselves.
Joint tortfeasors are jointly and severally liable for the tort
which they commit. The person injured may sue all of them or
any number less than all. Each is liable for the whole damage. It
is no defense for one sued alone, that the others who participated
in the wrongful act are not joined with him as defendants; nor
is it any excuse for him that his participation in the tort was
insignificant as compared with that of the others.’’181

Art. 1208. If from the law, or the nature of the wording


of the obligations to which the preceding article refers the
contrary does not appear, the credit or debt shall be presumed
to be divided into as many equal shares as there are creditors
or debtors, the credits or debts being considered distinct
from one another, subject to the Rules of Court governing
the multiplicity of suits.182

Joint Divisible Obligations. — The most fundamental effect


of joint divisible obligations is that each creditor can demand only
for the payment of his proportionate share of the credit, while each
debtor can be held liable only for the payment of his proportionate
share of the debt.183 As a corollary to this rule, the credit or debt
shall be presumed, in the absence of any law or stipulation to the
contrary, to be divided into as many shares as there are creditors
and debtors, the credits or debts being considered distinct from
one another, subject to the Rules of Court governing multiplicity of
suits.184 From these rules which are expressly declared by the Code, it
necessarily follows that a joint creditor cannot act in representation

181
Worcester vs. Ocampo, 22 Phil. 42. To the same effect: Verzosa vs. Lim, 45
Phil. 416; Torebillas vs. Soques, CA, 46 Off. Gaz. 5618; Padilla vs. Hipomia, CA, G.R.
No. 4272-R, Feb. 17, 1951.
182
Art. 1138, Spanish Civil Code, in modified form.
183
Art. 1207, Civil Code.
184
Art. 1208, Civil Code.

181
Art. 1208 OBLIGATIONS

of the others; neither can a joint debtor be compelled to answer for


the liability of the others. Consequently, if there is a breach of the
obligation by reason of the act of one of the debtors, the damages
due to its breach must be borne by him alone.185 Similarly, if there
is any defense which is purely personal to one of the debtors, he
alone can avail himself of such defense.186 Thus, it has been held
that payment or acknowledgment by one of the joint debtors will
not stop the running of the period of prescription as to the others.187
This doctrine is in conformity with the opinion of Manresa to the
effect that one of the necessary consequences of the rule stated in
what is now Art. 1208 of the Civil Code is that “the interruption of
prescription by the claim of a creditor addressed to a single debtor
or by an acknowledgment made by one of the debtors in favor of one
or more of the creditors is not to be understood as prejudicial to or in
favor of the other debtors or creditors.’’188

Problem No. 1. — A, B, and C executed a promissory note


binding themselves to pay P9,000 to X, Y, and Z. The note is now
due and demandable.
(a) Can the creditors proceed against A alone for
payment of the entire obligation? Why?
(b) Can X alone proceed against A, B and C for payment
of the entire obligation? Why?
(c) Suppose that X proceeds against A alone for
payment, how much can he collect? Why?
(d) Suppose that C is insolvent, can A and B be held
liable for his share in the obligations? Why?
(e) Suppose that the obligation was about to prescribe,
but X wrote a letter to A demanding for payment of the entire
debt, will this have the effect of interrupting the running of the
period of prescription? Why?
Answer — (a) The creditors cannot proceed against A alone
for the payment of the entire obligation. Since the promissory
note is silent with respect to the right of the creditors as well as
the liability of the debtors, the obligation is, therefore, presumed

185
Moller’s Ltd. vs. Sarile, 97 Phil. 985.
186
8 Manresa, 5th Ed., Bk. 1, p. 425.
187
Agoncillo vs. Javier, 38 Phil. 424.
188
8 Manresa 182, cited in Agoncillo vs. Javier, 38 Phil. 424.

182
DIFFERENT KINDS OF OBLIGATIONS Art. 1208
Joint and Solidary Obligations

to be joint (Art. 1207, CC). Consequently, the only right of such


creditors if they proceed against A alone for payment would be
to collect from him P3,000, which is his proportionate share in
the obligation. (Ibid.) Once the amount is collected, it will then
be divided equally among X, Y and Z. This is so because, under
the law, in the absence of any legal provision or stipulation of
the parties to the contrary, the credit or debt shall be presumed
to be divided into as many equal shares as there are creditors
or debtors, the creditors or debts being considered distinct from
one another (Art. 1208, CC).
(b) X alone cannot proceed against A, B and C for the
payment of the entire obligation for the same reason stated in
the previous paragraph. The most that he will be able to collect
from the three debtors will be his proportionate share in the
obligation which is P3,000 (Arts. 1207, 1208, CC). As far as the
debtors are concerned, because of the principle that in joint
obligations the credit or debt shall be presumed to be divided
into as many equal shares as there are creditors or debtors, the
credits or debts being considered distinct from one another (Art.
1208, CC), the liability of each will be only with respect to his
share in the P9,000. Consequently, X can collect only P1,000
from A, P1,000 from B, and P1,000 from C.
(c) If X proceeds against A alone for payment, the most
that he will be able to collect will be only P1,000. The reason has
already been stated in the previous paragraph.
(d) If C is insolvent, his co-debtors cannot be held liable
for his share in the obligations. This necessarily follows from
the principle that in joint obligation, the credit or debt shall
be presumed to be divided into as many equal shares as there
are creditors or debtors, the credits or debts being considered
distinct from one another (Art. 1208, CC).
(e) The demand made by X upon A, for the purpose
of interrupting the running of the period of prescription, shall
prejudice the latter only, but not the other debtors. Consequently,
if after ten years, X, Y and Z should bring an action against A,
B and C to collect the debt, the defense of prescription would be
absolute insofar as B and C are concerned, but partial insofar as
A is concerned. In other words, A can still be compelled to pay
P1,000 to X. The reason for this is the fact that the principle of
mutual agency is not applicable in joint obligations. (Agoncillo
vs. Javier, 38 Phil. 424.)
Problem No. 2. — X, Y and Z owe A and B P12,000 in a
joint obligation. How many obligations exist in this case, who

183
Art. 1209 OBLIGATIONS

are the parties in each obligation and for how much? Why?
(1971 Bar Problem)
Answer — There are six obligations in the above case. The
parties and the amount of each obligation are:
(1) X as debtor for P2,000 in favor of A as creditor;
(2) X as debtor for P2,000 in favor of B as creditor;
(3) Y as debtor for P2,000 in favor of A as creditor;
(4) Y as debtor for P2,000 in favor of B as creditor;
(5) Z as debtor for P2,000 in favor of A as creditor;
(6) Z as debtor for P2,000 in favor of B as creditor.
The above answers are clearly deducible from Art. 1208
of the Civil Code which declares that if the obligation is joint,
the credit or debt shall be presumed to be divided into as many
equal shares as there are creditors or debtors, the credits or
debts being considered as distinct from one another, subject
to the Rules of Court governing the multiplicity of suits. Take
the credit of P12,000 for instance. Since there are two creditors
there will also be two credits of P6,000 for each creditor. In the
case of the debt of P12,000, since there are three debtors there
will also be three debts of P4,000 against each debtor. Now, as
far as A, the first creditor, is concerned, if he wants to collect his
credit of P6,000, he must proceed against all the debtors. Thus
he will be able to collect P2,000 from X, P2,000 from Y, another
P2,000 from Z. The same is true in the case of B, the second
creditor.

Art. 1209. If the division is impossible, the right of the


creditors may be prejudiced only by their collective acts, and
the debt can be enforced only by proceeding against all the
debtors. If one of the latter should be insolvent, the others
shall not be liable for his share.189
Joint Indivisible Obligations. — A joint indivisible
obligation is in a sense somewhat midway between the joint and
the solidary obligation, although it still retains the two fundamental
characteristics of the former — first, that no creditor can act in
representation of the others, and second, that no debtor can be

189
Art. 1139, Spanish Civil Code.

184
DIFFERENT KINDS OF OBLIGATIONS Art. 1209
Joint and Solidary Obligations

compelled to answer for the liability of the others. However, unlike


joint divisible and solidary obligations, in this type of obligation,
which is joint with respect to the parties and indivisible with respect
to the fulfillment of the obligation, the following characteristics are
also present:
(1) If there are two or more debtors, the fulfillment of or
compliance with the obligation requires the concurrence of all of the
debtors, although each for his own share.190 Consequently, according
to the Code, the obligation can be enforced only by proceeding against
all of the debtors.191 Thus, if A, B, and C obligated themselves to
deliver jointly a certain horse to X, since the obligation is both joint
and indivisible, X can compel its fulfillment only by proceeding
against A, B and C.
(2) If there are two or more creditors, the concurrence or
collective act of all the creditors, although each for his own share,
is also necessary for the enforcement of the obligation. This is so
because the obligation is joint, and therefore, a creditor cannot act in
representation of the others, and it is also indivisible, and therefore,
not susceptible of partial fulfillment. It must be noted, however,
that, unlike the case of the debtors, the Code is silent with respect
to this point, although Art. 1209 states that the creditors may be
prejudiced only by their collective acts.
Idem; Effect of breach. — Since in a joint indivisible obli-
gation, compliance can only be enforced by proceeding against all
of the debtors, it necessarily follows that if one of the joint debtors
fails to comply with his undertaking, the obligation can no longer
be fulfilled or performed. Consequently, it is converted into one of
indemnity for damages. However, the debtors who may have been
ready to fulfill or perform what was incumbent upon them shall not
contribute to the indemnity beyond the corresponding portion of the
price of the thing or of the value of the service in which the obliga-
tion consists.192
Idem; Effect of insolvency of a debtor. — If one of the joint
debtors should be insolvent, the others shall not be liable for his

190
Manresa, 5th Ed., Bk. 1, pp. 422, 466.
191
Art. 1209, Civil Code.
192
Art. 1224, Civil Code.

185
Art. 1209 OBLIGATIONS

share.193 This rule is, of course, logical because to hold otherwise


would destroy the joint character of the obligation.
The different effects of a joint indivisible obligation with
respect to the debtors may be illustrated by this example: A, B, and
C, partners in business, bind themselves jointly to deliver a certain
race horse, worth P300,000, to X at the end of January, 1980. X
can compel the performance of the obligation only by proceeding
against all of the obligors or debtors.194 However, if any one of the
debtors, let us say, A, cannot or refuses to comply with his share in
the undertaking, the obligation is converted into one of indemnity
for damages.195 A shall be liable to X for his corresponding share of
the price of the horse plus damages, while B and C shall be liable
only for their corresponding shares of the price without damages.196
If B is insolvent, the others shall not be liable for the payment of his
share.197 The right of X as against B will, therefore, be the same as
the right of a creditor against an insolvent debtor.
Idem; Interruption of period of prescription. — If there
are two or more creditors or debtors, will the claim of a creditor
addressed to a single debtor or the acknowledgment made by one of
the debtors in favor of one or more of the creditors be sufficient to
interrupt the period of prescription? According to one view, since Art.
1209 merely provides that the right of the creditors may be prejudiced
only by their collective acts, it can, therefore, be inferred that should
the act of a joint creditor be per se beneficial to the others, as for
instance the interruption of the period of prescription, the act of one
would be sufficient.198 According to another view, the act of a joint
creditor which would ordinarily interrupt the period of prescription
would not be valid because the indivisible character of the obligation
requires collective action of the creditors to be effective. If a written
demand is made by one creditor only, the debtor upon whom the
demand is made cannot pay to him alone; payment must be made to
all. Hence, the act of one alone is ineffective.199 It is submitted that
the latter view is more logical.

193
Art. 1209, Civil Code.
194
Ibid.
195
Art. 1224, Civil Code.
196
Ibid.
197
Art. 1209, Civil Code.
198
8 Manresa, 5th Ed., Bk. 1, pp. 446-467.
199
4 Tolentino, Civil Code, 1956, pp. 213-214, citing De Buen and others.

186
DIFFERENT KINDS OF OBLIGATIONS Arts. 1210-1211
Joint and Solidary Obligations

Art. 1210. The indivisibility of an obligation does not


necessarily give rise to solidarity. Nor does solidarity of
itself imply indivisibility.200

Indivisibility and Solidarity. — The rule stated in the above


article is logical. Indivisibility and solidarity are not identical. They
may be distinguished from each other in the following ways:
(1) As to nature: Indivisibility refers to the prestation which
constitutes the object of the obligation, while solidarity refers to the
legal tie or vinculum, and consequently, to the subjects or parties of
the obligation.
(2) As to requisites: Plurality of subjects is not required in
indivisibility, while it is indispensable in solidarity.
(3) As to effect of breach: In indivisible obligations, when the
obligation is converted into one of indemnity for damages because
of breach, indivisibility of the obligation is terminated; in solidary
obligations, when there is liability on the part of the debtors because
of breach, the solidarity among the debtors remains.201

Art. 1211. Solidarity may exist although the creditors


and the debtors may not be bound in the same manner and
by the same periods and conditions.202

Kinds of Solidarity. — Solidarity may be active (among


creditors), passive (among debtors), or mixed (among creditors and
debtors).203 Solidarity of creditors (active solidarity) may be defined
as a tie or vinculum existing among several creditors of one and
the same obligation by virtue of which each of them, in relation
to his co-creditors, possesses the character of creditor only with
respect to his share in the obligation, but in relation to the common
debtor or debtors, represents all of the other creditors. Solidarity
of debtors (passive solidarity), on the other hand, may be defined
as a tie or vinculum existing among several debtors of one and the
same obligation by virtue of which each of them, in relation to his
co-debtors, possesses the character of debtor only with respect to his

200
New provision.
201
8 Manresa, 5th Ed., Bk. 1, p. 469.
202
Art. 1140, Spanish Code.
203
4 Sanchez Roman 50; Giorgi, Teoria de las Obligaciones, Vol. 1, p. 89.

187
Arts. 1210-1211 OBLIGATIONS

share in the obligation, but in relation to the common creditor or


creditors, represents all of the other debtors.204
Idem; Effect of active solidarity in general. — The
most fundamental effect of active solidarity is the creation of a
relationship of mutual agency among the solidary creditors by
virtue of which each creditor is empowered to exercise against the
debtor or debtors not only the rights which correspond to him, but
also all the rights which correspond to the other creditors, with the
consequent obligation to render an accounting of his acts to such
creditors. In the words of Manresa:

“The essence of solidarity among the creditors consists of


the power of each to claim and exercise the rights of all, with the
consequent obligation to pay to each what properly corresponds
to him upon the exercise of said rights. There is, therefore, equal
mutual representation from which none can be excluded without
destroying the solidary character of the obligation. Hence, the
essential feature of this obligation is that of mutual agency
among the active subjects of the obligation, who are empowered
to exercise not only their own rights, but also that of the others,
against any debtor or debtors, with the consequent obligation to
render an accounting of his acts to the other creditors.’’205

It is this relationship of mutual agency which is the basis of the


different rules stated in Arts. 1212 to 1215 of the Code.
Idem; Effect of passive solidarity in general. — In passive
solidarity, each solidary debtor, insofar as the creditor or creditors
are concerned, is the debtor of the entire amount; however, with
respect to his co-debtors, he is a debtor only to the extent of his share
in the obligation.206 Hence, the most fundamental effect of solidarity
among the debtors is the liability of each debtor for the payment
of the entire obligation, with the consequent right to demand
reimbursement from the others for their corresponding shares once
payment has been made.
Idem; id. — Distinguished from suretyship. — Passive sol-
idarity must be distinguished from solidary guaranty (suretyship).

204
Giorgi, Teoria de las Obligaciones, Vol. 1, pp. 90, 115.
205
8 Manresa, 5th Ed., Bk. 1, pp. 431-432.
206
3 Castan, 7th Ed., p. 73.

188
DIFFERENT KINDS OF OBLIGATIONS Arts. 1210-1211
Joint and Solidary Obligations

According to the second paragraph of Art. 2047 of the Code, a soli-


dary guarantor or surety (fiador in solidum) is a person who binds
himself solidarily with the principal debtor. Hence, it is evident that
a solidary debtor and a surety are similar in the sense that they are
both solidarily liable to the creditor for the payment of the entire
obligation. Strictly speaking, however, they may be distinguished
from each other as follows:
(1) A solidary debtor, unlike a surety, is liable not only for
the payment of the debt of another, but also for the payment of a
debt which is properly his own;
(2) If a solidary debtor pays the entire amount of the
obligation, he has a right to demand reimbursement from his co-
debtors of the shares which correspond to them in the obligation,
whereas if a surety pays the entire amount of the obligation, he has
a right to demand reimbursement from the principal debtor of the
entire amount that he has paid; and
(3) The rights of a solidary debtor are more limited than those
of a surety. Thus, in passive solidarity an extension of time granted
by the creditor to one of the solidary debtors for the payment of the
obligation without the knowledge or consent of the other solidary
debtors would not have the effect of releasing the latter from their
obligation,207 but in suretyship such an extension granted to the
principal debtor would release the surety from the obligation.208
While a guarantor may bind himself solidarily with the principal
debtor, the liability of a guarantor is different from that of a solidary
debtor. Thus, Tolentino explains guarantor is different from that of
a solidary debtor. Thus, Tolentino explains: “A guarantor who binds
himself in solidum with the principal debtor under the provisions
of the second paragraph does not become a solidary co-debtor to
all intents and purposes. There is a difference between a solidary
co-debtor and a fiador in solidum (surety). The latter, outside of
the liability he assumes to pay the debt before the property of the
principal debtor has been exhausted, retains all the other rights,
actions and benefits which pertain to him by reason of the fiansa;
while a solidary co-debtor has no other rights than those bestowed

207
Inchausti & Co. vs. Yulo, 34 Phil. 978.
208
Villa vs. Garcia Bosque, 49 Phil. 126; Stevenson vs. Climaco, CA 36 Off. Gaz.
1571.

189
Arts. 1210-1211 OBLIGATIONS

upon him in Section 4, Chapter 3, Title I, Book IV of the Civil Code.’’


(Inciong, Jr. vs. Court of Appeals, June 26, 1996, 257 SCRA 580).
Idem; Effect of varied conditions or periods. — The
vinculum or bond which binds the creditors and the debtors in
solidary obligations may be either uniform or varied, depending
upon whether they are bound in the same manner and by the same
conditions or periods or not.209 Consequently, the relationship of
solidarity is not destroyed by the fact that the obligation of one debtor
is conditional, the obligation of another is with a term or period,
and the obligation of a third is pure. Neither is the character of
solidarity destroyed if the debtors are bound by different conditions
or by different periods. A creditor in such cases, can still commence
an action against anyone of the debtors for compliance with the
entire obligation minus the portion or share which corresponds to
the debtor affected by the condition or period.210 Thus, if A, B, and C
borrowed P60,000 from X binding themselves jointly and severally
to pay the entire obligation, but in the promissory note executed
by them there is a stipulation that in the case of A, the obligation
shall become due and demandable on June 15, 1972; in the case of
B, it shall become due and demandable on June 15, 1974; and in the
case of C, it shall become due and demandable on June 15, 1976,
and subsequently, immediately, after June 15, 1972, X brought an
action for collection of the entire obligation against A alone because
of the latter’s failure to pay despite repeated demands, will the
action prosper? Undoubtedly, the obligation here is solidary. This is
clear from the provision of Art. 1211 of the Civil Code. However, in
solidary obligations of this type, the right of the creditor is limited
to the recovery of the share owed by the debtor whose obligation has
already matured leaving in suspense his right to recover the shares
corresponding to the other debtors whose obligations have not yet
matured. This restriction does not destroy the solidary character
of the obligation, because, ultimately, he can still compel one and
the same debtor, if that is his wish, to pay the entire obligation.
Therefore, in the instant case, X can collect only P20,000 from A,
which is the latter’s share in the obligation. He shall have to wait for
June 15, 1974, when B’s obligation shall have matured, and for June
15, 1976, when C’s obligation shall have also matured. On June 15,

209
4 Sanchez Roman 50.
210
Inchausti & Co. vs. Yulo, 34 Phil. 978.

190
DIFFERENT KINDS OF OBLIGATIONS Arts. 1210-1211
Joint and Solidary Obligations

1974, he can collect P20,000 from either A or B. On June 15, 1976,


he can again collect another P20,000 from either A or B or C.

Inchausti & Co., vs. Yulo


34 Phil. 978

On August 12, 1909, six brothers and sisters, defendant


among them, executed an instrument admitting their solidary
indebtedness to the plaintiff for P253,446.42, at 10% interest
per annum, payable in five annual installments, the first
installment to be paid on June 13, 1910. Because of default in
the payment of the first installment, plaintiff, in accordance
with the acceleration clause expressly agreed upon, brought this
action on March 27, 1911, against Gregorio Yulo for the payment
of the entire indebtedness plus interests. Subsequently, on May
12, 1911, three of the debtors, Francisco, Manuel and Carmen,
entered into an agreement with plaintiff, evidenced by a notarial
instrument, by virtue of which the amount of the indebtedness
was reduced to P225,000, at 6% interest per annum, payable
in eight annual installments, the first installment to be paid
on June 30,1912. Some of the questions now raised are the
following: (1) Can the plaintiff sue Gregorio Yulo alone,
considering that there are other debtors? (2) What is the effect
of the partial remission of the debt made by the creditor in favor
of three of the debtors? (3) What is the effect of the extension of
time for payment granted by the creditor to three of the debtors?
The Supreme Court, speaking through Chief Justice Arellano,
held:
“With respect to the question as to whether the plaintiff
can sue the defendant alone, it cannot be doubted that, the
debtors, having obliged themselves in solidum, the creditor can
bring its action in toto against any one of them, inasmuch as
this was surely its purpose in demanding that the obligation
contracted in its favor should be solidary, and even though the
creditor may have stipulated with some of the solidary debtors
diverse installments and conditions, as in this case, Inchausti
& Co. did with its debtors Manuel, Francisco and Carmen Yulo
through the instrument of May 12, 1911, this does not lead to
the conclusion that the solidarity stipulated in the instrument of
August 12, 1909, is broken, as we already know the law provides
that ‘solidarity may exist even though the debtors are not bound
in the same manner and for the same periods and under the
same conditions.’’ (Art. 1140, Civil Code — now Art. 1211, New
Civil Code.)

191
Arts. 1210-1211 OBLIGATIONS

“With respect to the question involving the effect of the


partial remission, the obligation being solidary, the remission
of any part of the debt made by a creditor in favor of one or
more of the solidary debtors necessarily benefits the others,
and therefore, there can be no doubt that, in accordance with
the provision of Article 1143 (now Art. 1215) of the Civil Code,
the defendant has the right to enjoy the benefits of the partial
remission of the debt granted by the creditor.
“Wherefore, we hold that although the contract of May 12,
1911, has not novated that of August 12, 1909, it has affected that
contract and the outcome of the suit brought against Gregorio
Yulo alone for the sum of P253,445.42; and in consequence
thereof, the amount stated in the contract of August 12, 1909,
cannot be recovered but only that stated in the contract of May
12, 1911, by virtue of the remission granted to the three of the
solidary debtors in this instrument, in conformity with what is
provided in Article 1143 (now Art. 1215), Civil Code, cited by the
creditor himself.
“With respect to the question involving the effect of the
extension of time for payment granted to the other solidary
debtors, Gregorio Yulo cannot allege as a defense to the action
that it is premature. When the suit was brought on March 27,
1911, the first installment of the obligation had already matured
on June 30, 1910, and with the maturity of this installment,
the first not having been paid, the whole debt had matured,
according to the express agreement of the parties. Neither could
he invoke a like exception for the shares of solidary co-debtors
Pedro and Concepcion Yulo, they being in identical condition as
he. But as regards Francisco, Manuel and Carmen Yulo, none
of the installment payable under their obligation, contracted
later, had as yet matured. The first payment, as already stated,
was to mature on June 30, 1912. This exception or personal
defense of Francisco, Manuel and Carmen Yulo ‘as to that part
of the debt for which they were responsible’ can be set up by
Gregorio Yulo as a partial defense to the action. The part of
the debt for which these three are responsible is three-sixths
of P225,000, or P112,500, so that Gregorio Yulo may claim
that, even acknowledging that the debt for which he is liable
is P225,000, nevertheless not all of it can now be demanded of
him, for that of it which pertains to his co-debtors is not yet due,
a state of affairs which not only prevents any action against the
persons who were granted the term which has not yet matured,
but also against the other solidary debtors who being ordered to
pay could not now sue for a contribution, and for this reason the
action will be only as to P112,500.

192
DIFFERENT KINDS OF OBLIGATIONS Arts. 1210-1211
Joint and Solidary Obligations

It has been said in the brief of the appellee that the


prematurity of the action is one of the defenses derived
from the nature of the obligation, according to the opinion of
the commentator of the Civil Code, Mucius Scaevola, and
consequently, the defendant Gregorio Yulo may make use of it in
accordance with Article 1146 (now Art. 1222) of the Civil Code.
It may be so and yet, taken in that light, the effect would not
be different from that already stated in this decision; Gregorio
Yulo could not be freed from making any payment whatever but
only from the payment of the part of the debt which corresponds
to his co-debtors Francisco, Manuel and Carmen. The same
author, considering the case of the opposing contention of two
solidary debtors as to one of whom the obligation is pure and
unconditional and as to the other it is conditional and is not
yet demandable, and comparing the disadvantages which must
flow from holding that the obligation is demandable with those
which must follow if the contrary view is adopted, favors this
solution of the problem.
“ ‘There is a middle ground (he says), from which we can
safely set out, to wit, that the creditor may of course demand
the payment of his credit against the debtor not favored by any
condition or extension of time.’ And further on, he decides the
question as to whether the whole debt may be recovered or only
that part unconditionally owing or which has already matured,
saying ‘Without failing to proceed with juridical rigor, but
without failing into extravagances or monstrosities, we believe
that the solution of the difficulty is perfectly possible. How? By
limiting the right of the creditor to the recovery of the amount
owed by the debtor bound unconditionally or as to whom the
obligation has matured, and leaving in suspense the right to
demand the payment of the remainder until the expiration
of the term or the fulfillment of the condition. But what then
is the effect of solidarity? How can this restriction of right be
reconciled with the duty imposed upon each one of the debtors to
answer for the whole obligation? Simply this, by recognizing in
the creditor the power, upon the performance of the condition or
the expiration of the term, of claiming from any one or all of the
debtors that part of the obligation affected by those conditions.
(Scaevola, Civil Code, 19, 800 and 801)
“It has been said also by the trial judge in his decision that
if a judgment be entered against Gregorio Yulo for the whole
debt of P253,445.42 he cannot recover from Francisco, Manuel
and Carmen Yulo that part of the amount which is owed by
them because they are obliged to pay only P225,000 and this

193
Arts. 1210-1211 OBLIGATIONS

in eight installments none of which was due. For this reason he


was of the opinion that he (Gregorio Yulo) cannot be obliged to
pay his part of the debt before the contract of May 12, 1911, may
be enforced, and consequently, he decided the case in favor of
the defendant, without prejudice to the plaintiff proceeding in
due time against him for his proportional part of the joint debt.
“But in the first place, taking into consideration the
conformity of the plaintiff and the provision of Article 1143 (now
Art. 1215) of the Civil Code it is no longer possible to sentence the
defendant to pay the P253,445.42 of the instrument of August
12, 1909, but if anything, the P225,000 of the instrument of May
12, 1911. In the second place, neither is it possible to curtail the
defendant’s right of recovery from the signers of the instrument
of May 12, 1911, for he was justly exonerated from the payment
of that part of the debt corresponding to them by reason of there
having been upheld in his favor the exception of an unmatured
installment which pertains to them. In the third place, it does
not seem just. Mucius Scaevola considers it ‘absurd,’ that, there
being a debtor who is unconditionally obliged as to whom the
debt has matured, the creditor should be forced to await the
realization of the condition (or the expiration of the term). Hence,
the contract of May 12, 1911 has affected the action and the suit,
to the extent that Gregorio Yulo has been able to make in his
favor the defense of remission of part of the debt, thanks to the
provision of Article 1143 (now Art. 1222), because it is a defense
derived from the nature of the obligation, so that although the
said defendant was not a party to the contract in question,
yet because of the principle of solidarity he was benefited by
it. The defendant Gregorio Yulo cannot be ordered to pay the
P253,445.42 claimed from him in the suit here, because he has
been benefited by the remission made by the plaintiff to three of
his co-debtors, many times named above.
“Consequently, the debt is reduced P225,000. But, as
it cannot be enforced against the defendant except as to the
three-sixths part which is what he can recover from his joint co-
debtors Francisco, Manuel, and Carmen, at present judgment
can be rendered only as to the P112,500. We, therefore, sentence
the defendant Gregorio Yulo to pay the plaintiff Inchausti &
Co. P112,500, with the interest stipulated in the instrument of
May 12,1911, from March 15, 1911, and the legal interest on
this interest due, from the time that it was claimed judicially in
accordance with Article 1109 (now Art. 2212) of the Civil Code,
without any special finding as to cost. The judgment appealed
from is reversed. So ordered.”

194
DIFFERENT KINDS OF OBLIGATIONS Art. 1212
Joint and Solidary Obligations

Art. 1212. Each one of the solidary creditors may do


whatever may be useful to the others, but not anything
which may be prejudicial to the latter.211
Effect of Beneficial and Prejudicial Acts. — As a conse-
quence of the relationship of mutual agency existing among the soli-
dary creditors, each one of them may do whatever may be useful or
beneficial to the others, but not anything which may be prejudicial
to the latter.212 Hence, each solidary creditor may demand the pay-
ment or performance of the entire obligation from one, some or all of
the debtors.213 Such a demand will have the effect of benefiting not
only the solidary creditor who made it, but also the other solidary
creditors. Consequently, if the entire obligation is paid, the latter
will have the right to demand from the creditor who received the
payment the shares corresponding to them in the obligation.214 As
far as prejudicial acts are concerned, we must distinguish between
the effect of such acts upon the relationship of the solidary creditors
with the debtor or debtors, and the effect upon the entirely different
relationship of the solidary creditors among themselves. As far as
the debtor or debtors are concerned, a prejudicial act performed by a
solidary creditor shall be valid and binding because of the principle
of mutual representation which exists among the creditors; howev-
er, as far as the solidary creditors are concerned, the creditor who
performed the act shall incur the obligation of indemnifying the oth-
ers for damages.215 There is, therefore, no incompatibility between
the rule regarding prejudicial acts stated in Art. 1212 and the rule
regarding novation, compensation, confusion or remission stated in
Art. 1215. The first refers to the effect of prejudicial acts upon the
relationship of the creditors among themselves; the second refers
to the effect upon the entirely different relationship of the creditors
with the debtor or debtors. It is clear that the Code sanctions the ef-
ficacy of prejudicial acts such as novation, compensation, confusion
or remission as far as the debtor or debtors are concerned, but not
as far as the other solidary creditors are concerned.216 Consequently,
according to Art. 1215, the novation, compensation, confusion or re-

211
Art. 1141, Spanish Civil Code, in modified form.
212
Art. 1212, Civil Code.
213
rts. 1214, 1216, Civil Code.
214
Art. 1215, par. 2, Civil Code.
215
3 Castan, 7th Ed., p. 72.
216
8 Manresa, 5th Ed., Bk. 1, pp. 432-433.

195
Arts. 1213-1214 OBLIGATIONS

mission of the debt shall result in the extinguishment of the obliga-


tion, but the solidary creditor responsible for the act shall be liable
to the others for the share in the obligation corresponding to them.

Art. 1213. A solidary creditor cannot assign his rights


without the consent of the others.217
Effect of Assignment of Rights. — The rule or precept stated
in the above article is based on the opinion of Manresa and other
Spanish commentators, that since active solidarity is essentially a
mutual agency, and therefore, is predicated upon mutual confidence
which implies that the personal qualifications of each of the solidary
creditors had been taken into consideration when the obligation was
constituted, it is only proper that a solidary creditor cannot assign
his rights without the consent of the others.
What is the effect if a solidary creditor assigns his rights
without the consent of the other solidary creditors? The answer to
this question shall have to be qualified. If the assignment is made
to anyone of the other solidary creditors, it is clear that there is no
violation of the precept stated in Art. 1213, because in such case
there can be no invasion of the personal or confidential relationship
existing among the solidary creditors. However, if the assignment
is made to a third person, there would be a clear violation of the
precept, in which case the other solidary creditors, as well as the
debtor or debtors, are not bound to recognize the validity or the
efficacy of the assignment. This is, of course, without prejudice to
the liability of the creditor-assignor to the other solidary creditors
for damages which may have been incurred by them as a result of
the prohibited assignment.

Art. 1214. The debtor may pay any one of the solidary
creditors; but if any demand, judicial or extrajudicial, has
been made by one of them, payment should be made to him.218
Effect of Demand by a Creditor. — Any solidary creditor
may demand the payment or performance of the obligation from one,
some or all of the debtors. This is, of course, a logical consequence

217
New provision.
218
Art. 1142, Spanish Civil Code, in modified form.

196
DIFFERENT KINDS OF OBLIGATIONS Art. 1215
Joint and Solidary Obligations

of the rule stated in Art. 1212 that each creditor may do what is
beneficial to the others. Such a demand may be either judicial or
extrajudicial. In such case, payment shall be made only to the
creditor who made the demand and to no other. However, in the
absence of any judicial or extrajudicial demand, payment may be
made by the debtor to anyone of the solidary creditors.219
In case of mixed solidarity, a judicial or extrajudicial demand
would prohibit the debtor upon whom the demand is made from
making a payment to any creditor other than to the one who made
the demand. This prohibition, however, does not extend to the other
debtors upon whom no demand has been made and so each of such
debtors can still validly tender payment to a creditor other than to
the creditor who made the demand.220

Art. 1215. Novation, compensation, confusion or remis-


sion of the debt, made by any of the solidary creditors or
with any of the solidary debtors, shall extinguish the obliga-
tion, without prejudice to the provisions of Article 1219.
The creditor who may have executed any of these acts, as
well as he who collects the debt, shall be liable to the others
for the share in the obligation corresponding to them.221
Effect of Novation. — Novation is the change or substitution
of an obligation by another, resulting in its extinguishment or
modification, either by changing its object or principal condition, or
by substituting another in place of the debtor, or by subrogating a
third person in the rights of the creditor.222 The peculiar feature of
this mode of extinguishing obligations is that while it extinguishes
the obligation, it creates a new one in lieu of the old. Hence, the
liability of the solidary creditor who effected the novation to the
other solidary creditors shall depend upon the character of the
new obligation which is created. If the novation of the obligation
is effected by changing its object or principal condition, the new
obligation which is created may be either prejudicial or beneficial

219
Art. 1214, Civil Code.
220
8 Manresa, 5th Ed., Bk. 1, p. 437.
221
Art. 1143, Spanish Civil Code.
222
8 Manresa, 5th Ed., Bk. 1, p. 751.

197
Art. 1215 OBLIGATIONS

to the other solidary creditors depending upon the circumstances


of each particular case. If it is prejudicial, the solidary creditor
who effected the novation shall reimburse the others for damages
incurred by them; if it is beneficial and the creditor who effected the
novation is able to secure performance of the new obligation, such
creditor shall be liable to the others for the share which corresponds
to them, not only in the obligation, but also in the benefits. If the
novation is effected by substituting another person in place of the
debtor, the solidary creditor who effected the novation is liable for
the acts of the new debtor in case there is a deficiency in performance
or in case damages are incurred by the other solidary creditors as a
result of the substitution. If the novation is effected by subrogating
a third person in the rights of the solidary creditor responsible for
the novation, the obligation of the debtor or creditors is not in reality
extinguished, because in this type of novation the relation between
the other creditors not substituted and the debtor or debtors is still
maintained. However, if the novation is effected by subrogating a
third person in the rights of all the solidary creditors, the creditor
responsible for such novation is liable to the other creditors for the
share which corresponds to them in the obligation.223
As a general rule, extension of time for the payment of the ob-
ligation given by the creditor to a solidary debtor does not consti-
tute a novation with respect to the other solidary debtors, because
in order that an obligation may be extinguished by another which
substitutes it, it is necessary that it should be so expressly declared
or that the old and the new obligation are incompatible with each
other on every point. However, if the creditor proceeds against the
solidary debtor or debtors to whom no extension was given for pay-
ment of the whole obligation, such debtor or debtors can set up the
partial defense of extension of time as regards that part of the debt
for which the debtor or debtors to whom the extension was given are
responsible.224 In suretyship, however, the rule is that an extension
of time granted to the principal debtor by the creditor without the
consent of the surety extinguishes the latter’s liability;225 but where
a surety is liable for different payments, such as installments or

223
Ibid., pp. 444-445.
224
Art. 1222, Civil Code; Inchausti & Co. vs. Yulo, 34 Phil. 978.
225
Art. 2079, Civil Code; Asiatic Petroleum Co. vs. Hizon, 45 Phil. 532; National
Bank vs. Veraguth, 50 Phil. 253.

198
DIFFERENT KINDS OF OBLIGATIONS Art. 1215
Joint and Solidary Obligations

rents, or upon a series of promissory notes, an extension of time as to


one or more will not affect the liability of the surety for the others.226
Effect of Compensation and Confusion. — Compensation
is a figurative operation of weighing two obligations simultaneously
in order to extinguish them to the extent that the amount of one
is covered by the amount of the other.227 Confusion, on the other
hand, refers to the merger of the qualities of creditor and debtor
in one and the same person with respect to one and the same
obligation.228 If the confusion or compensation is partial, there may
be some doubt as to the part of the obligation to which the confusion
or compensation shall be applied. In such case, the question is
resolved by applying the rules established in this Code regarding
application of payment. This is, of course, without prejudice to the
right of the other creditors who have not caused the confusion or
compensation to be reimbursed to the extent that their rights are
diminished or affected. If the confusion or compensation is total, the
obligation is extinguished altogether and what is left is the ensuing
liability for reimbursement within each group, the creditor causing
the confusion or compensation being obliged to reimburse the other
creditors, and the debtors benefited by the extinguishment of the
obligation being obliged to reimburse the debtor who made the
confusion or compensation possible.229
Effect of Remission. — Remission is an act of pure liberality
by virtue of which the creditor, without having received any
compensation or equivalent, renounces his right to enforce the
obligation, thereby extinguishing the same either in its entirety or
in the part or aspect thereof to which the remission refers.230 The
remission or condonation referred to in Art. 1215 may be total or
partial, effected by one, some, but not all, of the solidary creditors
in favor of one, some or all of the debtors. Whether total or partial,
the obligation is extinguished in its entirety or in that part or aspect
thereof to which the remission refers, giving rise to a liability on
the part of the creditor or creditors responsible for the remission to
reimburse the others for the share in the obligation corresponding to

226
Villa vs. Garcia Bosque, 49 Phil. 126.
227
8 Manresa, 5th Ed., Bk. 1, p. 713.
228
4 Sanchez Roman 421.
229
8 Manresa, 5th Ed., Bk. 1, pp. 443-444.
230
Ibid., p. 673.

199
Art. 1215 OBLIGATIONS

them. However, as among the creditors responsible for the remission,


such liability does not arise.231
As far as the solidary debtors are concerned, the effects of
remission may be summarized as follows:
(1) If the remission covers the entire obligation, then the
obligation is totally extinguished and the entire juridical relation
among the debtors is terminated altogether. This is true whether the
remission is for the benefit of all of the debtors or of only one of them.
As a matter of fact, the Code in Art. 1220 expressly declares that the
remission of the whole obligation, obtained by one of the solidary
debtors, does not entitle him to reimbursement from his co-debtors.
This rule is based on the character of remission as an act of pure
liberality. In reality, the remission of a debt is a donation. Hence,
if the whole obligation is condoned through the efforts of a solidary
debtor or for his benefit, he is not entitled to any reimbursement
from his co-debtors.232
(2) If the remission is for the benefit of one of the debtors
and it covers his entire share in the obligation, he is completely
released from the creditor or creditors, but he is still bound to his
co-debtors. Consequently, if one of the latter subsequently pays the
balance of the obligation which is not condoned and he proceeds
against the others for reimbursement of their respective shares in
the obligation, but one of them is insolvent, the debtor for whose
benefit the remission had been effected, shall still have to share in
the portion which corresponds to the insolvent.
(3) If the remission is for the benefit of one of the debtors and
it covers only a part of his share in the obligation, his character as a
solidary debtor is not affected; it continues both with respect to the
creditor or creditors and with respect to the other debtors.
Whether the remission covers the entire share of a solidary
debtor in the obligation or only a part thereof, if the creditor or
creditors proceed against any one of the other solidary debtors for
the payment of the entire obligation, such debtor can always avail
himself of the defense of partial remission.233

231
Ibid., pp. 440-443.
232
Ibid.
233
Art. 1222, Civil Code; Inchausti & Co. vs. Yulo, 34 Phil. 978.

200
DIFFERENT KINDS OF OBLIGATIONS Art. 1216
Joint and Solidary Obligations

It must be noted, however, that the above rules cannot be


applied in case the debt had already been totally paid by anyone of
the solidary debtors before the remission was effected.234 Otherwise,
there would always be the possibility that the creditor might
fraudulently condone the share of a solidary debtor whom he desires
to favor even after the debt had already been totally paid by another
solidary debtor.235
Effect of Payment to a Creditor. — If one of the solidary
creditors is able to collect the entire amount of the debt from one
or some or all of the solidary debtors, the obligation is totally
extinguished, although there arises a consequent obligation on
his part to render an account to his co-creditors. Under the law,
he can be held liable to the others for the share in the obligation
corresponding to them.236

Art. 1216. The creditor may proceed against any one of


the solidary debtors or some or all of them simultaneously.
The demand made against one of them shall not be an obstacle
to those which may subsequently be directed against the
others, so long as the debt has not been fully collected.237
Effect of Demand upon a Debtor. — Since any one of the
solidary debtors can be held liable for the payment of the entire
obligation, it is but logical that the creditor may proceed against
any one or some or all of them simultaneously.238 Furthermore, the
demand made against one of them shall not be an obstacle to those
which may subsequently be directed against the others so long as
the debt has not been fully collected.239 Thus, where the guarantor
binds himself solidarily with the principal debtor to pay the latter’s
debt, he cannot and should not complain that the creditor should
thereafter proceed against him to collect his credit. This is so
because the creditor may proceed against any one of the solidary
debtors or against all of them simultaneously, the fact that action
has been brought or that payment has been enforced against one of

234
Art. 1219, Civil Code.
235
8 Manresa, 5th Ed., Bk. 1, pp. 442-443.
236
Art. 1215, par. 2, Civil Code.
237
Art. 1444, Spanish Civil Code, in modified form.
238
Art. 1216, Civil Code.
239
Ibid.

201
Art. 1216 OBLIGATIONS

them not being a bar thereto so long as there remains a balance to


collect.240 And it cannot be contended that the failure of the creditor
to include the solidary guarantor or surety as a defendant in the
first suit implies a waiver of his right of action against such surety,
since under the law the bringing of an action against the principal
debtor to enforce the payment of the obligation is not inconsistent
with, and does not preclude, the bringing of another to compel the
surety to fulfill his obligation under the surety agreement.241
A creditor’s right to proceed against the surety exists indepen-
dently of his right to proceed against the principal. Under Article
1216 of the Civil Code, the creditor may proceed against any one of
the solidary debtors or some or all of them simultaneously. The rule,
therefore, is that if the obligation is joint and several, the creditor
has the right to proceed even against the surety alone. Since, gener-
ally, it is not necessary for a creditor to proceed against a principal
in order to hold the surety liable, where, by the terms of the con-
tract, the obligation of the surety is the same as that of the principal,
then as soon as the principal is in default, the surety is likewise in
default, and may be sued immediately and before any proceedings
are had against the principal. Perforce, in accordance with the rule
that, in the absence of statute or agreement otherwise, a surety is
primarily liable, and with the rule that his proper remedy is to pay
the debt and pursue the principal for reimbursement, the surety
cannot at law, unless permitted by statute and in the absence of
any agreement limiting the application of the security, require the
creditor or obligee, before proceeding against the surety, to resort to
and exhaust his remedies against the principal, particularly where
both principal and surety and equally bound. (Palmares vs. Court of
Appeals, March 31, 1998, 288 SCRA 426.)
The Supreme Court further stated in the aforementioned case
of Palmares vs. Court of Appeals that “in this regard, we need only
to reiterate the rule that a surety is bound equally and absolutely
with the principal, and as such, is deemed an original promissor
and debtor from the beginning. This is because in suretyship, there
is but one contract, and the surety is bound by the same agreement
which binds the principal. In essence, the contract of a surety starts
with the agreement.

240
La Yebana vs. Valenzuela, 67 Phil. 482.
241
Phil. Nat. Bank vs. Confesor, CA, 37 Off. Gaz. 3295.

202
DIFFERENT KINDS OF OBLIGATIONS Art. 1216
Joint and Solidary Obligations

“A surety is not even entitled as a matter of right to be given


notice of the principal’s default. Even if it were otherwise, demand
on the sureties is not necessary before bringing suit against them
since the commencement of the suit is a sufficient demand. On this
point, it may be worth mentioning that a surety is not even entitled,
as a matter of right, to be given notice of the principal’s default.
Inasmuch as the creditor owes no duty of active diligence to take
care of the interest of the surety, his mere failure to voluntarily give
information to the surety of the default of the principal cannot have
the effect of discharging the surety. The surety is bound to take
notice of the principal’s default and to perform the obligation. He
cannot complain that the creditor has not notified him in the absence
of a special agreement to that effect in the contract of suretyship.’’
“A surety is liable as much as his principal is liable and
absolutely liable as soon as default is made without any demand
upon the principal whatsoever or any notice of default. The alleged
failure of respondent corporation to prove the fact of demand on the
principal debtors, by not attaching copies thereof to its pleadings,
is likewise immaterial. In the absence of a statutory or contractual
requirement, it is not necessary that payment or performance of
his obligation be first demanded of the principal, especially where
demand would have been useless; nor is it a requisite, before
proceeding against the sureties, that the principal be called on to
account. The underlying principle therefore is that a suretyship
is a direct contract to pay the debt of another. A surety is liable
as much as his principal is liable, and absolutely liable as soon as
default is made, without any demand upon the principal whatsoever
or any notice of default. As an original promisor and debtor from
the beginning, he is held ordinarily to know every default of his
principal. (Palmares vs. Court of Appeals, supra.)
As a general rule, the death of either the creditor or the debtor
does not extinguish the obligation. Obligations are transmissible to
the heirs, except when the transmission is prevented by the law,
the stipulation of the parties or the nature of the obligation. Only
obligations that are personal or are identified with the persons
themselves are extinguished by death. Sec. 5 of Rule 86 of the Rules
of Court expressly allows the prosecution of money claims arising
from a contract against the estate of a deceased debtor. Evidently,
those claim are not extinguished. What is extinguished is only the

203
Art. 1217 OBLIGATIONS

obligee’s action or suit filed before the court, which is not then acting
as a probate court.
As provided in the case of Stronghold Insurance Company
Inc vs. Republic-Asahi Glass Corporation, whatever monetary
liabilities or obligations the deceased Jose Santos (the proprietor
of JDS Construction which executed a performance bond jointly
and severally with petitioner-surety) had under his contracts
with respondent Republic-Asahi were not intransmissible by their
nature, by stipulation or by provision of law. Hence,death did not
result in the extinguishment of those obligations or liabilities, which
merely passed on to the estate of Santos. Death is not a defense that
he or his estate can set up to wipe out the obligations under the
performance bond. Consequently, the petitioner as surety cannot use
his death to escape its monetary obligation under its performance
bond. As a surety, petitioner is solidarily liable with Santos in
accordance with Art. 2017, in relation to Art. 1216 of the New Civil
Code. The surety’s obligation is not an original and direct one for the
performance of his own act, but merely accessory or collateral to the
obligation contracted by the principal. Nevertheless, although the
contract of a surety is in essence secondary only to a valid principal
obligation, his liability to the creditor or promisee of the principal is
said to be direct, primary and absolute; In other words, he is directly
and equally bound with the principal.
The death of the principal debtor will not work to convert,
decrease or nullify the substantive right of the solidary creditor.
Despite the death of the principal debtor, respondent may still
sue petitioner alone, in accordance with the solidary nature of the
latter’s liability under the performance bond. Under the law and
jurisprudence, respondent may sue, separately or together, the
principal debtor and the petitioner , in view of the solidary nature
of their liability (Stronghold Insurance Company Inc. vs. Republic-
Asahi Glass Corporation, supra).

Art. 1217. Payment made by one of the solidary debtors


extinguishes the obligation. If two or more solidary debtors
offer to pay, the creditor may choose which offer to accept.
He who made the payment may claim from his co-debtors
only the share which corresponds to each, with the interest
for the payment already made. If the payment is made before

204
DIFFERENT KINDS OF OBLIGATIONS Art. 1218
Joint and Solidary Obligations

the debt is due, no interest for the intervening period may be


demanded.
When one of the solidary debtors cannot, because of
his insolvency, reimburse his share to the debtor paying the
obligation, such share shall be borne by all his co-debtors, in
proportion to the debt of each.242
Art. 1218. Payment by a solidary debtor shall not entitle
him to reimbursement from his co-debtors if such payment is
made after the obligation has prescribed or become illegal.243

Effect of Payment by a Debtor. — Where payment is made


by one of the solidary debtors, the effect is either the total or partial
extinguishment of the obligation depending upon whether the entire
amount of the debt is paid or only a part thereof.
Once payment is made by one of the solidary debtors of the
entire obligation, there arises immediately a consequent right of
such debtor to claim from his co-debtors the share which corresponds
to them, with interest for the payment already made.244 This right,
however, is not available to a debtor who makes the payment after
the obligation has prescribed or has become illegal.245
As a rule, the interest shall be computed from the time payment
was made. However, if payment was made before the debt became
due, no interest during the intervening period may be demanded.246
In other words, the interest shall be computed not from the time
payment was made, but from the time the debt became due. Thus, if
A, B, and C became indebted jointly and severally to X for P30,000
and it was agreed that such debt shall be paid on December 1, 1966,
but instead payment was made by A on June 1, 1965, he can demand
from B and C only the share which corresponds to each in the
obligation, as well as the interest thereon from December 1, 1966.
What would be the effect if one of the solidary debtors cannot,
because of his insolvency, reimburse his share to the debtor paying
the obligation? According to the third paragraph of Art. 1217, such

242
Art. 1145, Spanish Civil Code, in modified form.
243
New provision.
244
Art. 1217, par. 2, Civil Code.
245
Art. 1218, Civil Code.
246
Art. 1217, par. 2, Civil Code.

205
Art. 1218 OBLIGATIONS

share shall be borne by all his co-debtors, in proportion to the debt


of each.
Idem; Nature of right of debtor. — It must be observed that,
under the law, before the payment is actually made, the right of
the solidary debtor to demand reimbursement from his co-debtors is
merely contingent and conditional. Once payment has already been
made, the right becomes real and existing. The old obligation in
favor of the creditor is extinguished, but a new obligation is created
in favor of the solidary debtor who made the payment. There is,
therefore, no real case of subrogation.247

Bank of the P.I. vs. McCoy


52 Phil. 831

This action was originally instituted by plaintiff bank


against McCoy and six other solidary debtors for the payment
of an indebtedness of P16,000. When the case was ready for
hearing, McCoy entered into a compromise with plaintiff and
paid P12,000 in satisfaction of the debt. The question now is
— can McCoy be substituted as plaintiff against her former co-
defendants for the purpose of compelling them to reimburse to
her their proportionate shares in the obligation?
Held: “By paying off the claim which was originally the
subject of litigation, the executrix was subrogated to the rights
of the original plaintiff, and if the situation was one involving
a joint and several liability on the part of all of the original
defendants, the executrix, upon paying off the claim, necessarily
acquired the right to prosecute the action for contribution against
her co-defendants. But it is said that the amendment by which
the executrix was permitted to substitute the original plaintiff
had the effect of changing the cause of action entirely, since the
original action was founded upon a debt supposedly owing to the
bank from the seven defendants, whereas after the instant debt
was paid, the only right of action vested in the executrix was the
right to obtain contribution. It must be remembered, however,
that if the original action had proceeded to its end against all of
the defendants, the court, in giving judgment, would have taken
account of the obligation of each to contribute his proportionate
share to the payment of the judgment, and what has been finally
done, as the case shaped itself here, is to give effect to the same

247
Wilson vs. Berkenkotter, 49 Off. Gaz. 1410.

206
DIFFERENT KINDS OF OBLIGATIONS Art. 1218
Joint and Solidary Obligations

obligation. It was in our opinion a proper case of substitution of


parties resulting from the subrogation of one of the defendants
to the right of the plaintiff.”248

Wilson vs. Berkenkotter


49 Off. Gaz. 1410

On June 30, 1938, Berkenkotter, Wilson and Gulick


executed a promissory note promising jointly and severally
to pay an indebtedness of P90,000 to the Chartered Bank of
India, Australia and China plus interest. Payment was made
by Berkenkotter in November, 1944, with Japanese military
notes. After liberation, Berkenkotter demanded from his co-
debtors reimbursement of their shares in the obligation. Wilson
tendered payment of P625.51 in accordance with the Ballantyne
Schedule, which Berkenkotter refused to accept. As a result,
Wilson deposited the amount in the Court of First Instance of
Manila and finally brought this action to compel Berkenkotter to
accept the said amount. The question now is — is the Ballantyne
Schedule applicable?
Held: “In several cases involving the application of the
Ballantyne Schedule, this Court has held that said schedule
is applicable to obligations contracted during the Japanese
occupation where said obligations are made payable on demand
or during said Japanese occupation but not after the war or at
a specified date speculating on the continuation or cessation of
the war at the time of payment. If the obligation on the part
of Wilson to pay Berkenkotter the amount paid by the latter
to wipe out their debt to the Bank was created during the
occupation, then the Ballantyne Schedule is applicable, but if
said obligation was created before the war, particularly on the
date when plaintiff and defendant signed the promissory note
in favor of the Bank then the Ballantyne Schedule may not be
applied.
“Counsel for the appellant contends that said obligation
was created in 1938 because by signing the promissory note,
Wilson impliedly undertook to pay anyone of his co-debtors who
might pay off the whole debt. He also claims that by paying the

This doctrine seems to be in direct conflict with the doctrine enunciated in


248

the case of Wilson vs. Berkenkotter that in a case of this sort there is no real case of
subrogation. It is submitted, however, that when the Court held that “the executrix
was subrogated to the rights of the original plaintiff,’’ it was only referring, not to sub-
rogation in its technical sense, but to substitution of parties in its procedural sense.

207
Arts. 1219-1220 OBLIGATIONS

entire loan in 1944 to the Bank, appellant became a subrogee of


said Bank and the entire credit was transmitted to him with all
the rights inherent therein against the debtor or against third
persons. (Art. 1212 — now Art. 1303, Civil Code.)
“We regret to disagree. When appellant paid the entire
loan plus interests in November, 1944, the whole obligation was
extinguished. The solidary co-debtors were no longer under any
obligation to the Bank but a new obligation was created in favor
of the appellant to enforce his claim against the appellee. That
is why the appellant to enforce his claim against the appellee
has based his claim not on the obligation created in 1938 in
favor of the Bank by virtue of the promissory note signed by the
co-debtors, but on his having paid the entire loan. The present
is not a real case of subrogation as contended by appellant
because as Manresa says, in a case like the present the original
obligation is extinguished and a new one is created. In other
words, appellant does not, as claimed by his counsel, step into
the shoes of the Bank. He cannot enforce the original obligation
created in 1938. The Bank could collect the whole amount of the
loan from any one of the solidary co-debtors, and in fact did from
one of them. This, the appellant may not do just because he paid
the entire loan.
“In conclusion, we find and hold that the obligation in
favor of the appellant to pay to him the share of the appellee in
the original loan was created during the Japanese occupation,
particularly in November 1944, and so comes under the ruling of
this Court regarding the application of the Ballantyne Schedule.
Finding no reversible error in the decision appealed from the
same is hereby affirmed. No costs.’’

Art. 1219. The remission made by the creditor of the


share which affects one of the solidary debtors does not
release the latter from his responsibility towards the co-
debtors, in case the debt had been totally paid by anyone of
them before the remission was effected.249
Art. 1220. The remission of the whole obligation,
obtained by one of the solidary debtors, does not entitle him
to reimbursement from his co-debtors.250

249
Art. 1146, Spanish Civil Code, in modified form.
250
New provision.

208
DIFFERENT KINDS OF OBLIGATIONS Art. 1221
Joint and Solidary Obligations

Art. 1221. If the thing has been lost or if the prestation


has become impossible without the fault of the solidary
debtors, the obligation shall be extinguished.
If there was fault on the part of any one of them, all shall
be responsible to the creditor, for the price and the payment
of damages and interest, without prejudice to their action
against the guilty or negligent debtor.
If through a fortuitous event, the thing is lost or the per-
formance has become impossible after one of the solidary
debtors has incurred in delay through the judicial or extra-
judicial demand upon him by the creditor, the provisions of
the preceding paragraph shall apply.251

Effect of Loss or Impossibility of Performance. — The


rules stated in the above articles merely reiterate the rules stated
in Arts. 1174, 1262, and 1266 of the Code. They may be restated as
follows:
(1) If the loss of the thing or the impossibility of complying
with the prestation which constitutes the object of the obligation
is not due to the fault of the solidary debtors, the obligation is
extinguished.
(2) If the loss or impossibility is due to the fault of one of
the solidary debtors, the obligation is converted into an obligation of
indemnity for damages, but the solidary character of the obligation
remains. The creditor can still proceed against one, or some,
or all of the debtors for the payment of the price, plus damages,
without prejudice to the subsequent right of action of the debtor or
debtors who paid to proceed against the guilty or negligent debtor
for reimbursement. This rule may be illustrated by the following
example: A, B, and C bound themselves solidarily to deliver thirty
cavans of rice, valued at P3,000 to X at a specified date. The rice had
already been segregated at the time of the perfection of the contract.
All of the thirty cavans, however were lost through the fault of C.
What are the rights and obligations of the parties? Anyone of the
debtors can, of course, be held liable for the payment of the price
or value of the rice, plus damages. Hence, if X decides to proceed
against A alone, undoubtedly, the latter can be held responsible not

251
Art. 1147, Spanish Civil Code, in modified form.

209
Art. 1222 OBLIGATIONS

only for the price or value of the thirty cavans of rice, but even for
damages. However, once A has settled his obligation to X, he can
then proceed against the guilty debtor, C, for reimbursement of the
entire amount which he has paid to X, plus interest.
(3) If the loss or impossibility is due to a fortuitous event
after one of the debtors had already incurred in delay, again the
obligation is converted into an obligation of indemnity for damages,
but the solidary character of the obligation remains. Anyone, or
some, or all of the debtors can be held responsible for the price, plus
damages but without prejudice to the right of action of the debtor or
debtors who paid to proceed against the debtor responsible for the
delay.

Art. 1222. A solidary debtor may, in actions filed by the


creditor, avail himself of all defenses which are derived from
the nature of the obligation and of those which are personal
to him, or pertain to his own share. With respect to those
which personally belong to the others, he may avail himself
thereof only as regards that part of the debt for which the
latter are responsible.252
Defenses Available to a Solidary Debtor. — The creditor
or creditors may proceed against any of the solidary debtors or
all of them simultaneously for the payment of the obligation, but
whether only one or all of the solidary debtors are sued jointly, any
solidary debtor may interpose against the claim of the creditor or
creditors any of the following defenses: first, defenses derived from
the very nature of the obligation; second, defenses personal to him or
pertaining to his own share; third, defenses personal to the others,
but only as regards that part of the debt for which the latter are
responsible.253
Examples of the first are payment or performance, res judicata,
prescription, those which invalidate the contract such as mistake,
violence, intimidation, undue influence, fraud, and others of a
similar nature.254 Examples of the second are minority, insanity and
other defenses which are purely personal to the debtor. The third,

252
Art. 1148, Spanish Civil Code, in modified form.
253
Art. 1222, Civil Code; Narvaez vs. De Leon, CA, 47 Off. Gaz. 160.
254
Chinese Chamber of Commerce vs. Pua Te Ching, 16 Phil. 405.

210
DIFFERENT KINDS OF OBLIGATIONS Art. 1222
Joint and Solidary Obligations

on the other hand, is merely a partial defense. Thus, if a mother and


her two minor children had signed a promissory note promising to
pay a certain indebtedness jointly and severally, and subsequently,
the creditor proceeds against the mother for the payment of the
entire obligation, undoubtedly, the latter can interpose the defense
of minority of her co-signers, but such defense will benefit her
only with regard to that part of the debt for which the minors are
responsible.255 Similarly, if the creditor has granted to some of the
solidary debtors an extension of time for payment by virtue of a new
contract entered into with such debtors, the debtor against whom the
action for payment of the entire obligation is brought can interpose
the defense of extension of time for payment, but only with regard to
that part of the debt for which the debtors benefited by the extension
are responsible.256

Problem — A, B and C borrowed P12,000 from X on June


1, 1966. They executed a promissory note binding themselves
jointly and severally to pay the obligation on June 1, 1968. For
failure to pay, X brought an action against A for payment of
the entire obligation plus interests. A interposed the following
defenses: (1) that B was only a minor at the time of the
celebration of the contract and that such fact was known to X;
and (2) that X had granted an extension of two years to C within
which to pay.
(1) Can A avail himself of these defenses?
(2) Granting that A can avail himself of these defenses,
what would be the effect upon his liability, assuming that he can
establish both defenses by competent evidence? Reasons.
Answer — (a) A can avail himself of these defenses. Under
Art. 1222 of the Civil Code, there are three kinds of defenses
which are available to a solidary debtor if the creditor proceeds
against him alone for payment of the entire obligation. They
are: first, defenses derived from the nature of the obligation;
second, defenses personal to him or pertaining to his share; and
third, defenses personal to the others, but only as regards that
part of the debt for which the latter are responsible. It is evident
that both defenses interposed by A fall within the purview of the
third.

255
Braganza vs. Villa Abrille, 105 Phil. 456.
256
Inchausti & Co. vs. Yulo, 34 Phil. 978; Narvaez vs. De Leon, CA, 47 Off. Gaz.
160.

211
Art. 1222 OBLIGATIONS

(b) Since A can avail himself of both defenses, and since


such defenses are not absolute but merely partial in character,
undoubtedly, X can collect from A the following: (a) P4,000
corresponding to the share of A in the obligation; and (b) an
amount equivalent to the extent that B had been benefitted by
his share in the obligation, applying the rule enunciated in Art.
1399 regarding the effect if the defect of a contract consists in
the incapacity of one of the contracting parties. As far as the
share corresponding to C is concerned, X must wait for the
expiration of the two years extension which he had given to C
before he can collect such share from A.

Section 5. — Divisible and Indivisible Obligations

Concept. — Obligations may be divisible or indivisible.


Divisible obligations are those which have as their object a prestation
which is susceptible of partial performance without the essence of
the obligation being changed. Indivisible obligations, on the other
hand, are those which have as their object a prestation which is not
susceptible of partial performance, because, otherwise, the essence
of the obligation will be changed.257
Relation to Divisibility or Indivisibility of Things. —
The divisibility of an obligation must not be confused with the
divisibility of the thing or prestation which constitutes the object
of the obligation. The former refers to the performance of the
prestation which constitutes the object of the obligation; the second
refers to the prestation itself. This does not mean, however, that the
divisibility or indivisibility of the object can have no effect upon the
divisibility or indivisibility of the obligation itself. On the contrary,
the divisibility or indivisibility of the object is a very important factor,
probably the most important, in determining whether the prestation
which constitutes the object of the obligation is susceptible of partial
performance or not.258
When is a thing or object divisible or indivisible? According
to Spanish commentators, a thing is indivisible when, if separated
into parts, its essence is changed or its value is decreased dispropor-
tionately. On the other hand, a thing is divisible when, if separated

257
3 Castan, 7th Ed., p. 92.
258
Art. 1225, Civil Code.

212
DIFFERENT KINDS OF OBLIGATIONS Arts 1223-1224
Divisible and Indivisible Obligations

into parts, its essence is not changed or its value is not decreased
disproportionately, because each of the parts into which it is divided
are homogenous and analogous to each other as well as to the thing
itself. Hence, it is an essential condition, in order that a thing shall
be considered divisible, that it must be possible to reconstruct the
thing itself into its condition prior to the division by uniting the dif-
ferent parts into which it had been divided. There are three kinds of
division. They are quantitative, qualitative and ideal or intellectual.
The division is quantitative when the thing can be materially di-
vided into parts and such parts are homogenous to each other, such
as when the parts are actually separated from each other as in the
case of movables, or when the limits of the parts are fixed by metes
and bounds as in the case of immovables. The division is qualita-
tive when the thing can be materially divided, but the parts are not
exactly homogenous, such as in the partition of an inheritance. The
division is ideal or intellectual when the thing can only be separated
into ideal or undivided parts, not material parts, as in the case of
co-ownership.259

Art. 1223. The divisibility or indivisibility of the things


that are the object of obligations in which there is only one
debtor and only one creditor does not alter or modify the
provisions of Chapter 2 of this Title.260
Art. 1224. A joint indivisible obligation gives rise to
indemnity for damages from the time anyone of the debtors
does not comply with his undertaking. The debtors who may
have been ready to fulfill their promises shall not contribute
to the indemnity beyond the corresponding portion of the
price of the thing or of the value of the service in which the
obligation consists.261

Effect of Divisible or Indivisible Obligations. — Where


there is only one creditor and only one debtor, the divisibility or
indivisibility of the obligation is of little significance as implied
by Art. 1223. As a general rule, the creditor cannot be compelled
partially to receive the prestation in which the obligation consists;

259
4 Sanchez Roman 93-94.
260
Art. 1149, Spanish Civil Code.
261
Art. 1150, Spanish Civil Code.

213
Art. 1225 OBLIGATIONS

neither may the debtor be required to make partial payments.262


There are, however, three exceptions to this rule. These are: first,
when the obligation expressly stipulates the contrary, second, when
the different prestations constituting the objects of the obligation
are subject to different terms and conditions; and third, when the
obligation is in part liquidated and in part unliquidated.263
Where there is a plurality of debtors and creditors, the effect of
the divisible or indivisible character of the obligation shall depend
upon whether the obligation is joint or solidary. If it is solidary, the
provisions of Art. 1211 to Art. 1222 are applicable; if it is joint and at
the same time divisible, the provision of Art. 1208 is applicable; and
if it is joint and at the same time indivisible, the provisions of Arts.
1209 and 1224 are applicable.
Idem; Breach of joint indivisible obligations. — In
joint indivisible obligations, such as the delivery of a horse or an
automobile, the obligation can be enforced only by proceeding against
all of the debtors.264 If anyone of the debtors should fail or refuse
to comply with the obligation, it is converted into one of indemnity
for damages.265 However, the debtors who may have been ready to
comply with what is incumbent upon them shall not contribute to
the indemnity beyond the corresponding portion of the price of the
thing or of the value of the service in which the obligation consists.
The debtor who failed or refused to comply with his obligation shall
bear the burden of paying all of the damages suffered by the creditor
or creditors as a result of the nonfulfillment of the obligation. If the
other debtors also suffered damages as a result of the transformation
of the obligation into one of indemnity, they may also recover such
damages from the debtor who was at fault.266

Art. 1225. For the purposes of the preceding articles,


obligations to give definite things and those which are not
susceptible of partial performance shall be deemed to be
indivisible.

262
Art. 1248, Civil Code.
263
Ibid., 8 Manresa, 5th Ed., Bk. 1, pp. 363-365.
264
See Art. 1209, Civil Code.
265
Art. 1224, Civil Code.
266
8 Manresa, 5th Ed., Bk. 1, p. 469; 3 Castan, 7th Ed., p. 92.

214
DIFFERENT KINDS OF OBLIGATIONS Art 1225
Divisible and Indivisible Obligations

When the obligation has for its object the execution of a


certain number of days of work, the accomplishment of work
by metrical units, or analogous things which by their nature
are susceptible of partial performance, it shall be divisible.
However, even though the object or service may be
physically divisible, an obligation is indivisible if so provided
by law or intended by the parties.
In obligations not to do, divisibility or indivisibility
shall be determined by the character of the prestation in
each particular case.267

Determination of Divisibility or Indivisibility. — If the pr-


estation which constitutes the object of the obligation is susceptible
of partial compliance, the obligation is divisible; if it is not suscepti-
ble of partial compliance, the obligation is indivisible. Consequently,
the true test of divisibility is whether the obligation is susceptible of
partial compliance or not. This is clear from the provision of the first
paragraph of Art. 1225. In the words of Sanchez Roman, the pivotal
fact is the possibility or impossibility of partial prestation.268 This
susceptibility of partial compliance should be understood, not in the
sense of the possibility or impossibility of the delivery of a thing or
of the performance of an act in separate parts, but in the sense of
the possibility of realizing the end or purpose which the obligation
seeks to attain. Hence, the purpose of the obligation is the control-
ling circumstance. This applies not only to obligations to give, but
also to obligations to do or not to do.269
Idem; In obligations to give. — It is in obligations to give
that the divisible or indivisible nature of the thing which consti-
tutes the object of the obligation is the most important factor to be
considered in determining whether the obligation is susceptible of
partial compliance or not. This is clear from the provisions of the
first and third paragraphs of Art. 1225.
If the obligation is to give something which is definite or
which by its very nature is indivisible, it is evident that it is not
susceptible of partial compliance. Hence, it shall be deemed to be

267
Art. 1151, Spanish Civil Code, in modified form.
268
4 Sanchez Roman 95.
269
Ibid.

215
Art. 1225 OBLIGATIONS

indivisible.270 This rule is absolute in character. While it is true


that the divisibility or indivisibility of the thing which constitutes
the object of the obligation is not the ultimate test which we must
apply in order to determine whether the obligation is divisible or
indivisible, nevertheless, it is also true that when such object is by
its very nature indivisible, as in the case of a chair or a horse, the
obligation is necessarily indivisible.
However, if the obligation is to give something which by its
nature is divisible, the general rule is that the obligation is also
divisible since it is evidently susceptible of partial compliance. Thus,
it has been held that an obligation to give or to do several things
at several times is divisible. This rule is not absolute in character,
because by express provision of the Code “even though the object
may be physically divisible, the obligation is considered indivisible
if it is so provided by the law or it is so intended by the parties.”271
With respect to the second exception, the intention of the parties
that the obligation is indivisible in character may be either express
or implied. In the latter case, it may be inferred or presumed
either: (1) from the fact that, although the object of the obligation
can be separated into parts, yet each part constitutes a necessary
complement of the other parts; or (2) from the very purpose of the
obligation itself which requires the delivery of all the parts.272
Idem; In obligations to do. — In obligations to do, if the
obligation is to perform some prestation or service which by its very
nature is not susceptible of partial performance, it shall be deemed
indivisible.273 This rule is absolute in character. If the obligation
is to perform some prestation or service which by its very nature
is susceptible of partial performance, the general rule is that it is
divisible. Certain qualifications, however, must be made.
In the first place, in order to determine whether an obligation
to do is divisible or indivisible, the object or purpose of the obliga-
tion must always be considered. This is evident from the provision
of the second paragraph of Art. 1225. According to this provision —
the obligation shall be considered divisible when it has for its object:
(1) the execution of a certain number of days of work; or (2) the

270
Art. 1225, par. 1, Civil Code.
271
Art. 1225, par. 3, Civil Code.
272
8 Manresa, 5th Ed., Bk. 1, pp. 472-473.
273
Art. 1225, par. 1, Civil Code.

216
DIFFERENT KINDS OF OBLIGATIONS Art 1225
Obligations with a Penal Clause

accomplishment of work by metrical units; or (3) the accomplishment


of analogous things which by their nature are susceptible of partial
performance.
In the second place, although it is true that if the obligation has
for its object a prestation or service which is susceptible of partial
performance it is, as a rule, divisible, yet it may still be indivisible
if so provided by law or intended by the parties.274 This intention of
the parties may either be express or implied. Thus, where a certain
contractor obligates himself to construct several apartment buildings
within a certain compound, there is no doubt that the prestation is
susceptible of partial performance. However, if it is the express or
presumed intention of the parties to the contract that the obligation
is indivisible, all of the apartment buildings must be constructed in
order that the obligation can be considered as performed.
Idem; In obligations not to do. — With respect to obligations
not to do, whether it is divisible or indivisible shall depend upon the
character of the prestation in each particular case.275 Therefore, the
determination of the character of the obligation will depend upon
the sound discretion of the court.

Section 6. — Obligations with a Penal Clause

Concept. — An obligation with a penal clause may be defined


as one to which an accessory undertaking is attached for the purpose
of insuring its performance by virtue of which the obligor is bound
to pay a stipulated indemnity or perform a stipulated prestation
in case of breach. From this definition it is clear that the penal
clause or penalty is an accessory obligation attached to the principal
obligation by virtue of which the obligor is bound to pay a stipulated
indemnity or to perform a stipulated prestation in case of breach of
the obligation.276
Purpose of Penalty. — The penal clause or penalty has a
three-fold purpose. They are:
(1) Función coercitiva o de garantia — to insure the perfor-
mance of the obligation;

274
Art. 1225, par. 3, Civil Code.
275
Art. 1225, par. 4, Civil Code.
276
3 Castan, 7th Ed., p. 97; 8 Manresa, 5th Ed., Bk. 1, pp. 477-478.

217
Art. 1226 OBLIGATIONS

(2) Función liquidatoria — to liquidate the amount of


damages to be awarded to the injured party in case of breach of the
principal obligation; and
(3) Función estrictamente penal — in certain exceptional
cases, to punish the obligor in case of breach of the principal obliga-
tion.277
It is evident that the second is compensatory, while the third
is punitive in character; the first, on the other hand, is the general
purpose regardless of whether the penalty is compensatory or
punitive.
Kinds of Penalty. — Penalties may be classified as follows:
(1) As to origin — Legal or conventional. It is legal when it
is constituted by law; it is conventional when it is constituted by
agreement of the parties.
(2) As to purpose — Compensatory or punitive. It is compen-
satory when it is established for the purpose of indemnifying the
damages suffered by the obligee or creditor in case of breach of the
obligation; it is punitive when it is established for the purpose of
punishing the obligor or debtor in case of breach of the obligation.
(3) As to effect — Subsidiary or joint. It is subsidiary when
only the penalty may be demanded in case of breach of the obligation;
it is joint when the injured party may demand the enforcement of
both the penalty and the principal obligation.

Art. 1226. In obligations with a penal clause, the penalty


shall substitute the indemnity for damages and the payment
of interests in case of noncompliance, if there is no stipulation
to the contrary. Nevertheless, damages shall be paid if the
obligor refuses to pay the penalty or is guilty of fraud in the
fulfillment of the obligation.
The penalty may be enforced only when it is demandable
in accordance with the provisions of this Code.278

277
3 Castan, 7th Ed., pp. 100-101.
278
Art. 1152, Spanish Civil Code, in modified form.

218
DIFFERENT KINDS OF OBLIGATIONS Art 1226
Obligations with a Penal Clause

Effect of Penalty, General Rule. — As previously stated,


the penal clause may be considered either as reparation or substi-
tute for damages or as a punishment in case of breach of the obliga-
tion. Considered as a reparation or compensation, the question of
damages is resolved once and for all, since the stipulated indemnity
or prestation represents a legitimate estimate made by the contract-
ing parties of the damages caused by the nonfulfillment or breach of
the obligation. Consequently, proof of actual damages is not neces-
sary in order that the stipulated penalty may be demanded. Con-
sidered strictly as a punishment, the question of damages is not yet
resolved. Consequently, the right to damages, besides the penalty,
still subsists. Therefore, if the injured party desires to recover the
damages actually suffered by him in addition to the penalty, he
must prove such damages.279
As a general rule, the penalty is fixed by the contracting parties
as a compensation or substitute for damages in case of breach of the
obligation. This is evident from the provision of the first paragraph of
Art. 1226. It is, therefore, clear that the penalty in its compensatory
aspect is the general rule, while the penalty in its strictly penal
aspect is the exception. Thus, if the parties to a contract of sale
payable in several installments agree that should the vendee fail
to pay the amount corresponding to each installment in due time,
the vendor may rescind the contract and at the same time keep the
amount already paid, it is clear that such an agreement has for its
purpose not only to insure the performance of the obligation, but
also to measure beforehand the damages which would result from
noncompliance. At any rate the penal clause does away with the
duty to prove the existence and measure of the damages caused by
the breach.280

Manila Racing Club vs. Manila Jockey Club


69 Phil. 55

The records show that the parties entered into a contract


of sale of a parcel of land for P1,200,000, payable in five
installments. It was agreed that should the vendee fail to pay

279
8 Manresa, 5th Ed., Bk. 1, pp. 480-481.
280
Manila Racing Club vs. Manila Jockey Club, 69 Phil. 55. For other cases il-
lustrating the general rule — see Palacios vs. Mun. of Cavite, 12 Phil. 140; Navarro
vs. Mallari, 45 Phil. 242; Araneta vs. Paterno, 49 Off. Gaz. 45.

219
Art. 1226 OBLIGATIONS

the amount corresponding to each installment in due time, the


vendor may rescind the contract and keep the amount paid. The
vendee was able to pay only the first two installments amounting
to P100,000. As a result, the vendor rescinded the contract. This
action now is brought by the vendee against the vendor for the
purpose of recovering the forfeited amount on the ground that
the agreement is contrary to law, morals and public order.
Held: “The clause of the contract referring to the forfeiture
of the P100,000 already paid, should the purchaser fall to pay
the subsequent installments, is valid. It is in the nature of a
penal clause which may be legally established by the parties
(Articles 1152 and 1255 — now Arts. 1226 and 1306, Civil Code.)
In its double purpose of insuring compliance with the contract
and of otherwise measuring beforehand the damages which
result from noncompliance, it is not contrary to law, morals or
public order because it was voluntarily and knowingly agreed
upon by the parties. Viewing concretely the true effects thereof
in the present case, the amount forfeited constitutes only
eight per cent of the stipulated price, which is not excessive if
considered as the profit which would have been obtained had
the contract been complied with. There is, moreover, evidence
that the defendants, because of this contract, had to reject
other propositions to buy the same property. At any rate, the
penal clause does away with the duty to prove the existence and
measure of the damages caused by the breach.

Caridad Estate vs. Santero


71 Phil. 114

This action is brought by the vendor against the vendee


for the recovery of the property sold because of the failure to pay
the stipulated installments in due time. In the contract of sale, it
was agreed that should the vendee fail to pay the installments in
due time, the vendor shall have the right to rescind the contract
and at the same time keep any and all sums already paid. It is
now contended by the vendee that such a stipulation constitutes
a pactum commissorium, which is prohibited by what is now
Art. 2088 of the New Civil Code.
Held: “Taking up the argument that the stipulation has
resulted in pactum commissorium, we are of the opinion that the
objection is without legal basis. Historically and in point of strict
law, pactum commissorium, referred to in Articles 1859 and 1884
(now Arts. 2088 and 2137) of the Civil Code, presupposes the
existence of mortgage or pledge or that of antichresis. (Alcantara

220
DIFFERENT KINDS OF OBLIGATIONS Art 1226
Obligations with a Penal Clause

vs. Alinea, 8 Phil. 111.) Upon this account, it becomes hardly


conceivable, although the argument has been employed here
rather extravagantly, that the idea of pactum commissorium
should occur in the present contract of sale, considering that, it
is admitted, that the person to whom the property is forfeited is
the real and equitable owner of the same because the title would
not pass until payment of the last installment. At most, the
provision in point, as the parties themselves have indicated in
the contract, is a penal clause which carries the express waiver
of the vendee to any and all sums he had paid when the vendor,
upon his inability to comply with his duty, seeks to recover
possession of the property, as conclusive recognition of the right
of the vendor to said sums, and avoids unnecessary litigation
designated to enforce fulfillment of the terms and conditions
agreed upon. Said provisions are not unjust or inequitable and
does not, as appellant contends, make the vendor unduly rich at
his cost and expense.’’

Idem; Exceptions. — There are three exceptions to the


rule that the penalty shall substitute the indemnity for damages
and the payment of interests in case of noncompliance with the
principal obligation. They are: first, when there is a stipulation to
the contrary, second, when the obligor is sued for refusal to pay the
agreed penalty; and third, when the obligor is guilty of fraud.281 In
all of these cases, it is evident that the purpose of the penalty is to
punish the obligor. Consequently, the obligee can recover from him
not only the penalty, but also the damages or interests resulting
from the breach of the principal obligation.282

Bachrach Motor Co. vs. Espiritu


52 Phil. 346

These two cases were tried together. The first case


involves an action brought by the plaintiff corporation for the
recovery of P10,477.82 from the defendant which is the unpaid
balance of the purchase price of a two-ton White truck which
the latter had bought from the former. In addition, the said
plaintiff corporation also asks for 12 per cent of the said amount

281
Art. 1226, par. 1, Civil Code.
282
Bachrach Motor Co. vs. Espiritu, 52 Phil. 346; Government vs. Lim, 61 Phil.
737; Luneta Motor Co. vs. Moral 73 Phil. 80; Cabarroguis vs. Vicente, 107 Phil. 340;
De Venecia vs. del Rosario, 18 SCRA 792.

221
Art. 1226 OBLIGATIONS

as stipulated interest and 25 per cent thereon as stipulated


penalty. The second case involves a second action brought by
the plaintiff corporation for the recovery of P4,208.28 from the
same defendant which is the unpaid balance of the purchase
price of a one-ton truck of the same make as the first which
the latter had bought from the former. In addition, the said
plaintiff corporation also asks for 12 per cent of the said amount
as stipulated interest and 25 per cent thereon as penalty. The
basis of the action in each case is a contract of sale wherein the
parties agreed that 12 per cent interest would be paid upon the
unpaid portion of the price at the execution of the contracts, and
in case of nonpayment of the total debt upon its maturity, 25 per
cent thereon, as penalty. The lower court which tried the cases
together rendered judgments in plaintiff’s favor in accordance
with the contracts. From these judgments, defendant appealed
to the Supreme Court. He contends that the 25 per cent penalty
upon the debt, in addition to the interest of 12 per cent per
annum, would make the contract usurious.
Held: “Such a contention is not well founded. Article
1152 (now Art. 1226) of the Civil Code permits the agreement
upon a penalty apart from the interest. Should there be such
an agreement, the penalty, as was held in the case of Lopez vs.
Hernaez (32 Phil. 631), does not include the interest and as such
the two are different and distinct things which may be demanded
separately. According to this, it is not to be added to the interest
for the determination of whether the interest exceeds the rate
fixed by the law, since said rate was only fixed for the interest.
But considering that the obligation was partly performed, and
making use of the power given to the court by Article 1154 (now
Art. 1229) of the Civil Code, this penalty is reduced to 10 per
cent of the unpaid debt.’’

Cabarroguis and Cabarroguis vs. Vicente


107 Phil. 340
Telesforo B. Vicente, owner and operator of the jeepney
on which plaintiff, Antonia A. Cabarroguis, was a passenger
entered into a compromise agreement with plaintiff obligating
himself to pay to her the sum of P2,500 as damages for the
physical injuries sustained by her when the said jeepney
on which plaintiff was a passenger hit another vehicle. An
additional amount of P200 was provided as liquidated damages
in the agreement in case defendant fails to complete payment
within 60 days. A balance of P1,000 of the amount was left
unpaid and as defendant failed, and, notwithstanding repeated

222
DIFFERENT KINDS OF OBLIGATIONS Art 1226
Obligations with a Penal Clause

demands, refused to comply with his obligation, plaintiff,


assisted by her husband, brought suit in the Municipal Court
which rendered, after hearing, a judgment in plaintiffs favor.
On appeal the Court of First Instance sentenced defendant to
pay to plaintiff the amount of P1,200 with interest at legal rate
from the date of the filing of the complaint until full payment.
Hence, this appeal. Is the decision correct?
Held: In obligations with a penal clause, the penalty
shall substitute the indemnity for damages and the payment
of interest, except when the contrary is stipulated; or when the
obligor refuses to pay the penalty; or when the obligor is guilty
of fraud in the fulfillment of the obligation. (Art. 1226, Civil
Code.) Applying the law it is evident that no interest can be
awarded on the principal obligation, the penalty of P200 agreed
upon having taken the place of the payment of such interest and
the indemnity for damages, the case not falling under any of the
exceptions.
The case, however, takes a different aspect with respect
to the penalty attached to the principal obligation. It has been
held that in obligations for the payment of a sum of money
when a penalty is stipulated for default, both the principal
obligation and the penalty can be demanded by the creditor.
(Government vs. Lim, et al., 61 Phil. 737; Luneta Motor Co.
vs. Moral, 73 Phil. 80.) Defendant having refused to pay when
demand was made by plaintiff, the latter clearly is entitled to
interest on the amount of the penalty. Art. 2210 of the new Civil
Code also provides that in the discretion of the court, interest
may be allowed upon damages awarded for breach of contract.
This interest is recoverable from the time of delay, i.e., from the
date of demand, either judicial or extrajudicial. There being no
showing as to when demand for payment was made, plaintiff
must be considered to have made such only from the filing of the
complaint.
Decision modified in the sense that interest shall be al-
lowed only on the amount of the penalty.

Idem; Enforceability of penalty. — According to the second


paragraph of Art. 1226, the penalty may be enforced only when it
is demandable in accordance with the provisions of the Civil Code.
Consequently, upon the breach or nonfulfillment of the principal
obligation by the obligor or debtor, the penalty stipulated becomes
demandable, provided that it is not contrary to law, morals, good

223
Art. 1227 OBLIGATIONS

customs, public order or public policy.283 However, where both of


the contracting parties are unable to comply with their respective
obligations, although the breach is not willful or culpable, such as
when it is due to a fortuitous event, since the law must work both
ways, the penal clause cannot, as a consequence, be invoked by
anyone of them to the prejudice of the other.284

Art. 1227. The debtor cannot exempt himself from the


performance of the obligation by paying the penalty, save
in the case where this right has been expressly reserved
for him. Neither can the creditor demand the fulfillment
of the obligation and the satisfaction of the penalty at the
same time, unless this right has been clearly granted him.
However, if after the creditor has decided to require the
fulfillment of the obligation, the performance thereof should
become impossible without his fault, the penalty may be
enforced.285

Limitation upon Right of Debtor. — The debtor cannot


exempt himself from the performance of the principal obligation by
paying the stipulated penalty. There is, however, an exception to
this rule and that is when the right has been expressly reserved for
him.286
Limitation upon Right of Creditor. — On the other
hand, the creditor cannot demand the fulfillment of the principal
obligation and the satisfaction of the stipulated penalty at the same
time, unless this right has been clearly granted to him.287
If the principal obligation is not complied with, the creditor
can choose between demanding the fulfillment of the obligation and
demanding the satisfaction of the penalty. He cannot, however,
demand both at the same time. If he chooses to demand the fulfillment
of the obligation, and the performance thereof should become

283
Yu Tek & Co. vs. Gonzales, 29 Phil. 384; Ibarra vs. Aveyro, 37 Phil. 273;
Bachrach vs. Golingco, 39 Phil. 138; Manila Racing Club vs. Manila Jockey Club, 69
Phil. 55.
284
Reyes vs. Formoso, CA, 46 Off. Gaz. 5621.
285
Art. 1153, Spanish Civil Code, in modified form.
286
Art. 1227, Civil Code.
287
Ibid.

224
DIFFERENT KINDS OF OBLIGATIONS Art 1228
Obligations with a Penal Clause

impossible without his fault, he may still demand the satisfaction


of the penalty.288 If there was fault on the part of the debtor, he
may demand not only the satisfaction of the penalty, but also the
payment of damages.289 If he chooses to demand the satisfaction
of the penalty, he cannot afterwards demand the fulfillment of the
obligation.
It will be observed that under the first sentence of the article,
in order that the debtor can exempt himself from the performance
of the obligation by paying the penalty, the right must be expressly
reserved for him. Under the second sentence, however, in order that
the creditor can demand the fulfillment of the obligation and the
satisfaction of the penalty at the same time, the right must be clearly
granted to him. From this, it can be inferred that a tacit or implied
grant is admissible under the second.

Art. 1228. Proof of actual damages suffered by the cred-


itor is not necessary in order that the penalty may be de-
manded.290
Proof of Actual Damages. — The above provision is appli-
cable only to the general rule stated in Art. 1226 and not to the
exceptions. Consequently, if the penalty is fixed by the contracting
parties for the purpose of compensating or substituting the indem-
nity for damages and the payment of interests, proof of actual dam-
ages suffered by the obligee or creditor is not necessary in order that
the penalty may be demanded. Hence, in this sense, the penalty is
exactly identical with what is known as “liquidated damages’’ under
Art. 2226 of the Civil Code. However, if there is stipulation to the
contrary, or if the obligor or debtor is sued for refusal to pay the
agreed penalty, or if the obligor or debtor is guilty of fraud, then
the obligee or creditor can demand not only the satisfaction of the
agreed penalty, but even damages. In such case, in order to be able
to recover such damages in addition to the penalty, he must prove
the amount of damages which he had actually suffered.

288
Ibid.
289
Art. 1226, 2nd sentence, Civil Code.
290
New provision.

225
Art. 1229 OBLIGATIONS

Lambert vs. Fox


26 Phil. 558

Plaintiff and defendant, majority stockholders of a


certain corporation, entered into a contract by virtue of which
it was agreed that should either party dispose of his holdings
in the company to anybody within one year from the time of
the signing of the contract, he shall pay P1,000 as liquidated
damages. For breach of the agreement, plaintiff commenced this
action in order to collect P1,000 from the defendant. The latter
now contends that since plaintiff is unable to prove damages
suffered by him, he cannot be compelled to pay.
Held: “In this jurisdiction, there is no difference between
a penalty and liquidated damages, as far as legal results are
concerned. Whatever difference exists between them as a matter
of language, they are treated the same legally. In either case
the party to whom payment is to be made is entitled to recover
the sum stipulated without the necessity of proving damages.
Indeed one of the primary purposes in fixing a penalty or in
liquidating damages, is to avoid such necessity.’’291

Art. 1229. The judge shall equitably reduce the penalty


when the principal obligation has been partly or irregularly
complied with by the debtor. Even if there has been no
performance, the penalty may also be reduced by the courts
if it is iniquitous or unconscionable.292

When Penalty May Be Reduced. — Under Art. 1229, the


court may equitably reduce the stipulated penalty in the following
instances: first, if the principal obligation has been partly complied
with; second, if the principal obligation has been irregularly complied
with; and third, if the penalty is iniquitous or unconscionable even if
there has been no performance.
The first contemplates a case in which some, but not all, of
the prestations are complied with by the debtor, while the second
contemplates a case in which all of the prestations are complied
with, but not in accordance with the tenor of the agreement. Hence,

291
To the same effect: Palacios vs. Mun. of Cavite, 12 Phil. 140; Manila Racing
Club vs. Manila Jockey Club, 69 Phil. 55. See Arts. 2226, et seq., for “liquidated dam-
ages.’’
292
Art. 1154, Spanish Civil Code, in amended form.

226
DIFFERENT KINDS OF OBLIGATIONS Art 1229
Obligations with a Penal Clause

the first refers to the quantity or quality of the performance, while


the second refers to the form.293 Thus, the Supreme Court, in the
case of Jison vs. CA (164 SCRA 346), it held that in obligations with
a penal clause, the judge shall equitably reduce the penalty when
the principal obligation has been partly or irregularly complied with
by the debtor. (Art. 1229; Hodges v. Javellana, G.R. No. L-17247,
April 28, 1962, 4 SCRA 1228.) In this connection, the Court said:
“It follows that, in any case wherein there has been a partial or
irregular compliance with the provisions in a contract for special
indemnification in the event of failure to comply with its terms, courts
will rigidly apply the doctrine of strict construction and against the
enforcement in its entirety of the indemnification, where it is clear
from the terms of the contract that the amount or character of the
indemnity is fixed without regard to the probable damages which
might be anticipated as a result of a breach of the terms of the contract
or, in other words, when the indemnity provided for is essentially
a mere penalty having for its principal object the enforcement of
compliance with the contract . . . (Laureano vs. Kilayco, 32 Phil.
194 [1915].) This principle was reiterated in Makati Development
Corp. vs. Empire Insurance Co. (G.R. No. L-21780, June 30, 1967,
20 SCRA 557) where the Court affirmed the judgment of the Court
of First Instance reducing the subdivision lot buyer’s liability from
the stipulated P12,000.00 to P1,500.00 after finding that he had
partially performed his obligation to complete at least fifty percent
(50%) of his house within two (2) years from March 31, 1961, fifty
percent (50%) of the house having been completed by the end of April
1961. The third, on the other hand, contemplates a case in which the
only question raised is whether the amount of the stipulated penalty
is reasonable or unconscionable. Hence, the obligor may ask for the
reduction of the penalty, even if there has been no performance of
the principal obligation. It must be noted that this ground was not
found in the former Code. However, it has always been recognized
by the Supreme Court as a separate ground for the reduction of
the stipulated penalty by the courts. Thus, it has been held that
while the parties are free to stipulate a particular amount which
the debtor must pay by way of attorney’s fees and costs in case of
non-fulfillment of the obligation, it is within the sound discretion of

293
8 Manresa, 5th Ed., Bk. 1, p. 491; see Laureano vs. Kilayco, 32 Phil. 850; Chua
Gui Seng vs. Gen. Sales Supply Co., 91 Phil. 153; Ramos vs. Salcedo, CA, 48 Off. Gaz.
729.

227
Art. 1229 OBLIGATIONS

the court to determine whether the amount should be reduced or not


depending upon whether it is excessive or reasonable.294 As a matter
of fact, it has been held that the amount stipulated may be reduced
even if it is not contrary to law, morals, good customs, public order,
or public policy,295 provided it is unreasonable or unconscionable.

Question — Can the Court delete the penalty clause?


Answer — Yes. The stipulated penalty can be deleted in
cases such as when there has been substantial performance in
good faith by the obligor (Art. 1234, NCC.), when the penalty
clause itself suffers from fatal infirmity, or when exceptional
circumstances so exists as to warrant it. (Garcia vs. CA, 167
SCRA 815; Palmares vs. CA, 288 SCRA 423; Ibarra vs. Aveyro,
37 Phil. 278; Ligutan vs. CA, et al., G.R. No. 138677, Feb. 12,
2002.)

Umali vs. Miclat


105 Phil. 1007

The records show that defendant Umali, president and


general manager of Maharlika Pictures, Inc., had executed a
contract by which he agreed to pay a certain amount to plaintiff
Miclat for services rendered by the latter. In the contract, it
is expressly stipulated that if defendant should fail to pay the
amount after the lapse of 30 days, he shall pay a subcharge of
10% for every 30 days of default until the amount has been fully
paid. Because of failure of the defendant to pay the amount
within the period stipulated, plaintiff brought this action to
recover the amount, plus the penalty and damages. After
trial, the lower court rendered judgment ordering defendant
to pay the amount, plus 10% subcharge for every 30 days of
default, and 6% interest per annum from the date of the filing
of the complaint as damages. Defendant now claims that the
subcharge of 10% for every 30 days of default is unconscionable
because it is tantamount to imposing an interest of 10% a month
and, therefore, should be reduced, and that the award of 6%
interest per annum by way of damages is contrary to law, since
according to Art. 1226 of the Civil Code, the penalty shall be a
substitute for damages or interests.

294
Manila Trading Co. vs. Tamarao Plantation Co., 47 Phil. 513; Tan Tua Sia vs.
Yu Biao, 56 Phil. 707; Turner vs. Casabar, 65 Phil. 490.
295
Bachrach vs. Golingco, 39 Phil. 138.

228
DIFFERENT KINDS OF OBLIGATIONS Art 1230
Obligations with a Penal Clause

Held: “There is merit in the contention that the surcharge


is unconscionable. While this subcharge partakes of the nature
of a penal clause which the parties may stipulate under the
law, however, one cannot deny that the same is unconscionable.
Making use of the discretion that the law grants this Court on
the matter (Art. 1229, Civil Code), a subcharge of 20% per annum
would be reasonable. On the other hand the contention that the
portion of the decision which orders the payment of 6% interest is
contrary to law on the ground that defendant is already ordered
to pay the penalty agreed upon is untenable. Under Art. 1226 of
the new Civil Code, the penalty takes the place of interest only
if there is no stipulation to the contrary, and even then damages
may still be collected if the obligor refuses to pay the penalty. In
this case not only is there an express stipulation to pay damages
in addition to the penalty, but defendant has failed to pay his
obligation as well as the penalty. The imposition of the interest
is, therefore, justified.”

Art. 1230. The nullity of the penal clause does not carry
with it that of the principal obligation.
The nullity of the principal obligation carries with it
that of the penal clause.296

Nullity of Obligation or Penalty; Effect. — If the principal


obligation is void, it necessarily follows that the penal clause shall
also be void.297 This rule is, of course, logical considering the fact
that the penalty is merely an accessory obligation. However, if the
penal clause is void, the validity of the principal obligation is not
affected,298 since the efficacy of such obligation is not dependent
upon the efficacy of the penal clause.

296
Art. 1155, Spanish Civil Code.
297
Art. 1230, Civil Code.
298
Ibid.

229
OBLIGATIONS

CHAPTER 4

EXTINGUISHMENT OF OBLIGATIONS

General Provisions

Art. 1231. Obligations are extinguished:


(1) By payment or performance;
(2) By the loss of the thing due;
(3) By the condonation or remission of the debt;
(4) By the confusion or merger of the rights of creditor
and debtor;
(5) By compensation;
(6) By novation.
Other causes of extinguishment of obligations, such as
annulment, rescission, fulfillment of a resolutory condition
and prescription, are governed elsewhere in this Code.1
Modes of Extinguishing Obligations. — There are ten
modes of extinguishing obligations enumerated in the above article.
This enumeration, however, is not complete. There are others, such
as: (1) renunciation or waiver by the obligee or creditor; (2) compro-
mise; (3) expiration of the resolutory term or period; (4) death of
one of the contracting parties in purely personal obligations; (5) the
will of one of the contracting parties in certain contracts; or (6) the
agreement of both contracting parties or what is sometimes known
as mutual assent or dissent.2

1
Art. 1156, Spanish Civil Code, in modified form.
2
8 Manresa, 5th Ed., Bk. 1, pp. 501-503; 3 Castan, 7th Ed., pp. 235-236.

230
EXTINGUISHMENT OF OBLIGATIONS Arts. 232-1235
Payment or Performance

Section 1. — Payment or Performance

Art. 1232. Payment means not only the delivery of mon-


ey but also the performance, in any other manner, of an obli-
gation.3
Concept of Payment or Performance. — Historically, the
term payment has three different acceptations. In its broadest sense,
it consists in the fulfillment of the obligation either voluntarily
or involuntarily, including its extinguishment by any means or
mode whatsoever; in its limited sense, it consists in the normal
and voluntary fulfillment of the obligation by the realization of the
purposes for which it was constituted; in its more limited sense, it
consists in the fulfillment of the obligation by the delivery of a sum
of money.4 The Civil Code has adopted the second. Hence, payment,
as it is understood in the Civil Code, means not only the delivery
of money but also the performance, in any other manner, of an
obligation.5

Art. 1233. A debt shall not be understood to have been


paid unless the thing or service in which the obligation
consists has been completely delivered or rendered, as the
case may be.6
Art. 1234. If the obligation has been substantially per-
formed in good faith, the obligor may recover as though
there had been a strict and complete fulfillment, less dam-
ages suffered by the obligee.7
Art. 1235. When the obligee accepts the performance,
knowing its incompleteness or irregularity, and without
expressing any protest or objection, the obligation is deemed
fully complied with.8

When Obligation Is Understood Paid or Performed. — As


a consequence of the rule stated in Art. 1233, an obligation to give

3
New provision.
4
3 Castan, 7th Ed., p. 236.
5
Art. 1232, Civil Code.
6
Art. 1157, Spanish Civil Code.
7
New provision.
8
New provision.

231
Art. 1236 OBLIGATIONS

shall be understood to have been paid when the debtor or obligor


has completely delivered the thing which he had obligated himself
to deliver; an obligation to do shall be understood to have been
performed when the obligor has completely rendered the service
which he had obligated himself to render; an obligation not to do
shall be understood to have been complied with when the obligor has
completely refrained from doing that which he had obligated himself
not to do.
The above rule, however, is not absolute in character. It is
subject to the following exceptions:
(1) When the obligation has been substantially performed in
good faith.9 In this case, the obligor may recover as though there has
been a strict and complete fulfillment, less damages suffered by the
obligee.10 The fairness of this rule is evident. In case of substantial
performance, the obligee is benefited. So the obligor should be allowed
to recover as if there has been a strict and complete fulfillment, less
damages suffered by the obligee. This last condition affords a just
compensation for the relative breach committed by the obligor.11
(2) When the obligee accepts the performance, knowing its
incompleteness or irregularity, and without expressing any protest
or objection.12 This rule is based on the principle of estoppel.
There is another instance when an obligation is considered by
some to have been paid and that is when the obligation to give, to do
or not to do is converted into an obligation to indemnify the obligee
or creditor because of breach or nonfulfillment and the indemnity is
finally paid in full.13 Strictly speaking, however, this case falls under
the general rule stated in Art. 1233.

Art. 1236. The creditor is not bound to accept payment


or performance by a third person who has no interest in the
fulfillment of the obligation, unless there is stipulation to the
contrary.

9
Art. 1234, Civil Code.
10
Ibid.
11
Report of the Code Commission, p. 131.
12
Art. 1235, Civil Code; Joe’s Radio & Electrical Supply vs. Alto Electronics
Corp., 104 Phil. 333.
13
3 Capistrano, Civil Code, 1950 Ed., p. 167.

232
EXTINGUISHMENT OF OBLIGATIONS Arts. 1237-1238
Payment or Performance

Whoever pays for another may demand from the debtor


what he has paid, except that if he paid without the knowledge
or against the will of the debtor, he can recover only insofar
as the payment has been beneficial to the debtor.14
Art. 1237. Whoever pays on behalf of the debtor without
the knowledge or against the will of the latter, cannot compel
the creditor to subrogate him in his rights, such as those
arising from a mortgage, guaranty, or penalty.15
Art. 1238. Payment made by a third person who does
not intend to be reimbursed by the debtor is deemed to be a
donation, which requires the debtor’s consent. But the pay-
ment is in any case valid as to the creditor who has accepted
it.16

Persons Who May Pay Obligation. — The following may


pay or perform the obligation: first, the debtor himself or his legal
representative; and second, any third person. The effect in both
cases when the payment is effected in accordance with the requisites
prescribed by law is the extinguishment of the obligation.
Idem; Payment by a third person. — It is evident from the
provisions of Arts. 1236 to 1238 of the Code that a third person,
whether he has an interest in the obligation or not, and whether the
payment was made with the knowledge and consent of the debtor or
not, may pay the obligation. Out of this act expressly recognized by
the law, there are several juridical effects which necessarily follow.
These effects are given in Arts. 1236 to 1237 of the Code.
These rules, however, cannot be applied to the case of a
third person who pays the redemption price in sales with right of
repurchase (pacto de retro). This is so because the vendor a retro is
not a debtor within the meaning of the law.17

14
Art. 1158, Spanish Civil Code, in amended form.
15
Art. 1159, Spanish Civil Code, in modified form.
16
New provision.
17
15 Gonzaga vs. Garcia, 27 Phil. 7.

233
Arts. 1237-1238 OBLIGATIONS

Gonzaga vs. Garcia


27 Phil. 7
According to the records of this case, Francisco sold a
parcel of land to Martin with right of repurchase. Subsequently,
by virtue of a court judgment rendered against Francisco, the
right of repurchase was purchased by Del Rosario, the judgment
creditor, at an execution sale. Francisco, as judgment debtor,
was unable to redeem the right thus sold. Meanwhile, he paid
the redemption price to the vendee a retro, Martin, without
the knowledge of Del Rosario. Later, Del Rosario sold the right
to the plaintiff Gonzaga. One of the questions that had to be
decided in this case is whether the provision of what is now Art.
1236 of the New Civil Code is applicable or not. The Supreme
Court held:
“Del Rosario was not a debtor. He was under no obligation
to repurchase the land from Martin. He had a right to do so but
whether he exercised this right or not depended upon his own
volition. Article 1158 (now Art. 1236) is not for these reasons
applicable.’’

Idem; id. — Right of creditor. — Under Art. 1158 of the


Spanish Civil Code, the rule was that any person whether he has
an interest in the fulfillment of the obligation or not could compel
the creditor to accept payment. This rule has been changed in the
New Civil Code. The creditor is not bound as a general rule to accept
payment or performance by a third person. The Code Commission
gives the following reasons for the change.

“Under the present law (Art. 1158, Civil Code of Spain)


the creditor cannot refuse payment by a third person, but the
Commission believes that the creditor should have a right to
insist on the liability of the debtor. Moreover, the creditor should
not be compelled to accept payment from a third person whom
he may dislike or distrust. The creditor may not, for personal
reasons, desire to have any business dealings with a third
person; or the creditor may not have confidence in the honesty
of the third person who might deliver a defective thing or pay
with a check which may not be honored.’’18

18
Report of the Code Commission, p. 132.

234
EXTINGUISHMENT OF OBLIGATIONS Arts. 1237-1238
Payment or Performance

There are, however, two exceptions to the rule that the creditor is
not bound to accept payment or performance by a third person. They
are:
(1) When it is made by a third person who has an interest in
the fulfillment of the obligation,19 such as a joint debtor, guarantor
or surety. Thus, where payment is made by a joint debtor in excess
of what he should pay for the benefit of his co-debtor, such payment
cannot be considered as a payment unduly made under Art. 2154
of the Civil Code, but as one made by a person interested in the
fulfillment of the obligation in accordance with the provision of Art.
1236 of the said Code.20
(2) When there is a stipulation to the contrary.21 In this case,
the creditor is deemed to have waived his right to refuse to deal with
strangers to the obligation.
Idem; id. — Rights of third person. — If a third person
pays the obligation with the knowledge and consent of the debtor,
there are two rights which are available to him. In the first place, he
can recover from the debtor the entire amount which he has paid;22
and in the second place, he is subrogated to all of the rights of the
creditor.23 However, if the payment is made without the knowledge
or against the will of the debtor, there is only one right which is
available to him; he can recover only insofar as the payment has
been beneficial to the said debtor.24
Idem; id.; id. — Right of reimbursement. — Whether the
payment is effected with the knowledge and consent of the debtor
or without his knowledge or even against his will, the third person
who made the payment is entitled to reimbursement. The extent or
amount of recovery, however, is different in either case.
If the payment was effected with the knowledge and consent
of the debtor, the third person can recover from the latter the entire
amount which he has paid.25 Thus, if D is indebted to C for P10,000,

19
Art. 1236, par. 1, Civil Code.
20
Monte de Piedad vs. Rodrigo, 63 Phil. 312.
21
Art. 1236, par. 1, Civil Code.
22
Art. 1236, par. 2, Civil Code.
23
Art. 1302, No. 2, Civil Code.
24
Art. 1236, par. 2, Civil Code.
25
Ibid.

235
Arts. 1237-1238 OBLIGATIONS

and subsequently, when the debt became due and demandable, P,


a third person, paid the entire amount with the knowledge and
consent of D, P can now demand from D the reimbursement of the
entire amount of P10,000.26
If the payment was effected without the knowledge or even
against the will of the debtor, the third person can recover only
insofar as the payment has been beneficial to the latter.27 It is,
therefore, evident that the extent of recovery in this case is much
more limited than when payment is made with the knowledge and
consent of the debtor. The rule is both just and logical. When the
third person pays the debt or obligation without the knowledge
or against the will of the debtor, there is no reason why he can
obligate the debtor to pay more than the amount which the said
debtor would have been legally compelled to pay to the creditor.
Hence, if the debt or obligation has been previously extinguished
totally by any of the modes of extinguishment of obligations, such as
payment, remission, compensation or prescription, the third person
who pays without the knowledge or consent of the debtor would not
be able to recover anything from the latter; if the debt or obligation
has been previously extinguished partially, the third person would
be able to recover only that part of the amount which he has paid
which would correspond to the part of the obligation which has not
been extinguished, because it would be only to that extent that the
payment has been beneficial to the debtor. In both cases, the remedy
of the third person would be to proceed, not against the debtor who
has not been benefited by the payment, but against the creditor who
was unduly paid applying the principle that no person can unjustly
enrich himself at the expense of another.28
It must be noted that from the viewpoint of the debtor, the
provision of the law that the third person or payor “can recover only
insofar as the payment has been beneficial to the debtor,” when made
against his express will, is a defense which may be availed of by the
debtor only and not by the creditor, for it affects solely the rights of
the former. At any rate, in order that the rights of the payor may be
subject to said limitation, the debtor must oppose the payment before
or at the time the same was made, and not subsequent thereto.29

26
See De Guzman vs. Santos, 68 Phil. 371.
27
Art. 1236, Civil Code.
28
Art. 2154, Civil Code.
29
RFC vs. Court of Appeals, 50 Off. Gaz. 2467.

236
EXTINGUISHMENT OF OBLIGATIONS Arts. 1237-1238
Payment or Performance

Idem; id.; id. — Right of subrogation. — If the payment


was effected with the knowledge and consent of the debtor, the third
person who made the payment shall be subrogated to all of the rights
which the creditor could have exercised, not only against the debtor,
but even against third persons. The right is expressly recognized in
Art. 1302 of the Code; it can also be deduced from the provision of
Art. 1237. If the payment, however, was effected without the knowl-
edge or against the will of the debtor, the third person who made the
payment cannot compel the creditor to subrogate him in his rights,
such as those arising from a mortgage, guaranty, or penalty.30
It must be noted that the right of subrogation is not the same
as the right of reimbursement, although it includes the latter.
Subrogation is a right available to the third person or payor, whereby
he is entitled, not only to demand reimbursement from the debtor,
but also to exercise all of the rights which the creditor could have
exercised against the debtor and against third persons, such as those
arising from a mortgage, a guaranty, or a penalty. Reimbursement,
on the other hand, is merely a simple personal action available to
the third person or payor against the debtor to recover from the
latter what he has paid insofar as the payment has been beneficial
to the said debtor.

Problem No. 1 — In 1972, D executed a promissory note


promising to pay to C P10,000 within a period of four years.
The payment of the debt was guaranteed by G. In 1976, P, a
third person, paid the entire amount of the indebtedness with
the knowledge and consent of D. What are the respective rights
and obligations of the parties?
Answer — P shall be subrogated to all of the rights of C,
not only against D, but also against G. This is so, because the
law expressly states that if a third person pays the obligation
with the express or tacit approval of the debtor, he shall be
legally subrogated to all of the rights of the creditor, not only
against the debtor, but even against third persons, be they
guarantors or possessors of mortgages.31 Consequently, P can
demand reimbursement from D of the P10,000 which he had

30
Art. 1237, Civil Code.
31
Arts. 1302, No. 2, 1303, 1304, Civil Code.

237
Arts. 1237-1238 OBLIGATIONS

paid to C.32 If D cannot pay because of insolvency, he can still


proceed against G for the recovery of the amount.33
Problem No. 2 — If in the above problem, C had condoned
one-half of the obligation in 1975, and subsequently, in 1976,
P, unaware of the partial remission of the indebtedness, paid,
without the knowledge and consent of D, the entire amount of
P10,000 to C, who accepted it, what would be the effect of such
payment upon the rights and obligations of the parties?
Answer — With respect to D, the only right which P has
against him is to recover P5,000, because, it is only to that extent
that he had been benefited by the payment.34 With respect to
G, if D cannot pay the P5,000 because of insolvency, P can no
longer proceed against him, because the payment was made
without the knowledge and consent of D, and consequently, he
cannot be subrogated to the rights of C against G.35 With respect
to C, however, undoubtedly, P can still proceed against him for
the recovery of P5,000, applying the principle that no person can
unjustly enrich himself at the expense of another.36

Idem; id. — Gratuitous payments. — If the payment is


made by a third person who does not intend to be reimbursed by
the debtor, the presumption arises that such payment is a donation.
Therefore, the debtor’s consent is necessary,37 as in the case of the
donee in ordinary donations.38 Once the debtor’s consent is secured,
then the rules on ordinary donations will apply. If such consent,
however, is not secured, the rules stated in Arts. 1236 and 1237 will
still apply. As far as the creditor who has accepted the payment is
concerned, the debtor’s consent is immaterial; the payment is valid
in any case.39

Art. 1239. In obligations to give, payment made by one


who does not have the free disposal of the thing due and
capacity to alienate it shall not be valid, without prejudice

32
Art. 1236, par. 1, Civil Code.
33
Arts. 1302, No. 2, 1303, Civil Code.
34
Art. 1236, par. 2, Civil Code.
35
Art. 1237, Civil Code.
36
Art. 2154, Civil Code.
37
Art. 1238, Civil Code.
38
Arts. 734, 745, Civil Code.
39
Art. 1238, Civil Code.

238
EXTINGUISHMENT OF OBLIGATIONS Arts. 1237-1238
Payment or Performance

to the provisions of Article 1427 under the Title on “Natural


Obligations.’’40

Capacity To Make Payment. — It is, of course, essential that


the person who pays the obligation should have the necessary legal
capacity to effect such payment. This is especially true in obligations
to give. In such case, it is essential for the validity of the payment
that the payor should have the free disposal of the thing due and the
capacity to alienate it. The absence of one or the other will affect the
validity of the payment.
Consequently, if the payment was effected by a person who
does not have the free disposal of the thing due and/or the capacity
to alienate it, as in the case of a minor or an insane person, such
payment is not valid.41 In other words, even if the creditor has already
accepted it, it may still be annulled by a proper action in court at the
instance of the payor or his legal representative, unless it falls within
the purview of the exception expressly provided for in Art. 1427 of
the Code. However, from the viewpoint of the obligation itself, a
certain qualification must be made. If an incapacitated person offers
to pay the obligation and the creditor refuses to accept the payment
because he is aware of the payor’s incapacity, the obligation still
subsists. Such creditor cannot be compelled to accept the payment;
as a result, consignation of the thing due is not possible.

Art. 1240. Payment shall be made to the person in whose


favor the obligation has been constituted, or his successor in
interest, or any person authorized to receive it.42

To Whom Payment Must Be Made. — Payment shall be


made, as a general rule, to (1) the person in whose favor the obligation
has been constituted, or (2) his successor in interest, or (3) any
person authorized to receive it. Under the old Code, the second was
not included in the enumeration; in spite of the omission, however,
the first, according to Manresa, includes not only the person who
was the creditor at the time of the constitution of the obligation, but
also the person who is the creditor at the time of payment. This is

40
Art. 1160, Spanish Civil Code, in modified form.
41
Art. 1239, Civil Code.
42
Art. 1162, Spanish Civil Code, in modified form.

239
Arts. 1237-1238 OBLIGATIONS

so, because, although the obligation was not constituted in favor of


the latter, in the last analysis, it was constituted for his benefit.43
In order to resolve all doubts with respect to this point, the Code
Commission has added the second (successor-in-interest) to the
original provision of the Spanish Civil Code. The third, on the other
hand, refers to any person expressly or impliedly authorized by the
creditor himself or by law.44
Idem; Persons authorized to receive payment. — As
stated in the preceding section, the person authorized to receive the
payment refers not only to a person authorized by the creditor, but
also to a person authorized by law to do so. Thus, payment made
to a guardian, or to the executor or administrator of the estate of
a deceased person, or to the assignee or liquidator of a partnership
or corporation is payment made to a person authorized by law to
receive it and, consequently, is valid.45
The above interpretation of the phrase “any person authorized
to receive payment is best illustrated by those cases decided by our
courts after liberation involving the validity of payments made to
the Bank of Taiwan during the war. It must be remembered that
during the occupation, enemy properties (properties belonging
to nationals of countries at war with Japan) were sequestered by
order of the Commander-in-Chief of the Japanese Imperial Forces
in the Philippines in accordance with the theory that a belligerent
occupant has the power to take by sequestration not only public
property but also private property of the enemy in an occupied
territory. These properties were given to the Enemy Property
Custodian for liquidation with the Bank of Taiwan as depository.
The question then is — if the debtor had incurred an indebtedness
from a certain enemy bank before the war and payment was made to
the Bank of Taiwan as liquidator of the said bank at any time during
the Japanese occupation, is the payment valid? This question was
answered in the affirmative by the Supreme Court for the first time
in the leading case of Haw Pia vs. China Banking Corporation.46 In
said case, the Court held:

43
8 Manresa, 5th Ed., Bk 1, p. 536; Tuazon and San Pedro vs. Zamora & Sons,
2 Phil. 305.
44
Haw Pia vs. China Banking Corp., 80 Phil. 604.
45
8 Manresa, 5th Ed., Bk. 1, p. 537.
46
80 Phil. 604.

240
EXTINGUISHMENT OF OBLIGATIONS Arts. 1237-1238
Payment or Performance

“It having been shown x x x that the Japanese Military


Forces had power to sequestrate and impound the assets or
funds of the China Banking Corporation, and for that purpose
to liquidate it by collecting the debts due to said bank from its
debtors, and paying its creditors, and therefore to appoint the
Bank of Taiwan as liquidator with the consequent authority to
make the collection, it follows evidently that the payments by
the debtors to the Bank of Taiwan of their debts to the China
Banking Corporation have extinguished their obligation to
the latter. Said payments were made to a person, the Bank of
Taiwan, authorized to receive them in the name of the bank
credit or under Article 1162 (now Art. 1240) of the Civil Code,
because it is evident that the words ‘a person authorized to
receive it,’ as used therein, means not only a person authorized
by the same creditor but also a person authorized by law to do
so.’’47

Idem; id. — Payment to unauthorized persons. — If


the payment is made to a person other than those enumerated in
Art. 1240, it shall not be valid. Thus, where an electric plant was
sold and delivered by the plaintiff to the defendant and the latter
subsequently paid the purchase price, without the knowledge of the
former, to a certain person who represented himself as the plaintiff’s
agent, it was held that the defendant had no right to assume that
such person was authorized to receive the money; consequently, said
defendant made the payment at his own risk and can still be held
liable for the purchase price.48 This conclusion is strengthened by the
fact that in agency, an assumption of authority to act as agent for
another of itself challenges inquiry.49 Similarly, where the decedent
during his lifetime had assigned the right to collect a certain credit to
his children by a prior marriage, and subsequently, the debtor, with
knowledge of the assignment, paid the debt to the decedent’s second
wife, it was held that such payment is void on the ground that it was
made to a person not authorized to receive the payment.50 The same
conclusion can also be applied to the act of the vendee in depositing
the balance of the purchase price at the Philippine National Bank in

47
To the same effect: Everett Steamship Corp. vs. Bank of P.I., 47 Off. Gaz. 165;
Hodges vs. Gay, 48 Off. Gaz. 136; Winship vs. Phil. Trust Co., 90 Phil. 744; Bay Boul-
evard vs. Sycip, 92 Phil. 508.
48
Keleer Electric Co. vs. Rodriguez, 44 Phil. 19.
49
Ormachea vs. Triliana, 13 Phil. 194.
50
Crisol vs. Claveron, CA, 3 Off. Gaz. 3734.

241
Art. 1241 OBLIGATIONS

the name of the vendor when he could not locate the latter because
of the conditions then existing in January, 1945, when the payment
became due.51 Although the payment is not valid because it is not
made to a person authorized to receive it in accordance with the
provision of Art. 1240 of the Code, nevertheless it is clear that the
vendee had acted in good faith; he cannot, therefore, be said to
have incurred in delay; consequently, the vendor cannot ask for the
rescission of the contract.52
Idem; id. — Exceptions. — There are, however, two excep-
tions to the rule that payment made to a person other than those
enumerated in Art. 1240 is not valid. They are: first, payment made
to a third person, provided that it has redounded to the benefit of the
creditor,53 and second, payment made to the possessor of the credit,
provided that it was made in good faith.54

Art. 1241. Payment to a person who is incapacitated to


administer his property shall be valid if he has kept the thing
delivered, or insofar as the payment has been beneficial to
him.
Payment made to a third person shall also be valid
insofar as it has redounded to the benefit of the creditor. Such
benefit to the creditor need not be proved in the following
cases:
(1) If after the payment, the third person acquires the
creditor’s rights;
(2) If the creditor ratifies the payment to the third
person;
(3) If by the creditor’s conduct, the debtor has been led
to believe that the third person had authority to receive the
payment.55
Payment to Incapacitated Persons. — According to the
above article, if payment is made to a person who is incapacitated

51
Arcache vs. Lizares & Co., 91 Phil. 348.
52
Ibid.
53
Art. 1241, par. 2, Civil Code.
54
Art. 1242, Civil Code.
55
Art. 1163, Spanish Civil Code, in modified form.

242
EXTINGUISHMENT OF OBLIGATIONS Art. 1241
Payment or Performance

to administer his property, the payment is considered valid: (1) if


he has kept the amount or thing paid or delivered, or (2) insofar
as the payment has been beneficial to him. It is evident that if the
incapacitated person has kept or preserved the amount or thing
paid or delivered, the act is beneficial to him; hence, the first case is
actually included in the second.
When the law says that the payment, in order to be valid, must
have been beneficial to the incapacitated person, it does not literally
mean that the amount or thing paid or delivered should have been
invested by such incapacitated person or used for expenses. The
payment is beneficial to him when that which has been paid or
delivered is applied or spent for some rational, necessary or useful
purpose for his benefit. Otherwise, the payment is not valid, and as
a consequence, the debtor may be made to pay again either at the
instance of the incapacitated person upon recovering or acquiring
capacity or at the instance of the legal representative of such person
during such incapacity.56
It must be noted that the rule is applicable only to obligations
to give.
Payment to Third Persons. — If the payment is made to
a third person, the rule is that it shall be valid insofar as it has
redounded to the benefit of the creditor.57 This rule constitutes an
exception to the general rule stated in Art. 1240. As in the case of
the preceding rule, it is applicable only to obligations to give.
It must be observed, however, that in order that the payment
shall be valid, it is essential that it should have redounded to the
benefit of the creditor. Consequently, the rule cannot be invoked
without conclusive proof of the benefit to the creditor, especially
when there is not the slightest evidence that the third person to
whom payment was made had any claim to the creditor’s right.58 It
cannot, therefore, be presumed except in the three cases specified
in the second paragraph of Art. 1241. Thus, even granting that the
payment to a third person was made through mistake and in good
faith, the debtor can still be held liable. If it becomes impossible
for such debtor to recover what was unduly paid, any loss resulting

56
8 Manresa, 5th Ed., Bk. 1, p. 540.
57
Art. 1241, par. 2, Civil Code.
58
Panganiban vs. Cuevas, 7 Phil. 477.

243
Art. 1243 OBLIGATIONS

therefrom shall be borne by him unless there is a stipulation to


the contrary, or unless the creditor himself was responsible for the
wrongful payment.59

Art. 1242. Payment made in good faith to any person in


possession of the credit shall release the debtor.60
Payment to Possessors of Credit. — It must be noted that
the possession referred to in the above article is the possession of
the credit, not the possession of the document evidencing it. Thus,
the article may be applied to the payment made to the original
creditor by a debtor who is not aware of the fact that the credit has
already been assigned to another person. It may also be applied
to the payment made to an assignee, although the assignment is
afterwards rescinded or annulled. It must always, of course, be
indispensable that the payment should have been made in good
faith. If this requisite is present, then the payment shall release the
debtor. In such case, the remedy of the creditor would be to proceed
against the possessor of the credit to whom payment was improperly
made.61
It must be noted that the rule stated in the article under
discussion is another exception to the general rule stated in Art.
1240 and that it is applicable only to obligations to give.

Art. 1243. Payment made to the creditor by the debtor


after the latter has been judicially ordered to retain the debt
shall not be valid.62
Payment After Judicial Order of Retention. — According
to the above article, if the debtor pays the creditor after he has
been judicially ordered to retain the debt, such payment shall not
be valid. Consequently, after the debtor has received the notice of
attachment or garnishment, payment can no longer be made to the
creditor whose credit has been attached to satisfy a judgment in
favor of another person. Such payment must be made to the proper

59
Ibid.
60
Art. 1164, Spanish Civil Code.
61
8 Manresa, 5th Ed., Bk. 1, pp. 545-546.
62
Art. 1165, Spanish Civil Code.

244
EXTINGUISHMENT OF OBLIGATIONS Arts. 1244-1246
Payment or Performance

officer of the court issuing the writ of attachment or garnishment in


conformity with the provisions of the Rules of Court.63

Art. 1244. The debtor of a thing cannot compel the


creditor to receive a different one, although the latter may
be of the same value as, or more valuable than that which is
due.
In obligations to do or not to do, an act or forbearance
cannot be substituted by another act or forbearance against
the obligee’s will.64
Art. 1245. Dation in payment, wherein property is
alienated to the creditor in satisfaction of a debt in money,
shall be governed by the law of sales.65
Art. 1246. When the obligation consists in the delivery
of an indeterminate or generic thing, whose quality and
circumstances have not been stated, the creditor cannot
demand a thing of superior quality. Neither can the debtor
deliver a thing of inferior quality. The purpose of the obliga-
tion and other circumstances shall be taken into consider-
ation.66

What Must Be Paid. — The two rules stated in Art. 1244


are logical consequences of the nature of specific or determinate
obligations.
According to the first paragraph, if the obligation is to give
and the object is a thing which is specific or determinate, the debtor
cannot fulfill his obligation by delivering a thing which is different
from that which is due. This is so although the thing which is
delivered may be of the same value or even more valuable than that
which is due. According to the second paragraph, if the obligation
is to do or not to do and the object is an act or forbearance which is
specific or determinate, the obligor cannot fulfill his obligation by
substituting another act or forbearance. In both cases, the creditor
or obligee cannot be compelled to accept the delivery of the thing or

63
Sec. 8, Rule 57, New Rules of Court.
64
Art. 1166, Spanish Civil Code, in modified form.
65
New provision.
66
Art. 1167, Spanish Civil Code, in modified form.

245
Arts. 1244-1246 OBLIGATIONS

the substitution of the act or forbearance. However, if he accepts the


delivery or substitution, such acceptance shall give to the delivery
or substitution the same effect as a fulfillment or performance of the
obligation.
Idem; Effect of dation in payment. — However, if the
creditor and the debtor enter into an agreement by virtue of which
a certain property is alienated by the debtor to the creditor as the
equivalent of the performance of the obligation, the law on sales
shall then govern.67 It is, therefore, evident that dación en pago or
dation in payment constitutes an exception to the rule stated in Art.
1244.
Dation in payment (dación en pago) is defined as the transmis-
sion of the ownership of a thing by the debtor to the creditor as an
accepted equivalent of the performance of the obligation.68 According
to the modern doctrine, in dacion en pago there is in reality an objec-
tive novation of the previous obligation effected by a change of the
object thereof. Our Civil Code, however, has adopted the traditional
concept of dación en pago as a special form of payment which is
most analogous to a contract of sales following the opinion of the Su-
preme Court of Spain (Sentencias, Jan. 9, 1916 and Aug. 10, 1918)
and also of Spanish commentators. Hence, once there is an agree-
ment between the debtor and the creditor with regard to the thing
which must be delivered by the former to the latter as the equivalent
of the performance of the obligation, the law on sales shall govern,
with the credit as the price of the thing.69 Thus, if D executed a prom-
issory note in 1966 promising to pay to C P5,000 within four years
from the execution of the note, and in 1969 when the obligation be-
came demandable the two entered into an agreement by virtue of
which D shall deliver his automobile to C as the equivalent of the
performance of the obligation, the effect is the transformation of the
previous contract into a contract of sale with the automobile as the
object and the loan of P5,000 as the purchase price.
Idem; Effect if object is generic. — The rule stated in Art.
1246 is based on equity and justice. If there is no precise declaration
in the obligation with regard to the quality and circumstances of the

67
Art. 1245, Civil Code.
68
8 Manresa, 5th Ed., Bk. 1, p. 610.
69
Ibid., pp. 610-611.

246
EXTINGUISHMENT OF OBLIGATIONS Arts. 1247-1248
Payment or Performance

indeterminate thing which constitutes its object, the creditor cannot


demand a thing of the best quality; neither can the debtor deliver a
thing of the worst quality. The obligation can only be fulfilled by the
delivery of a thing which is neither of superior nor inferior quality.
Hence, it becomes actually a question of relative appreciation; if there
is disagreement between the parties, the law steps in and declares
whether the obligation has been complied with or not, depending
upon the purpose of such obligation and other circumstances.70

Art. 1247. Unless it is otherwise stipulated, the extraju-


dicial expenses required by the payment shall be for the ac-
count of the debtor. With regard to judicial costs, the Rules
of Court shall govern.71
Expenses of Payment. — To the rules specified in the above
article we must add the supplementary rule stated in the fourth
paragraph of Art. 1251 that if the debtor changes his domicile in
bad faith or after he has incurred in delay, the additional expenses
shall be borne by him.

Art. 1248. Unless there is an express stipulation to that


effect, the creditor cannot be compelled partially to receive
the prestations in which the obligation consists. Neither may
the debtor be required to make partial payments.
However, when the debt is in part liquidated and in
part unliquidated, the creditor may demand and the debtor
may effect the payment of the former without waiting for the
liquidation of the latter.72
Character of Payment. — According to Castan, in order that
the prestation which constitutes the object of the obligation may be
considered as paid or performed, three conditions or characteristics
must, as a general rule, concur. They are: identity, completeness
and indivisibility. The first refers to the rule that only the prestation
agreed upon and no other must be complied with;73 the second refers
to the rule that the thing or service in which the obligation consists

70
Ibid., pp. 552-553.
71
Art. 1168, Spanish Civil Code, in modified form.
72
Art. 1169, Spanish Civil Code, in modified form.
73
Arts. 1244, 1245, 1246, 1249, Civil Code.

247
Art. 1249 OBLIGATIONS

must be completely delivered or rendered;74 and the third refers to


the rule that the payment or performance must be indivisible.75
It must be noted, however, that Art. 1248 is applicable only
to an obligation where there is only one debtor and one creditor;
it is not applicable to one where there is plurality of debtors and
creditors. The latter is governed by different rules which we have
already taken up in a previous chapter.76 Neither is it applicable to
one where the different prestations are subject to different terms
and conditions. Hence, even when there is only one debtor and only
one creditor, the rule stated in the article is only in the nature of
a general rule. There are three exceptions. They are: first, when
the obligation expressly stipulates the contrary; second, when the
different prestations which constitute the objects of the obligation
are subject to different terms and conditions; and third, when the
obligation is in part liquidated and in part unliquidated.77

Art. 1249. The payment of debts in money shall be made


in the currency stipulated, and if it is not possible to deliver
such currency, then in the currency which is legal tender in
the Philippines.
The delivery of promissory notes payable to order,
or bills of exchange or other mercantile documents shall
produce the effect of payment only when they have been
cashed, or when through the fault of the creditor they have
been impaired.
In the meantime, the action derived from the original
obligation shall be held in abeyance.78

Rule in Monetary Obligations. — According to the first


paragraph of Art. 1249, in monetary obligations, payment shall be
made in the currency stipulated. If it is not possible to pay in the
currency stipulated, then the payment shall be made in legal tender
of the Philippines. Although the article does not expressly say so, it
is evident that if there is no stipulation regarding the currency in

74
Arts. 1233, 1234, 1235, Civil Code.
75
Art. 1248, Civil Code.
76
Arts. 1207, et seq., Civil Code.
77
8 Manresa, 5th Ed., Bk. 1, pp. 563-564.
78
Art. 1170, Spanish Civil Code.

248
EXTINGUISHMENT OF OBLIGATIONS Art. 1249
Payment or Performance

which the payment shall be made, the payment shall still be made
in legal tender of the Philippines.
Thus, the Supreme Court in the case of Zagala vs. Jimenez, it
held that “a judgment awarding an amount in U.S. dollar may be
paid with its equivalent amount in local currency in the conversion
rate prevailing at the time of payment. If the parties cannot agree
on the same, the trial court should determine such conversion rate.
Needless to say, the judgment debtor may simply satisfy said award
by paying in full the amount in U.S. dollars. Therefore, when the
petitioners, in this case, filed their motion to fix the peso value
of the judgment in dollars, they only intended to exercise a right
granted to them by the present jurisprudence — that the trial court
shall determine or fix the conversion rate prevailing at the time of
payment.’’
Idem; Effect of Rep. Act Nos. 529 and 4100. — However, in
order to assure the stability of the Philippine currency the Congress
passed a law entitled “An Act To Assure the Uniform Value of
Philippine Coins and Currency” (Rep. Act No. 529) which took effect
on June 16, 1949. Under this Act, the rule in the Civil Code that
payment of debts in money shall be made in the currency stipulated
was completely abrogated. Thus, Sec. 1 of this Act provides:

“Every provision contained in, or made with respect to,


any obligation which provision purports to give the obligee the
right to require payment in gold or in a particular kind of coin
or currency other than Philippine currency or in an amount of
money of the Philippines measured thereby, be as it is hereby
declared against public policy, and null, void and of no effect.
x x x Every obligation heretofore or hereafter incurred x x x
shall be discharged upon payment in any coin or currency which
at the time of payment is legal tender for public and private
debts: Provided, That, if the obligation was incurred prior to
the enactment of this Act and required payment in a particular
coin or currency, it shall be discharged in Philippine currency
measured at the prevailing rates of exchange at the time the
obligation was incurred except in case of a loan made in a foreign
currency stipulated to be payable in the same currency in which
case the rate of exchange prevailing at the time of the stipulated
date of payment shall prevail.’’79

79
See Eastboard Navigation Co. vs. Ysmael Co., 102 Phil. 1; Arrieta vs. Nat. Rice
and Corn Corp., 10 SCRA 79.

249
Art. 1249 OBLIGATIONS

Later on, in order to encourage foreign investments and to


cope with the requirements of international trade and banking
transactions, Rep. Act No. 4100 was enacted amending the above Act.
This law took effect on June 19, 1964. According to this Act, the law
prohibiting stipulations in domestic monetary obligations purporting
to give to the obligee the right to require payment in currency other
than Philippine currency does not apply to: (a) transactions where
the funds involved are the proceeds of loans and investments made
directly or indirectly, through bona fide intermediaries or agents,
by foreign governments, their agencies and instrumen-talities, and
international financial and banking institutions so long as the funds
are identifiable, as having emanated from the sources enumerated
above; (b) transactions affecting high-priority economic projects
for agricultural, industrial and power development as may be
determined by the National Economic Council which are financed by
or through foreign funds; (c) foreign exchange transactions entered
into between banks or between banks and individuals or juridical
persons; and (d) import-export and international banking, financial
investment and industrial transactions.80

Problem — “S,” an American resident of Manila, about


to leave on a vacation, sold his car to “B” for US$2,000.00,
the payment to be made ten days after delivery to ‘’X,’’ a third
party depositary agreed upon, who shall deliver the car to “B’’
upon receipt of “X” of the purchase price. It was stipulated that
ownership is retained by “S’’ until delivery of the car to “X.” Five
days after delivery of the car to “X,” it was destroyed in a fire
which gutted the house of “X,” without the fault of either “X” or
“B.’’
Question No. 1 — Is buyer “B’’ still legally obligated to pay
the purchase price? Explain. (1981 Bar Problem)
Answer — Yes, buyer “B” is still legally obligated to pay
the purchase price. It must be observed that “S” had already
delivered the car to “X,” the third party depositary or bailee.
It was agreed that ownership is retained by “S” until delivery
to “X.” Therefore, in effect, there was already a transfer of the
right of ownership over the car to “B.” Consequently, “B’’ shall
assume the fortuitous loss of the car. As a matter of fact, even
if it was agreed that “S’’ shall retain the ownership of the car

80
Sec. 1, Rep. Act No. 4100.

250
EXTINGUISHMENT OF OBLIGATIONS Art. 1249
Payment or Performance

until the purchase price has been paid by “B,” the end result
will still be the same. Since, evidently, the purpose is to secure
performance by the buyer of his obligation to pay the purchase
price, by express mandate of the law, the fortuitous loss of the
car shall be assumed by “B.’’
(Note: The above answer is based on Art. 1504 of the Civil
Code.)
Question No. 2 — May seller “S’’ demand payment in U.S.
dollar? Why? (1981 Bar Problem)
Answer — The seller “S’’ cannot demand payment in U.S.
dollars. According to the law, an agreement that payment shall
be made in currency other than Philippine currency is void
because it is contrary to public policy. That does not mean,
however, that “S” cannot demand payment from “B.” He can
demand payment, but not in American dollars. Otherwise,
there would be unjust enrichment at the expense of another.
Payment, therefore, should be made in Philippine currency.
(Note: The above answer is based on R.A. No. 529 and on
Ponce vs. Court of Appeals, 90 SCRA 533.)

Idem; Meaning of legal tender. — Legal tender, within the


meaning of Art. 1249 of the Code, refers to such currency which may
be used for the payment of all debts, whether public or private.81
Under our law, the legal tender of the Philippines would be all notes
and coins issued by the Central Bank.82
Idem; Payments with Japanese military notes. — One of
the problems which confronted our courts after liberation was the
determination of the validity of payments made during the Japanese
occupation of pre-war debts which were then due in depreciated
Japanese military notes. Considering that some of these payments
were made during the last months of the occupation when these
notes had depreciated so much in value, a just solution based on the
laws then in force was called for.
Evidently, if the pre-war obligation contains a stipulation to
the effect that payment shall be made in a certain currency, such
as American or English currency, the rule is that the payment, in
order to be valid, must be made in the currency stipulated; hence,

81
Sec. 54, Rep. Act No. 265; Sec. 1, Rep. Act No. 529.
82
Ibid.

251
Art. 1249 OBLIGATIONS

if payment was made in Japanese military notes and the creditor


refused to accept it, it would not be valid even if it was followed by
consignation.83
However, if the pre-war obligation contains a stipulation to the
effect that payment shall be made in the currency which is legal
tender in the Philippines at the time when payment is to be made
or if such obligation is silent with respect to the currency in which
the payment shall be made, payment in Japanese military notes is
valid and effective. In the words of the Supreme Court: “A payment
made by a debtor during the enemy occupation of a pre-war debt or
obligation with Japanese notes and accepted by the creditor, is valid
and extinguishes the former’s obligation.’’84
The doctrine is applicable irrespective of the attitude of the
creditor.85 Thus, it has been held that a payment made by a debtor and
accepted by the creditor during the enemy occupation “in compliance
with the orders of the military authorities to reopen banks and
accept the military notes as legal tender in payment of debts, issued
in the exercise of their authority as military occupants, cannot be
considered as made under a collective and general duress, because
an act done pursuant to the laws or orders of competent authorities
can never be regarded as executed involuntarily, or under duress, or
illegitimate constraint, or compulsion that invalidates the act.”86
The validity of such payments is, of course, based on the fact
that such military notes were legal tender in the Philippines at the
time such payments were made.87 As a matter of fact, Japanese
military notes were the only money in circulation in the Philippines
during the latter part of the occupation; they were not only intended
to be the legal tender in the Philippines, they were intended to be
circulated exclusively therein. In this sense, it is evident that they
were the Philippine currency or money during such period.88 Indeed,

83
Legarda vs. Carrascoso, 81 Phil. 450.
84
Hillado vs. De la Costa, 46 Off. Gaz. 5472. To the same effect: Haw Pia vs.
China Banking Corp., 80 Phil. 604; Del Rosario vs. Sandico, 47 Off. Gaz. 2866; Sori-
ano vs. Abalos, 47 Off. Gaz. 2894.
85
Hernaez vs. McGrath, 48 Off. Gaz. 2868.
86
Phil. Trust Co. vs. Araneta, 46 Off. Gaz. 4254; Larraga vs. Bañez, 47 Off. Gaz.
696; Compania General de Tabacos vs. Araneta, 96 Phil. 971.
87
Haw Pia vs. China Banking Corp., 80 Phil. 604.
88
Valdeabella vs. Marquez, 48 Off. Gaz. 719.

252
EXTINGUISHMENT OF OBLIGATIONS Art. 1249
Payment or Performance

judicial notice must be taken of the fact that in 1943, they had as
much purchasing power, if not more, than the victory notes of 1945
— at least as regards local foodstuffs and products.89
Idem; Payments with emergency notes. — What had been
stated regarding payments with Japanese military notes can also
be applied to a certain extent to payments made with emergency
notes which were issued either by the Commonwealth government
during the invasion or by recognized guerrilla governments during
the occupation. This is so because undoubtedly these emergency
notes must be considered as legal tender but only in those places
which were under the control of either the Commonwealth or of the
guerrilla government issuing the notes.90 Consequently, where the
defendant borrowed P3,130 in emergency notes from the plaintiff
in 1942, he cannot now contend that the sum of money delivered
to him consisted of valueless notes which were not legal tender.
These emergency notes which the officers of the Commonwealth
were authorized by President Quezon to issue before he left the
Philippines were then valid and legal tender.91
Idem; Payments with negotiable paper. — Since negotiable
papers or mercantile documents, such as promissory notes payable
to order or bills of exchange, are not legal tender, it is logical that the
delivery of such papers or documents by the debtor to the creditor
shall not produce the effect of payment. Consequently, if the debtor
tenders a check to the creditor as payment of an obligation, the latter
has a perfectly valid right to refuse it, even if the check may be good.
In such case, the tender shall not produce the effect of payment.92 This
is true even if the refusal of the creditor is followed by consignation
whether the check is an ordinary check or a manager’s check.93

89
Aurreocoecha vs. Kabankalan Sugar Co., 81 Phil. 476.
90
Rep. Act Nos. 22 and 368, applied in Donasco vs. Serra, CA, G.R. No. 7046-R,
Sept. 30, 1953.
91
Phil. National Bank vs. Teves, 100 Phil. 491.
92
Belisario vs. Natividad, 60 Phil. 156; Phil. National Bank vs. Relativo, 92 Phil.
203.
93
Villanueva vs. Santos, 67 Phil. 648; Cuaycong vs. Ruiz, 47 Off. Gaz. 6125; CFI
of Tarlac vs. Court of Appeals, 91 Phil. 912; Hidalgo vs. Heirs of Tuason, 104 Phil.
336.

253
Art. 1249 OBLIGATIONS

Hidalgo vs. Heirs of Tuazon, Inc.


104 Phil. 336

On August 31, 1943, plaintiffs obtained a loan of P100,000


from the defendant and to guarantee the payment of said
loan, plaintiffs constituted a mortgage on four parcels of land
belonging to them. It was agreed that the debtors may pay their
indebtedness at any time before the expiration of the term of
the contract subject, however, to the following conditions: (1)
if payment is made before the termination of the hostilities
between America and Japan, the indebtedness should be paid
with an increase of 100%; and (2) if payment is made thereafter,
30 day-notice in advance should be given to defendant
corporation. On Dec. 6, 1944, plaintiff Eduardo B. Hidalgo sent
a check to defendant for the sum of P101,673.50, representing
payment of his share in the obligation, but the same was
rejected by defendant for the reason that such mode of payment
was contrary to their agreement. On Dec. 29, 1944, plaintiff
Felipe R. Hidalgo sent another check for the same amount to
the defendant. The check was received by Nicasio A. Tuason.
From this date no further action was taken, and when liberation
came, plaintiffs brought this action in the Court of First Instance
of Manila praying that the defendant be ordered to execute a
document releasing them from their obligation and cancelling
the mortgage executed by them. The defendant answered that
notwithstanding the express provisions of the mortgage, said
loan shall not be paid except in genuine Philippine currency
after the war. After trial, the court rendered judgment in favor
of the plaintiffs. Hence, the defendant appealed. The question
now is whether the obligation has already been paid or not. The
Supreme Court held:
“With regard to the draft tendered by plaintiff Eduardo
Hidalgo to defendant which was rejected by the latter, the same
did not ripen into payment because of such rejection. The remedy
of Hidalgo was to make a consignation thereof as required by
law and give notice thereof to defendant. Such was not done
and so the tender of payment became ineffective. With regard to
the draft which plaintiff Felipe Hidalgo tendered to defendant,
it is true that the same was accepted by Nicasio Tuason, but
such tender cannot also have the effect of payment for under the
law payment made in check or draft has the effect of payment
only when actually cashed. There is no showing that the draft
has been cashed. Nor is there a showing that it was impaired
through the fault of defendant. Therefore, plaintiffs are still
indebted to defendant and unless they pay the same they cannot

254
EXTINGUISHMENT OF OBLIGATIONS Art. 1249
Payment or Performance

ask for the cancellation of their mortgage. Considering however


that the indebtedness may be wholly or partially discharged
even before the termination of hostilities between America and
Japan, plaintiffs can only be made to pay the same subject to
conversion under the Ballantyne scale of values pursuant to a
long line of decisions of this court.”

Attention, however, must be called to the effect of Section 63 of


the Central Bank Act. This is very well illustrated in the following
case:

New Pacific Timber & Supply Co. vs. Seneris


101 SCRA 686

A petition for certiorari with preliminary injunction to


annul and/or modify the order of the Court of First Instance
of Zamboanga City (Branch II) dated August 28, 1975 denying
petitioner’s Ex-Parte Motion for Issuance of Certificate of
Satisfaction of Judgment.
Herein petitioner is the defendant in a complaint for
collection of a sum of money filed by the private respondent.
On July 19, 1974, a compromise judgment was rendered by the
respondent Judge in accordance with an amicable settlement
entered into by the parties the terms and conditions of which,
are as follows:
“(1) That defendant will pay to the plaintiff the amount
of Fifty Four Thousand Five Hundred Pesos (P54,500.00) at 6%
interest per annum to be reckoned from August 25, 1972;
“(2) That defendant will pay to the plaintiff the amount
of Six Thousand Pesos (P6,000.00) as attorney’s fees for which
P5,000.00 had been acknowledged received by the plaintiff
under Consolidated Bank and Trust Corporation Check No.
16-135022 amounting to P5,000.00 leaving a balance of One
Thousand Pesos (P1,000.00);
“(3) That the entire amount of P54,500.00 plus interest,
plus the balance of P1,000.00 for attorney’s fees will be paid by
defendant to the plaintiff within five months from today, July
19, 1974; and
“(4) Failure on the part of the defendant to comply with
any of the above conditions, a writ of execution may be issued by
this Court for the satisfaction of the obligation.”

255
Art. 1249 OBLIGATIONS

For failure of the petitioner to comply with his judgment


obligation, the respondent Judge, upon motion of the private
respondent, issued an order for the issuance of a writ of
execution on December 21, 1974. Accordingly, writ of execution
was issued for the amount of P63,130.00 pursuant to which, the
Ex-Officio Sheriff levied upon the following personal properties
of the petitioner, to wit:
(1) Unit American Lathe 24”
(1) Unit American Lathe 18” Cracker Wheeler
(1) Unit Rockford Shaper 24’’
and set the auction sale thereof on January 15, 1975. However,
prior to January 15, 1975, petitioner deposited with the Clerk of
Court, Court of First Instance, Zamboanga City, in his capacity
as Ex-Officio Sheriff of Zamboanga City, the sum of P63,130.00
for the payment of the judgment obligation, consisting of the
following:
1. P50,000.00 in Cashier’s Check No. S-314361 dated
January 3, 1975 of the Equitable Banking Corporation; and
2. P13,130.00 in cash.
In a letter dated January 14, 1975, to the Ex-Officio
Sheriff, private respondent through counsel, refused to accept
the check as well as the cash deposit. In the same letter, private
respondent requested the scheduled auction sale on January
15, 1975 to proceed if the petitioner cannot produce the cash.
However, the scheduled auction sale at 10:00 a.m. on January
15, 1975 was postponed to 3:00 o‘clock p.m. of the same day
due to further attempts to settle the case. Again, the scheduled
auction sale that afternoon did not push through because of a
last ditch attempt to convince the private respondent to accept
the check. The auction sale was then postponed to the following
day, January 16, 1975 at 10:00 o’clock a.m. At about 9:15 a.m.
on January 16, 1975, a certain Mr. Tañedo representing the
petitioner appeared in the office of the Ex-Officio Sheriff and the
latter reminded Mr. Tañedo that the auction sale would proceed
at 10:00 o’clock. At 10:00 a.m., Mr. Tañedo and Mr. Librado,
both representing the petitioner requested the Ex-Officio Sheriff
to give them fifteen minutes within which to contact their lawyer
which request was granted. After Mr. Tañedo and Mr. Librado
failed to return, counsel for private respondent insisted that the
sale must proceed and the Ex-Officio Sheriff proceeded with the
auction sale. In the course of the proceedings, Deputy Sheriff
Castro sold the levied properties item by item to the private

256
EXTINGUISHMENT OF OBLIGATIONS Art. 1249
Payment or Performance

respondent as the highest bidder in the amount of P50,000.00.


As a result thereof, the Ex-Officio Sheriff declared a deficiency
of P13,130.00. Thereafter, on January 16, 1975, the Ex-Officio
Sheriff issued a “Sheriff’s Certificate of Sale” in favor of the
private respondent, Ricardo Tong, married to Pascuala Tong for
the total amount of P50,000.00 only. Subsequently, on January
17, 1975, petitioner filed an ex-parte motion for issuance of
certificate of satisfaction of judgment. This motion was denied
by the respondent Judge in his order dated August 28, 1975.
In view thereof, petitioner now questions said order by way of
the present petition alleging in the main that said respondent
Judge capriciously and whimsically abused his discretion in not
granting the motion for issuance of certificate of satisfaction of
judgment for the following reasons: (1) that there was already
a full satisfaction of the judgment before the auction sale was
conducted with the deposit made to the Ex-Officio Sheriff in
the amount of P63,000.00 consisting of P50,000.00 in Cashier’s
Check and P13,130.00 in cash; and (2) that the auction sale was
invalid for lack of proper notice to the petitioner and its counsel
when the Ex-Officio Sheriff postponed the sale from January
15, 1975 to January 16, 1975 contrary to Section 24, Rule 39
of the Rules of Court. On November 10, 1975, the Court issued
a temporary restraining order enjoining the respondent Ex-
Officio Sheriff from delivering the personal properties subject
of the petition to Ricardo A. Tong in view of the issuance of the
“Sheriffs Certificate of Sale.”
We find the petition to be impressed with merit.
The main issue to be resolved in this instance is as
to whether or not the private respondent can validly refuse
acceptance of the payment of the judgment obligation made by
the petitioner consisting of P50,000.00 in Cashier’s Check and
P13,130.00 in cash which it deposited with the Ex-Officio Sheriff
before the date of the scheduled auction sale. In upholding
private respondent’s claim that he has the right to refuse
payment by means of a check, the respondent Judge cited the
following:
Section 63 of the Central Bank Act:

“Sec. 63. Legal Character. — Checks representing


deposit money do not have legal tender power and their
acceptance in payment of debts, both public and private,
is at the option of the creditor: Provided, however, That a
check which has been cleared and credited to the account
of the creditor shall be equivalent to a delivery to the

257
Art. 1249 OBLIGATIONS

creditor in cash in an amount equal to the amount credited


to his account.”
Article 1249 of the New Civil Code:

“Art. 1249. The payment of debts in money shall be


made in the currency stipulated, and if it is not possible to
deliver such currency, then in the currency which is legal
tender in the Philippines.
The delivery of promissory notes payable to order, or bills
of exchange or other mercantile documents shall produce the
effect of payment only when they have been cashed, or when
through the fault of the creditor they have been impaired.
In the meantime, the action derived from the original
obligation shall be held in abeyance.’’
Likewise, the respondent Judge sustained the contention
of the private respondent that he has the right to refuse payment
of the amount of P13,130.00 in cash because the said amount is
less than the judgment obligation, citing the following Article of
the New Civil Code:
“Art. 1248. Unless there is an express stipulation to
that effect, the creditor cannot be compelled partially to
receive the presentations in which the obligation consists.
Neither may the debtor be required to make partial
payment.
However, when the debt is in part liquidated and
in part unliquidated, the creditor may demand and the
debtor may effect the payment of the former without
waiting for the liquidation of the latter.”
It is to be emphasized in this connection that the check
deposited by the petitioner in the amount of P50,000.00 is
not an ordinary check but a Cashier’s Check of the Equitable
Banking Corporation, a bank of good standing and reputation.
As testified to by the Ex-Officio Sheriff with whom it has been
deposited, it is a certified crossed check. It is a well-known
and accepted practice in the business sector that a Cashier’s
Check is deemed as cash. Moreover, since the said check had
been certified by the drawee bank by the certification, the funds
represented by the check are transferred from the credit of the
maker to that of the payee or holder, and for all intents and
purposes, the latter becomes the depositor of the drawee bank,
with rights and duties of one in such situation. Where a check
is certified by the bank on which it is drawn, the certification

258
EXTINGUISHMENT OF OBLIGATIONS Art. 1249
Payment or Performance

is equivalent to acceptance. Said certification “implies that


the check is drawn upon sufficient funds in the hands of the
drawee, that they have been set apart for its satisfaction, and
that they shall be so applied whenever the check is presented
for payment. It is an understanding that the check is good then,
and shall continue to be good, and this agreement is as binding
on the bank as its notes in circulation, a certificate of deposit
payable to the order of the depositor, or any other obligation it
can assume. The object of certifying a check, as regards both
parties, is to enable the holder to use it as money.’’ When the
holder procures the check to be certified, “the check operates as
an assignment of a part of the funds to the creditors.” Hence, the
exception to the rule enunciated under Section 63 of the Central
Bank Act to the effect “that a check which has been cleared
and credited to the account of the creditor shall be equivalent
to a delivery to the creditor in cash in an amount equal to
the amount credited to his account” shall apply in this case.
Considering that the whole amount deposited by the petitioner
consisting of Cashier’s Check of P50,000.00 and P13,130.00 in
cash covers the judgment obligation of P63,000.00 as mentioned
in the writ of execution, then, We see no valid reason for the
private respondent to have refused acceptance of the payment
of the obligation in his favor. The auction sale, therefore, was
uncalled for. Furthermore, it appears that on January 17, 1975,
the Cashier’s Check was even withdrawn by the petitioner and
replaced with cash in the corresponding amount of P50,000.00 on
January 27, 1975 pursuant to an agreement entered into by the
parties at the instance of the respondent Judge. However, the
private respondent still refused to receive the same. Obviously,
the private respondent is more interested in the levied properties
than in the mere satisfaction of the judgment obligation. Thus,
petitioner’s motion for the issuance of a certificate of satisfaction
of judgment is clearly meritorious and the respondent Judge
gravely abused his discretion in not granting the same under
the circumstances.
In view of the conclusion reached in this instance, We find
no more need to discuss the ground relied in the petition.
It is also contended by the private respondent that
appeal and not a special civil action for certiorari is the proper
remedy in this case, and that since the period to appeal from
the decision of the respondent Judge has already expired, then,
the present petition has been filed out of time. The contention is
untenable. The decision of the respondent Judge in Civil Case
No. 250 (166) has long become final and executory and so, the

259
Art. 1249 OBLIGATIONS

same is not being questioned herein. The subject of the petition


at bar as having been issued in grave abuse of discretion is the
order dated August 28, 1975 of the respondent Judge which
was merely issued in execution of the said decision. Thus, even
granting that appeal is open to the petitioner, the same is not
an adequate and speedy remedy for the respondent Judge had
already issued a writ of execution.
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered:
1. Declaring as null and void the order of the respondent
Judge dated August 28, 1975;
2. Declaring as null and void the auction sale conducted
on January 16, 1975 and the certificate of sale issued pursuant
thereto;
3. Ordering the private respondent to accept the
sum of P63,130.00 under deposit as payment of the judgment
obligation in his favor;
4. Ordering the respondent Judge and respondent
Ex-Officio Sheriff to release the levied properties to the herein
petitioner.
The temporary restraining order issued is hereby made
permanent.
Costs against the private respondent.
SO ORDERED.

Idem; id. — Exceptions. — It must be noted, however, that


under the law there are two cases when the delivery produces the
effect of a valid payment. They are:
(1) When the document has been cashed. This case is
applicable to a negotiable paper or document executed by either a
third person or the debtor himself and delivered by said debtor to the
creditor.94 Thus, where the debtor deposited a manager’s check with
the Clerk of Court in payment of a certain indebtedness pursuant
to a court order, and the latter indorsed the check to the Provincial
Treasurer, who deposited it with the Philippine National Bank and
the Bank honored the check and placed the amount thereof to the

94
Compania General vs. Molina, 5 Phil. 142.

260
EXTINGUISHMENT OF OBLIGATIONS Art. 1250
Payment or Performance

credit of the Provincial Treasurer, it was held that the effect of these
facts, in contemplation of law, was the same as if the aforementioned
amount had been deposited in cash with the Clerk of Court, for said
sum thereby became available to him in cash.95
(2) When it had been impaired through the fault of the
creditor. This is applicable only to a paper or document executed
by a third person and delivered by the debtor to the creditor.96
Thus, where a bill of exchange was delivered to the plaintiff by
the defendant, and subsequently, upon maturity it was dishonored
by the drawee because the signature thereto was a forgery, the
negligence of the plaintiff in not protesting the nonpayment resulted
in the impairment of the value of the bill of exchange because of the
loss of the right to proceed against other parties who might be held
liable; consequently, the defendant can no longer be held liable.97

Art. 1250. In case an extraordinary inflation or deflation


of the currency stipulated should supervene, the value of the
currency at the time of the establishment of the obligation
shall be the basis of payment, unless there is an agreement
to the contrary.98

Effect of Extraordinary Inflation or Deflation. — Accord-


ing to Dean Capistrano, the above article was formulated by the
Code Commission in view of the lessons learned in the last war,
when inflation of currency in the Philippines was such that the price
of a cavan of rice rose to P12,000. The Commission felt that in the
event of another war resulting in extraordinary inflation, the juridi-
cal relations of creditor and debtor should be equitably adjusted.99
Consequently, the basis of payment, according to the Code, would
be the value of the currency at the time of the establishment of the
obligation.100
Extraordinary inflation or deflation may be said to be that
which is unusual or beyond the common fluctuation in the value

95
Golez vs. Camara, 101 Phil. 363.
96
Compania General vs. Molina, 5 Phil. 142.
97
Quiros vs. Tan Guinlay, 5 Phil. 675.
98
New provision.
99
3 Capistrano, Civil Code, 1950 Ed., p. 189; Report of the Code Commission,
pp. 132-133.
100
Art. 1250, Civil Code.

261
Art. 1250 OBLIGATIONS

of the currency, which the parties could not have reasonably


foreseen or which was manifestly beyond their contemplation at
the time when the obligation was established. (4 Tolentino 284.) By
extraordinary inflation or deflation of the currency is understood
to be any uncommon decrease or increase in the purchasing power
of the currency which could not have been reasonably foreseen. (3
Capistrano 189.)
Analyzing the above definitions, it is clear that in order that
there will be an extraordinary inflation or deflation of the currency
within the meaning of Art. 1250 of the Code, it is essential that the
following requisites must be present: (1) there must be a decrease or
increase in the purchasing power of the currency which is unusual
or beyond the common fluctuation in the value of said currency;
and (2) such decrease or increase could not have been reasonably
foreseen or was manifestly beyond the contemplation of the parties
at the time of the establishment of the obligation.
The following is a good example: In 1955, A leased a house and
lot to B at a monthly rental of P500 for a period of 25 years. An option
to buy the property was given to B for the same period with the
rentals already paid constituting a part of the purchase price which
the parties fixed at an amount equivalent to the aggregate rentals for
25 years. May A now demand for an adjustment of the rent and the
purchase price on the ground that there is an extraordinary inflation
supervening? It is submitted that he may. We believe that both of
the requisites mentioned above are present in the instant case. We
can very well take notice of the fact that the purchasing power of the
Philippine peso now is much less than its purchasing power in 1955.
As a matter of fact, in 1955, the official rate of exchange between the
Philippine peso and the American dollar was still two to one (2:1),
while today, it is twenty point five to one (20.5:1). Certainly, this
development could not have been foreseen by the contracting parties
in 1955.
It would have been different had the above contract been
perfected in, let us say, 1965. The decline in the purchasing power
of the Philippine peso in such case cannot be considered very great
or extraordinary. In 1965, the official rate of exchange between the
peso and the dollar was already four to one (4:1), although the black
market quotation was about five point seventy-five is to one (5.75:1).
Today, the rate of exchange is twenty point five to one (20.5:1).

262
EXTINGUISHMENT OF OBLIGATIONS Art. 1250
Payment or Performance

Besides, the tendency of the gradual decline of the purchasing power


of the peso was not only foreseeable but even evident in 1965. Even
then, economists were speaking of the possibility of devaluation. A,
in the example given, would not have any basis for demanding for an
adjustment of the rent and the purchase price.
It must be noted that the rule enunciated in Art. 1250 is
applicable only to contractual obligations; consequently, it can not
be applied to obligations arising from torts. Thus, in Velasco vs.
Manila Electric Co. (42 SCRA 556), the Supreme Court held that
the employment of the words “extraordinary inflation or deflation of
the currency stipulated” clearly shows that the legal rule envisages
contractual obligations where a specific currency is selected by the
parties as the medium of payment.
Furthermore, note that the law does not say that the value of
the currency at the time of the establishment of the obligation shall
be the amount to be paid; it merely says that it shall be the basis
of payment. Hence, the courts will be given some latitude in fixing
the amount to be paid by the debtor to the creditor with the value
of the currency at the time when the obligation was established or
constituted as basis, unless of course there is an agreement to the
contrary.
Idem; War-time obligations. — Because of the lack of
statutory provisions under the old law which would regulate the
basis of payment in case of extraordinary inflation or deflation of
the currency, one of the most vexing problems which confronted our
courts after the liberation of the Philippines was the question of
payment of obligations incurred during the Japanese occupation. It
was not a question of validity of payment because the obligation was
not yet paid, nor a question of the currency in which the payment
was to be made because the law was quite definite with respect to
that point. It is evident that if the war-time obligation contained a
stipulation to the effect that payment shall be made in a definite
currency other than Philippine currency or Japanese military notes,
the payment shall have to be made in the currency stipulated in
accordance with the provisions of the first paragraph of Art. 1170
of the old Civil Code (now Art. 1249 of the new) which was the law
then in force. It is also evident that if the war-time obligation did
not contain any stipulation with regard to the currency in which
payment shall be made, or if it did, it was to the effect that payment

263
Art. 1250 OBLIGATIONS

shall be made in either Philippine currency or Japanese military


notes, payment shall have to be made in currency which is legal
tender in the Philippines in accordance again with the provision of
the first paragraph of Art. 1170 of the old Code (now Art. 1249 of
the new). The question was with respect to the amount that had to
be paid by the obligor or debtor considering the fact that Japanese
military notes were no longer legal tender after the liberation of
the Philippines, and consequently, the obligation had to be paid
in “genuine” or ordinary Philippine currency. Shall the amount be
computed in accordance with the rate of one Philippine peso for each
peso due in Japanese military notes or shall the amount be adjusted
in accordance with the Ballantyne Scale of Values?
Idem; id. — The Ballantyne Schedule. — The Ballantyne
Scale of Values was submitted by Dr. D.L. Ballantyne to the
President of the Philippines in his capacity as economic adviser of
the Commonwealth Government. It contained a recommendation
for the adoption of measures which were greatly needed to solve
the problem created by transactions made during the Japanese
occupation and to hasten the economic recovery of the country. The
Supreme Court, the Court of Appeals, and the different Courts of
First Instance in the country have repeatedly applied its provisions
in numerous cases. It is, therefore, an official document whose
publication constituted a leading event of general interest and
whose provisions are widely known and have played an important
part in the contemporary political history of the country, of which
courts of justice could take judicial cognizance.101
The report of Dr. Ballantyne which contains the Scale of Values
is as follows:

“Our own preliminary studies of this question which have


taken into account the cost of living index for the occupation
period, real estate values, black market quotations for the
Commonwealth peso and income payments expressed in
Japanese currency, indicate that a generally equitable scale of
values for the Commonwealth peso in terms of the Japanese
peso, is as follows:

101
Estrada vs. Noble, CA, 49 Off. Gaz. 139.

264
EXTINGUISHMENT OF OBLIGATIONS Art. 1250
Payment or Performance

1941 1944
December P1.00 January P4.00
1942 P1.00 February 5.00
1943 March 6.00
January 1.05 April 9.00
February 1.10 May 12.00
March 1.15 June 15.00
April 1.20 July 20.00
May 1.25 August 25.00
June 1.30 September 30.00
July 1.40 October 40.00
August 1.50 November 60.00
September 1.60 December 90.00
October 1.70 1945
November 1.80 January 120.00
December 2.50 February None

Submitted by D.C. BALLANTYNE


Special Bank Adviser to the President.’’

It must, however, be noted that except when sheer necessity


demands it, because of the absence of other evidence, there is every
reason for not applying the Ballantyne schedule. The said schedule
assumes that there was only one rate of equivalence throughout
the islands, when it is a well-known fact that the conversion rate
changed from place to place. Thus, in cities where supply was scarce,
the purchasing power of the military notes was lower than in the
rural areas where food was more easily obtainable. Such schedule,
therefore, must yield to proof of actual transactions.102
Idem; id.; id. — Application. — From an analysis of court
decisions it is evident that in order that the Ballantyne Scale
of Values shall be applicable, it is essential that the following
requisites must concur; first, the obligation should have been
contracted during the Japanese occupation; second, it could have
been paid during the Japanese occupation; and third, it could have

102
Barcelon vs. Arambulo, CA, 48 Off. Gaz. 3976.

265
Art. 1250 OBLIGATIONS

been paid with Japanese military notes.103 Consequently, where the


debtor borrowed, let us say, P90,000 in Japanese military notes in
December, 1944, from the creditor and executed a promissory note
promising to pay the amount “within a period of one year therefrom,”
the Ballantyne Schedule is applicable; hence, he can be compelled
to pay only P1,000 in accordance with the Ballantyne Conversion
Table.104 But where the debtor executed a promissory note promising
to pay the amount “one year after Oct. 5, 1944,” or “within 30 days
after the expiration of one year from June 24,1944,” or “four years
after date,” or within “five years from Jan. 1, 1946,” or within “one
year from Aug. 7, 1944,” the Ballantyne Schedule is not applicable;
hence, the debtor can be compelled to pay in Philippine currency,
peso for peso.105

Fernandez, et al. vs. Nat. Insurance Co. of the Phil.


105 Phil. 59

Juan Fernandez’ life was insured by the defendant


company for P10,000 on July 15, 1944, with his mother and
sisters as beneficiaries. He died on Nov. 2, 1944. In 1952, the
beneficiaries claimed the value of the policy. Proof of death was
approved by the company on July 9, 1954. The question now is
— when did the obligation of the company to pay the proceeds of
the value of the policy accrue — did it accrue upon the death of
the insured or upon receipt and approval of proof of death of the
insured? The Supreme Court held:
“In life insurance contracts, the policy matures either
upon expiration of the term set forth therein, in which case,
its proceeds are immediately payable to the insured himself,
or upon his death occurring at any time prior to the expiration
of the term, in which case, its proceeds are payable to the
beneficiaries, within 60 days after filing of proof of death.

103
See Jimenez vs. Bucoy, 103 Phil. 40; Valero vs. Sycip, 103 Phil. 1150; Fernan-
dez, et al. vs. Nat. Ins. Co. of the Phil., 105 Phil. 59.
104
Ang Lam vs. Peregrina, 92 Phil. 506. To the same effect: Hilado vs. De la
Costa, 46 Off. Gaz. 5472; Soriano vs. Abalos, 47 Off. Gaz. 168; De Asis vs. Agdamag,
90 Phil. 249; Samson vs. Andal, 94 Phil. 402; Aguilar vs. Miranda, 113 Phil. 515;
Server vs. Car, 18 SCRA 728.
105
Roño vs. Gomez, 46 Off. Gaz. 339; Gomez vs. Tabia, 47 Off. Gaz. 339; Garcia
vs. De los Santos, 49 Off. Gaz. 4830; Yay vs. Boltron, 100 Phil. 47; Stemberg vs. Solo-
mon, 102 Phil. 995; Dizon vs. Arrastia, 113 Phil. 476; Quiogue vs. Bautista, Generosa
vs. Court of Appeals, 12 SCRA 619; Server vs. Car, 18 SCRA 728.

266
EXTINGUISHMENT OF OBLIGATIONS Art. 1251
Payment or Performance

(Sec. 91-A, Insurance Law.) Here, the policy matured upon the
death of the insured in 1944, and the obligation of the insurer
to pay arose as of that date. The sixty-day period fixed by law
within which to pay is merely procedural in nature. It is the
happening of the suspensive condition of death that matures
a life insurance policy and not the filing of the proof of death.
Since the insured died during the Japanese occupation, the
proceeds of his policy should, therefore, be adjusted accordingly,
for ‘the rule is already settled that where the debtor could have
paid his obligation at any time during the Japanese occupation,
payment after liberation must be adjusted in accordance with
the Ballantyne Schedule.’ ’’

Art. 1251. Payment shall be made in the place designated


in the obligation.
There being no express stipulation and if the undertaking
is to deliver a determinate thing, the payment shall be made
wherever the thing might be at the moment the obligation
was constituted.
In any other case, the place of payment shall be the
domicile of the debtor.
If the debtor changes his domicile in bad faith or after
he has incurred in delay, the additional expenses shall be
borne by him.
These provisions are without prejudice to venue under
the Rules of Court.106

Place of Payment. — If there is no express designation or


stipulation in the obligation with respect to the place where payment
shall be made, the following rules are applicable:
(1) If the obligation is to deliver a determinate thing, the
payment shall be made at the place where the thing might be at the
time the obligation was constituted.107
(2) In any other case, the payment shall be made at the
domicile of the debtor. This rule is intended to govern unilateral
obligations. Reciprocal obligations are governed by special rules. As

106
Art. 1171, Spanish Civil Code, in modified form.
107
Art. 1251, Civil Code.

267
Art. 1252 OBLIGATIONS

a corollary, if the debtor changes his domicile in bad faith or after he


has incurred in delay, it is logical that additional expenses shall be
borne by him.108

Subsection 1. — Application of Payment

Art. 1252. He who has various debts of the same kind


in favor of one and the same creditor, may declare at the
time of making the payment, to which of them the same
must be applied. Unless the parties so stipulate, or when
the application of payment is made by the party for whose
benefit the term has been constituted, application shall not
be made as to debts which are not yet due.
If the debtor accepts from the creditor a receipt in which
an application of the payment is made, the former cannot
complain of the same, unless there is a cause for invalidating
the contract.109
Concept. — Application of payment110 may be defined as the
designation of the debt to which the payment must be applied when
the debtor has several obligations of the same kind in favor of the
same creditor.111
Requisites. — In order that there will be an application of
payment, it is essential that the following requisites must concur:
first, there must be only one debtor and only one creditor; second,
there must be two or more debts of the same kind; third, all of the
debts must be due; and fourth, the amount paid by the debtor must
not be sufficient to cover the total amount of all the debts.
Idem; First requisite. — The requirement that there must be
only one debtor does not militate against the possibility of extending
the rules on application of payment to solidary obligations, because

108
Ibid.
109
Art. 1172, Spanish Civil Code, in modified form.
110
Under the Civil Code, there are actually four special forms of payment. They
are: (1) application of payment (Arts. 1252-1254); (2) dation in payment (Art. 1245);
(3) payment by cession (Art. 1255); and (4) tender of payment and consignation (Arts.
1256-1261). Strictly speaking, however, application of payment, by its very nature, is
not a special form of payment.
111
8 Manresa, 6th Ed., Bk. 1, p. 598.

268
EXTINGUISHMENT OF OBLIGATIONS Art. 1252
Application of Payment

the solidary debtor who paid may have obligations other than the
solidary obligation in favor of the creditor to whom payment is made.
Neither does the requirement that there must be only one creditor
militate against extending the rules on application of payment to a
case in which a person is indebted at the same time in separate and
demandable sums to a partnership and to the managing partner of
the partnership. As a matter of fact, Art. 1792 provides:

“If a partner authorized to manage collects a demandable


sum, which was owed to him in his own name, from a person who
owed the partnership another sum also demandable, the sum
thus collected shall be applied to the two credits in proportion to
their amounts, even though he may have given a receipt for his
own credit only; but should he have given it for the account of
the partnership credit the amount shall be fully applied to the
latter.
“The provisions of this article are understood to be without
prejudice to the right granted to the debtor by Article 1252, but
only if the personal credit of the partner should be more onerous
to him.”

It is, therefore, apparent that the rule stated in the second


paragraph of the above article constitutes an exception to the rule
that in applications of payment it is essential that there must be only
one creditor, since it is a well-known principle that a partnership
has a juridical personality which is separate and distinct from that
of each of the partners.
Idem; Second requisite. — In applications of payment it is
not only essential that there must be only one debtor and only one
creditor, but that the debtor must have two or more debts in favor
of the same creditor. Hence, the rules on application of payment
cannot apply to a guarantor or surety whose liability is extended
or confined only to a particular obligation. Therefore, when such
guarantor or surety is made to pay in default of or solidarily with
the principal debtor, whatever payments may be made cannot be
applied to those obligations for which he is not responsible either
subsidiarily or solidarily.112

112
Socony Vacuum Corp. vs. Miraflores, 67 Phil. 304.

269
Art. 1252 OBLIGATIONS

It is also essential that each of the debt must be of identical or


homogenous specie. Thus, if the debtor has several monetary
obligations in favor of one and the same creditor and he pays a certain
sum to the latter which is not sufficient to satisfy the aggregate sum
of all the obligations, the rules on application of payment can be
applied, but where some of the obligations consist in the payment of
money and the rest in the delivery of things other than money, such
rules can no longer be applied. There is, however, a case in which
even if some of the obligations are not of identical specie at the time
of their constitution, yet application of payment is possible if, at the
time the designation or application is made, such obligations had
already been converted into obligations to indemnify with damages
by reason of breach or nonfulfillment.113
Idem; Third requisite. — As a general rule, application of
payment is possible only when all of the debts are due. There are
two exceptions to this rule. They are: (1) when there is a stipulation
to the contrary; and (2) the application of payment is made by the
party for whose benefit the term or period has been constituted.114
The second exception must always be understood in relation to
the provision of Art. 1196. Thus, if from the tenor of the obligation
which is not yet due or from other circumstances, it should appear
that the term or period is for the benefit of the debtor (or the creditor
in a proper case) and there are other obligations of the said debtor in
favor of the same creditor which are already due, the payment made
may be applied by the said debtor to the obligation which is not yet
due. The exception is logical because if the term or period is for his
benefit, if he so desires, he may renounce the benefit of such term or
period by performing his obligation in advance.
Idem; Fourth requisite. — The requirement that the amount
paid by the debtor must not be sufficient to cover the total amount
of all the debts is indispensable, because, otherwise, there would be
no necessity of designating the debt or debts to which the payment
shall be applied.
Right of Debtor To Make Application. — It is apparent
from the provisions of the first paragraph of Art. 1252 that the right
to designate the debt to which the payment shall be applied belongs

113
8 Manresa, 5th Ed., Bk. 1, pp. 598-599.
114
Art. 1252, par. 1, Civil Code.

270
EXTINGUISHMENT OF OBLIGATIONS Art. 1252
Application of Payment

primarily to the debtor. It must be noted, however, that the right is


available to him only at the time when payment is made. If he does
not exercise such right, the same is extinguished and the application
would then be governed by the provisions of Art. 1254, unless the
creditor, in the meantime, makes the application by giving to the
debtor, who accepts it, a receipt in which application of the payment
is made.115
Idem; Exception. — If the debtor does not avail himself
of the right to designate the debt to which the payment shall be
applied, and subsequently, he accepts from the creditor a receipt
in which an application of payment is made, the former cannot
complain of the same, unless there is a cause for invalidating the
contract.116 Application of payment by the debtor is, therefore, the
general rule, while application of payment by the creditor is the
exception. However, to say that the application is made by the
creditor is not exactly accurate, because what such creditor merely
does is to propose the application by giving to the debtor a receipt
in which the application of payment is made subject to the express
or tacit approval of the said debtor. Consequently, the debtor may
either accept or reject the application. Once the receipt is accepted,
the application of payment made in such receipt can no longer
be impugned,117 unless there is a cause, such as mistake, force,
intimidation, undue influence or fraud, which will invalidate the
application. It is clear that the word “contract” used in the law can
only refer to the act whereby the debtor accepts the receipt in which
the application is made from the creditor, and not to the contract
from which the obligation to which the payment is applied arises.
Idem; Time when right is exercised. — From what had
been stated, it is clear that as far as the debtor is concerned, the
right to make an application of payment must be exercised at the
time payment is made.118 If he fails to exercise the right, the initiative
is taken away from him and such application may then be made by
the creditor who may exercise the right even after the delivery of
the receipt acknowledging payment, provided, of course, that such

115
8 Manresa, 5th Ed., Bk. 1, pp. 599-600.
116
Art. 1252, par. 2, Civil Code.
117
Garcia vs. Enriguez, 71 Phil. 423.
118
Bachrach vs. Golingco, 39 Phil. 912; Powell vs. Phil. National Bank, 54 Phil.
34.

271
Arts. 1253-1254 OBLIGATIONS

application is approved by the debtor. In the words of Manresa,


“the clear basis of this difference is that while the debtor decides for
himself, the creditor only proposes to the debtor who may or may not
agree.’’119

Art. 1253. If the debt produces interests, payment of the


principal shall not be deemed to have been made until the
interests have been covered.120
Limitation upon Right To Apply Payment. — There has
been some doubt as to whether the rule stated in the above article
is suppletory or obligatory to the debtor. Manresa believes that the
better view seems to be in favor of the latter because it is more in
consonance with justice. Consequently, the creditor may impugn
any application of payment which is contrary to the above rule.121
Our Supreme Court, however, sustains the contrary view. Thus, in
two recent cases, the Court held that the above provision applies
only in the absence of a verbal or written agreement to the contrary;
in other words, it is merely directory, and not mandatory.122

Art. 1254. When the payment cannot be applied in


accordance with the preceding rules, or if application cannot
be inferred from other circumstances, the debt which is most
onerous to the debtor, among those due, shall be deemed to
have been satisfied.
If the debts due are of the same nature and burden, the
payment shall be applied to all of them proportionately.123

Legal Application of Payment. — It must be noted in the


first place that the rules stated in Art. 1254 are applicable only
when payment cannot be applied in accordance with the rules
previously stated, or if the application cannot be inferred from other
circumstances. Thus, according to Dean Capistrano, if payment of

119
8 Manresa, 5th Ed., Bk. 1, p. 600.
120
Art. 1173, Spanish Civil Code.
121
8 Manresa, 5th Ed., Bk. 1, p. 601.
122
Baltazar vs. Lingayen Gulf Elec. Power Co.; Rose vs. Lingayen Elec. Power
Co., Baltazar vs. Acena, 14 SCRA 522; Magdalena Estate, Inc. vs. Rodriguez, 18
SCRA 967.
123
Art. 1174, Spanish Civil Code, in modified form.

272
EXTINGUISHMENT OF OBLIGATIONS Arts. 1253-1254
Application of Payment

one of the debts has been demanded or if different places for payment
have been designated in the contract and payment has been made in
one of those places, it is evident that an application can be deduced
or inferred, in which case, the article is not applicable.124
Idem; When debts are not of same burden. — When the
debts due are not of the same burden, the rule is that the debt
which is most onerous to the debtor shall be deemed to have been
satisfied.125 From judicial decisions and works of commentators, the
following rules may, therefore, be stated:
(1) Where there are various debts which are due and they
were incurred at different dates, the oldest are more onerous to the
debtor than the more recent ones.126
(2) Where one debt bears interest and the other does not,
even if the latter was incurred at an earlier date, the first is more
onerous to the debtor.127 As between two debts which bear interest,
the debt with a higher rate of interest is more onerous to the debtor.
(3) Where one debt is secured and the other is not, the first is
more onerous to the debtor.128 However, “where in a bond the debtor
and surety have bound themselves solidarily, but limiting the
liability of the surety to a lesser amount than that due the principal
debtor, any such payment as the latter may have made on account
of such obligation must be applied first to the unsecured portion of
the debt, for, as regards the principal debtor, the obligation is more
onerous as to the amount not secured.’’129
(4) Where the debtor is bound as principal in one obligation
and as guarantor or surety in another, the former is more onerous to
him.
(5) When the debtor is bound as a solidary debtor in one
obligation and as the sole debtor in another, the former is more
onerous to him.

124
3 Capistrano, Civil Code, 1950 Ed., p. 193.
125
Art. 1254, par. 1, Civil Code.
126
Philippine National Bank vs. Veraguth, 50 Phil. 353.
127
Menzi & Co. vs. Quing Chuan, 69 Phil. 46.
128
Sanz vs. Lavin, 6 Phil. 299; Traders Insurance & Surety Co. vs. Dy Eng Giok,
104 Phil. 806.
129
Hongkong & Shanghai Bank vs. Aldanese, 48 Phil. 390.

273
Arts. 1253-1254 OBLIGATIONS

(6) Within a solidary obligation, the share which corresponds


to a solidary debtor would be most onerous to him.
(7) Where one obligation is for indemnity and the other is by
way of penalty, the former is more onerous to the debtor.
(8) Where one debt is liquidated and the other is not, the
former is more onerous to the debtor.130

Problem — The debtor owes his creditor several debts, all


of them due, to wit: (1) an unsecured debt; (2) a debt secured
with a mortgage of the debtor’s property; (3) a debt bearing
interest; (4) a debt in which the debtor is solidarily liable with
another.
Partial payment was made by the debtor. Assuming that
the debtor had not specified the debts to which the payment
should be applied and, on the other hand, the creditor had not
specified in the receipt he issued the application of payment,
state the order in which the payment should be applied and your
reasons therefore. (1982 Bar Problem)
Answer — In this case, according to the Civil Code, the
debt, which is most onerous to the debtor, among those due,
shall be deemed satisfied.
Analyzing the four debts stated in the problem, the most
onerous is No. 4, the second most onerous is No. 2, the third most
onerous is No. 3, and the least onerous is No. 1. Consequently,
the payment should be applied in that order.
(Note: The above answer is based on Art. 1254 of the Civil
Code, and on decided cases and commentaries of recognized
commentators.)

Idem; When debts are of same burden. — If the debts which


are due are of the same nature and burden, the rule is that the
payment shall be applied to all of them pro rata or proportionately.131
It is evident that this rule can also be applied to a case in which it
is fairly impossible to determine which of the debts which are due is
the most onerous or burdensome to the debtor by applying any of the
rules stated in the first paragraph of the article.

130
8 Manresa, 5th Ed., Bk. 1, pp. 602-604; 4 Tolentino, Civil Code, 1956 Ed., pp.
293-294.
131
Art. 1254; par. 2, Civil Code.

274
EXTINGUISHMENT OF OBLIGATIONS Art. 1255
Payment by Cession

Subsection 2. — Payment by Cession

Art. 1255. The debtor may cede or assign his property


to his creditors in payment of his debts. This cession, unless
there is stipulation to the contrary, shall only release the
debtor from responsibility for the net proceeds of the thing
assigned. The agreements which, on the effect of the cession,
are made between the debtor and his creditors shall be
governed by special laws.132
Concept. — Cession or assignment may be defined as a special
form of payment whereby the debtor abandons all of his property for
the benefit of his creditors in order that from the proceeds thereof
the latter may obtain payment of their credits.133
Requisites. — In order that the debtor can avail of this form
of payment, it is essential that the following requisites must concur:
first, plurality of debts; second, partial or relative insolvency of
the debtor; and third, acceptance of the cession by the creditors.134
In case the creditors do not accept the cession or assignment, a
similar result may be obtained by proceeding in accordance with the
Insolvency Law.135
Kinds. — Payment by cession may be either contractual
or judicial. The cession referred to in Art. 1255 of the Code is
contractual, while the cession which is regulated by the Insolvency
Law, and which may be voluntary or involuntary, is judicial.
Distinguished from Dation in Payment. — Payment by
cession must not be confused with dation in payment (dación en
pago). The two may be distinguished from each other as follows:
(1) As to number of parties: While in dacion en pago there
may be only one creditor, in payment by cession plurality of creditors
is essential.
(2) As to financial condition of parties: While in dación en
pago the debtor is not necessarily in a state of financial difficulty,

132
Art. 1175, Spanish Civil Code, in modified form.
133
8 Manresa, 5th Ed., Bk. 1, p. 606.
134
Ibid., pp. 605-606.
135
Act No. 1956, as amended.

275
Art. 1256 OBLIGATIONS

in payment by cession the debtor is in a state of partial or relative


insolvency.
(3) As to object: While in dación en pago what is delivered by
the debtor is merely a thing to be considered as the equivalent of the
performance of the obligation, in payment by cession what is ceded
by the debtor is the universality of all of his property.
(4) As to effect: While in dación en pago the payment
extinguishes the obligation to the extent of the value of the thing
delivered either as agreed upon or as may be proved, unless the
silence of the parties signifies that they consider the delivery of
the thing as the equivalent of the performance of the obligation, in
payment by cession the effect is merely to release the debtor for
the net proceeds of the things ceded or assigned, unless there is a
contrary intention.136
Effect. — It is apparent from the provision of Art. 1255, that, in
the absence of a contrary stipulation, the assignment or abandonment
by the debtor of all his property to the creditors shall only release
him from responsibility for the net proceeds of the property
assigned. Consequently, the extinguishment of his obligations will
only be partial. It must also be noted that the assignment does not
transfer the ownership of the things or objects to the creditors. What
is transmitted to the latter is only the possession of such things or
objects including their administration so that they can proceed with
the sale and from the proceeds thereof their respective credits are
then paid.137

Subsection 3. — Tender of Payment


and Consignation

Art. 1256. If the creditor to whom tender of payment has


been made refuses without just cause to accept it, the debtor
shall be released from responsibility by the consignation of
the thing or sum due.
Consignation alone shall produce the same effect in the
following cases:

136
8 Manresa, 5th Ed., Bk. 1, pp. 611-612; 3 Castan, 7th Ed., p. 257.
137
3 Castan, 7th Ed., p. 255.

276
EXTINGUISHMENT OF OBLIGATIONS Arts. 1257-1258
Tender of Payment and Consignation

(1) When the creditor is absent or unknown, or does


not appear at the place of payment;
(2) When he is incapacitated to receive the payment at
the time it is due;
(3) When, without just cause, he refuses to give a
receipt;
(4) When two or more persons claims the same right to
collect;
(5) When the title of the obligation has been lost.138
Art. 1257. In order that the consignation of the thing
due may release the obligor, it must first be announced to
the persons interested in the fulfillment of the obligation.
The consignation shall be ineffectual if it is not made
strictly in consonance with the provisions which regulate
payment.139
Art. 1258. Consignation shall be made by depositing the
things due at the disposal of judicial authority, before whom
the tender of payment shall be proved, in a proper case, and
the announcement of the consignation in other cases.
The consignation having been made, the interested
parties shall also be notified thereof.140

Concept. — Tender of payment consists in the manifestation


made by the debtor to the creditor of his decision to comply
immediately with his obligation. Consignation, on the other hand,
refers to the deposit of the object of the obligation in a competent
court in accordance with the rules prescribed by law after refusal or
inability of the creditor to accept the tender of payment.141
Distinctions. — Tender of payment and consignation may be
distinguished from each other as follows:
(1) Tender of payment is the antecedent of consignation; in
other words, while the first is the preparatory act, the second is

138
Art. 1176, Spanish Civil Code, in modified form.
139
Art. 1177, Spanish Civil Code.
140
Art. 1178, Spanish Civil Code.
141
3 Castan, 7th Ed., p. 252.

277
Arts. 1257-1258 OBLIGATIONS

the principal act which will produce the effects of payment of the
obligation.142 Thus, according to the Supreme Court:

“Tender of payment, even if valid, does not by itself


produce legal payment, unless it is completed by consignation.
“Tender of payment alone Is not a mode of extinguishing
obligations. Tender of payment in the Civil Code is treated as
subtitle in the section on Payment as a mode of extinguishing
obligations. But the subtitle is ‘Tender of Payment and
Consignation.’ And Article 1176 (now Art. 1258) provides that
after a valid tender of payment ‘the debtor shall be released
from responsibility by the consignation of the thing due.’ As
a complement Article 1180 (now Art. 1260) says ‘after the
consignation has been duly made, the debtor may petition the
judge to order the cancellation of the obligation.’ All of which
patently indicate that consignation must follow, supplement or
complete the tender of payment if discharge of the obligation is
to be obtained.
“ ‘Ofrecimiento de pago y consignación. — Consiste el
primero en una declaracion de voluntad dirigida al acreedor,
por la que el deudor manifiesta su firme decisión de cumplir
immediatamente la obligación; y la segunda en el depósito que
en forma legal hace el deudor de la cosa objecto de la obligación,
cuando el acreedor no quiere y no puede recibirla. Solo la
consignación es forma de pago. La oferta unicamente nos interesa
aqui en cuanto es un acto preparatorio de la consignatión.’
(Castan, Derecho Civil, Vol. 2, 521.)’’143

(2) Tender of payment is by its very nature extrajudicial in


character, while consignation is judicial.144
General Requisites of Consignation. — According to
Manresa, we must distinguish between the general requisites of
a valid consignation, or those relative to payment, and the special
requisites, or those arising from the very nature of consignation.145
The first refers to those requisites which we have already taken up
in connection with payment in general (Arts. 1232-1251), such as the

142
8 Manresa, 5th Ed., Bk. 1, p. 620.
143
Phil. National Bank vs. Relativo, 92 Phil. 203.
144
8 Manresa, 5th Ed., Bk. 1, p. 620.
145
Ibid., pp. 628-630.

278
EXTINGUISHMENT OF OBLIGATIONS Arts. 1257-1258
Tender of Payment and Consignation

person who pays, the person to whom payment is made, the object
of the obligation which must be paid or performed, and the time
when payment or performance becomes demandable; the second, on
the other hand, refers to the five requirements which are prescribed
by Art. 1256 to Art. 1258 of the Civil Code. Since consignation is a
special form of payment, it is but logical, in order that it will produce
all the effects of payment, that it must conform not only with all
of the special requirements prescribed by law, but also with all of
the requisites of a valid payment. Hence, according to the second
paragraph of Art. 1258: “The consignation shall be ineffectual if
it is not made in consonance with the provisions which regulate
payment.” Thus, where the amount remitted to the Clerk of Court
is in the form of a cashier’s check, the consignation must be deemed
invalid, since the law requires that in order that consignation shall
produce the effect of a valid payment, it must conform to the rules
regulating payment, and one such rule is that payment should be
made in legal tender.146

Special Requisites of Consignation. — In order that


consignation shall produce the effects of payment, it is essential that
certain special requirements prescribed by law must be complied
with. The debtor must show:
(1) That there is a debt due;
(2) That the consignation has been made either because the
creditor to whom tender of payment was made refused to accept the
payment without just cause, or because any of the causes stated by
law for effective consignation without previous tender of payment
exists;147
(3) That previous notice of the consignation had been given
to the persons interested in the fulfillment of the obligation;148
(4) That the thing or amount due had been placed at the
disposal of judicial authority;149

146
Villanueva vs. Santos, 67 Phil. 648; Arambulo vs. Court of Appeals, 97 Phil.
965.
147
Art. 1256, Civil Code.
148
Art. 1257, Civil Code.
149
Art. 1258, par. 1, Civil Code.

279
Arts. 1257-1258 OBLIGATIONS

(5) That after the consignation had been made, the persons
interested in the fulfillment of the obligation had been notified
thereof.150
Idem; First requisite. — Before consignation can produce
the effect of payment, it is essential that there must be a debt which
is due.151 Thus, where the plaintiff and defendant entered into a
contract whereby the latter was given the right to cancel the contract
upon payment of a certain sum, and subsequently, the latter tried
to avail himself of such right by making a formal tender of the
amount, it was held that it was not necessary for him to deposit the
amount with the Clerk of Court, since there is no debt which is due.
Consequently, the tender made by the defendant in good faith was
sufficient to cancel the contract.152
Idem; Second requisite. — In order that the consignation
will be effective, the general rule is that there must have been a
tender of payment made by the debtor to the creditor. It is, however,
required: (1) that the tender of payment must have been made prior
to the consignation; (2) that it must have been unconditional; and (3)
that the creditor must have refused to accept the payment without
just cause.153 The first requirement is self-explanatory; the second
and third, however, require some explanation. It is a rule that
the tender of payment, in order to constitute a valid tender, must
be unconditional in character. Thus, where the debtor tendered
a check for P5,000 to the creditor as payment of a debt of P600,
but the payee of said check was a third person who accompanied
him, it was held that the tender did not constitute a valid tender of
payment because it was conditional in the sense that, in offering the
check, the defendant-debtor practically told the plaintiff-creditor —
“Here is P600, but you must pay the remainder of P4,400 to the
payee.”154 Similarly, where the debtor tendered a check for P3,250 to
the creditor as payment of a debt conditioned upon the signing by
the latter of a motion to dismiss a complaint for legal separation, it
was also held that such tender of payment is not valid.155 However,

150
Art. 1258, par. 2, Civil Code.
151
Ponce de Leon vs. Syjuco, 90 Phil. 311.
152
Asturias Sugar Central vs. Pure Cane Molasses Co., 60 Phil. 255.
153
8 Manresa, 5th Ed., Bk. 1, pp. 620-621.
154
Phil. National Bank vs. Relativo, 92 Phil. 203.
155
Sy vs. Eufemio, 104 Phil. 1056.

280
EXTINGUISHMENT OF OBLIGATIONS Arts. 1257-1258
Tender of Payment and Consignation

where the check is sent to the debtor on condition that it is in full


satisfaction of a disputed claim of indebtedness and the creditor
retains the same and converts it into money, he is presumed to
have assented to the condition and to have accepted the compromise
offer, and a mere expression of dissatisfaction by the creditor with
the proposal cannot qualify the effects of actual use of the check.156
With respect to the third requirement, Manresa is of the opinion
that when the consignation is made, it is not necessary for the court
where the thing or the amount is deposited to determine whether
the refusal of the creditor to accept the same was with or without a
just cause. The reason is that the question will be resolved anyway
in a subsequent proceeding. Hence, the mere refusal of the creditor
to accept the tender of payment will be sufficient.157

Sy vs. Eufemio
104 Phil. 1056 (unrep.)

The records show that defendant and plaintiff, husband


and wife, had entered into a compromise agreement by virtue of
which the former undertook to pay to the latter P10,000 in cash
and P25,000 by installments within ten years, and the latter on
her part promised to move for the dismissal of a civil case for
support and a criminal case for bigamy which she had instituted
against the former. It was also agreed that both parties shall
waive whatever right of action, civil and criminal, they might
have against each other. This compromise agreement was
approved by the lower court. In spite of this agreement, plaintiff
subsequently brought an action for legal separation against the
defendant. In the course of the proceedings, defendant tendered
payment of P3,250 to the plaintiff. The latter refused to accept the
tender. The former then deposited the amount in the court, filing
a manifestation averring that because of plaintiff’s unjustifiable
refusal to accept the tender of payment which was made in
compliance with the compromise agreement, he is depositing
the amount pursuant to Arts. 1256 and 1258 of the Civil Code.
Plaintiff filed a reply, contending that she refused to accept
the tender because, in the first place, what was tendered was a
check, and in the second place, the tender was conditioned upon
the dismissal of the complaint for legal separation. In answer,
defendant alleged that for the past four years plaintiff had been

156
Araneta vs. Uy Tek, CA, 40 Off. Gaz. 28.
157
8 Manresa, 5th Ed., Bk. 1, pp. 620-621.

281
Arts. 1257-1258 OBLIGATIONS

receiving similar payments in check without any objection;


hence, she is now in estoppel. Consequently, the question to be
resolved in this appeal is whether or not the tender of payment
is valid for purposes of consignation. The Supreme Court held:
“A check intended to pay a debt, if refused by the creditor,
is not a valid tender of payment. The fact that in previous years
payment in check by the debtor was accepted by the creditor does
not place the latter in estoppel to prevent him from requiring
the former to pay his obligation in cash. And as the tender of
the check by the debtor was conditioned upon the signing by the
creditor of a motion to dismiss the complaint for legal separation,
the tender of the check for payment of the debt was not, as it
should be, unconditional. Consequently, its consignation in
court does not render it legal, valid and effective. Whether
the appellee under the terms of the compromise agreement is
bound to file such motion, and whether the waiver of whatever
action the parties might have against each other is lawful and
enforceable, are questions to be determined in the case for legal
separation and for that reason they cannot be taken up in this
appeal because the trial court has not passed upon them.”

Idem; id. — Exceptions. — There are five exceptions to the


rule that in order that the consignation shall produce the effects
of payment, it is essential that there must be a previous tender of
payment.158 They are: (1) when the creditor is absent or unknown, or
does not appear at the place of payment; (2) when he is incapacitated
to receive the payment at the time it is due; (3) when, without just
cause, he refuses to give a receipt; (4) when two or more persons
claim the right to collect; and (5) when the title of the obligation has
been lost.159
Idem; id. — Effect of valid tender of payment. — When a
valid tender of payment is made, the obligation is not extinguished,
unless it is completed by consignation. However, it has the effect of
exempting the debtor from payment of interest and/or damages.160
The suspension of the running of interest is governed by principles
which regard reality rather than technicality, substance rather than

158
For application of these exceptions — see Panganiban vs. Cuevas, 7 Phil. 477;
Banahaw vs. Dejarme, 55 Phil. 338; Salvante vs. Ubi Cruz, 88 Phil. 236.
159
Art. 1256, par. 2, Civil Code.
160
Phil. Nat. Bank vs. Relativo, 92 Phil. 203.

282
EXTINGUISHMENT OF OBLIGATIONS Arts. 1257-1258
Tender of Payment and Consignation

form. Good faith of the debtor should in simple justice excuse him
from paying interest after the offer was rejected.161
Idem; Third requisite. — It is also essential in order that the
consignation shall be effective that previous notice thereof had been
given to the persons interested in the fulfillment of the obligation.162
This requirement is separate and distinct from tender of payment
which precedes it. Tender of payment is a friendly and private act
manifested only to the creditor which by itself does not suggest
consignation which follows in case of unjust refusal of the creditor to
accept the payment; previous notice, on the other hand, is a formal
act manifested not only to the creditor, but also to other persons
interested in the fulfillment of the obligation directly announcing
the consignation which will be made as a result of the unjust refusal
of the creditor to accept the payment. Although separate and distinct
from each other, the procedure, as far as the debtor is concerned,
can be simplified by combining the two in a single act, which would
include principally the tender of payment and subsidiarily the
notice of consignation, unless the creditor accepts the payment.163
Even in this case it is necessary that notice shall be made to the
other parties interested in the fulfillment of the obligation, such as
a surety or guarantor or a solidary co-debtor.
Idem; Fourth requisite. — It is, of course, essential that
the thing or amount due must be placed at the disposal of judicial
authority.164 This requirement is complied with if the debtor
deposits the thing or amount, which the creditor had refused or
had been unable to accept, with the Clerk of Court. Normally, this
requirement is accompanied by the filing of the complaint itself
which is sometimes denominated as an action for consignation, but
which is in reality an action for specific performance of the obligation
or an action for cancellation of the obligation.
Idem; Fifth requisite. — After the consignation had been
made, the persons interested in the fulfillment of the obligation must
be notified thereof.165 This notification is separate and distinct from

161
Araneta vs. Tuason de Paterno, 49 Off. Gaz. 45. But see Llamas vs. Abaya, 60
Phil. 502.
162
Art. 1256, par. 1, Civil Code; Bellis vs. Imperial, 52 Phil. 530.
163
8 Manresa, 5th Ed., Bk. 1, pp. 627-628.
164
Art. 1258, par. 1, Civil Code.
165
Art. 1258, par. 2, Civil Code.

283
Arts. 1257-1258 OBLIGATIONS

the notification which is made prior to the consignation. As declared


by the Supreme Court in the case of Cabanos vs. Calo,166 “there should
be notice to the creditor prior and after consignation as required by
the Civil Code. The reason for this is obvious, namely, to enable
the creditor to withdraw the goods or money deposited. Indeed, it
would be unjust to make him suffer the risk for any deterioration,
depreciation or loss of such goods or money by reason of lack of
knowledge of the consignation.” Of course, if the consignation was
accompanied by the corresponding complaint for specific performance
or for cancellation of the obligation, automatically, the requirement
is complied with, provided that the other parties interested in the
fulfillment of the obligation are furnished copies thereof.
It must be observed, however, that there is nothing in the
Civil Code or in the Rules of Court which would prohibit compliance
with all of the requisites of a valid and effective consignation before
the filing of the complaint for consignation. Consequently, upon
compliance with all of the requisites, either of two possible situations
may arise. There is the possibility that the creditor may finally
accept the thing or amount deposited. In such case, the question
of payment is settled altogether. There is also the possibility that
he refuses to accept the thing or amount deposited or that he is not
interested or that he is not known or that he is absent. In such case,
a litigation will arise. The debtor will then be compelled to bring an
action against the creditor for the extinguishment or cancellation of
the obligation on the ground of a valid and effective consignation.167

Ponce de Leon vs. Syjuco, Inc.


90 Phil. 311

Plaintiff contracted two loans from the defendant in


1941 during the Japanese occupation amounting to P216,000
in Japanese military notes. These loans are evidenced by two
promissory notes wherein plaintiff promised to pay “within one
year from May 5, 1948” in the legal tender of the Philippines.
On November 5, 1944, he offered to the defendant the principal
including interests up to the dates of maturity of the two
notes. The defendant refused to accept the tender of payment.
Subsequently, plaintiff deposited the money with the clerk of

166
G.R. No. L-10927, Oct. 30, 1958.
167
3 Castan, 7th Ed., pp. 253-254; 8 Manresa, 5th Ed., Bk. 1, pp. 635-636.

284
EXTINGUISHMENT OF OBLIGATIONS Arts. 1257-1258
Tender of Payment and Consignation

court. After liberation, he brought this action to compel the


defendant to accept the amount deposited. The issue, therefore,
is — is the consignation valid? The Supreme Court held:
“In order that consignation may be effective, the debtor
must first comply with certain requirements prescribed by
law. The debtor must show: (1) that there was a debt due; (2)
that the consignation of the obligation has been made because
the creditor to whom tender of payment was made refused
to accept it, or because he was absent or incapacitated, or
because several persons claimed to be entitled to receive
the amount due (Art. 1176 — now Art. 1256, Civil Code); (3)
that previous notice of the consignation had been given to the
person interested in the performance of the obligation (Art.
1177 — now Art. 1257, Civil Code); (4) that the amount due was
placed at the disposal of the court (Art. 1178 — now Art. 1258,
Civil Code); (5) that after the consignation had been made the
person interested was notified thereof (Art. 1178 — now Art.
1258, Civil Code). In the instant case, while it is admitted that
a debt existed, that the consignation was made because of the
refusal of the creditor to accept it, and that the filing of the
complaint to compel its acceptance on the part of the creditor
can be considered sufficient notice of the consignation to the
creditor, nevertheless; it appears that at least two of the above
requirements have not been complied with. Thus, it appears
that plaintiff, before making the consignation with the clerk
of court, failed to give previous notice thereof to the person
interested in the performance of the obligation. It also appears
that the obligation was not yet due and demandable when the
money was consigned, because, as already stated, by the very
express provisions of the document evidencing the same, the
obligation was to be paid within one year after May 5, 1948,
and the consignation was made before this period matured. The
failure of these two requirements is enough ground to render
the consignation ineffective. And it cannot be contended that
plaintiff is justified in accelerating the payment of the obligation
because he was willing to pay the interest due up to the date of
its maturity because, under the law, in a monetary obligation
contracted with a period, the presumption is that the same is
deemed constituted in favor of both the creditor and the debtor
unless from its tenor or from other circumstances it appears
that the period has been established for the benefit of either one
of them (Art. 1127 — now Art. 1196, Civil Code). Here no such
exception or circumstance exists.’’168

168
See also Limkako vs. Teodoro, 74 Phil. 313.

285
Arts. 1259-1261 OBLIGATIONS

Subject Matter of Consignation. — Although Art. 1258


seems to give the impression that only movables may be the subject
matter of consignation, Spanish commentators advance the opinion
that not only movables, but even immovables may be the subject
matter thereof. They believe that consignation of immovable
property should be allowed because it would be unjust to charge
the debtor indefinitely with the task of preserving the immovable
property which constitutes the object of the obligation.169

Art. 1259. The expenses of consignation, when properly


made, shall be charged against the creditor.170

Expenses of Consignation. — Before the creditor can be


charged with the expenses of consignation, it is essential that such
consignation must have been properly made. From what had al-
ready been stated, consignation is considered properly made in the
following cases: first, when the creditor accepts the thing or amount
deposited as payment of the obligation without contesting the ef-
ficacy or validity of the consignation; and second when the creditor
contests the efficacy or validity of the consignation and the court
finally decides that it has been properly made or cancels the obliga-
tion at the instance of the debtor in accordance with the provision of
the first paragraph of Art. 1260.

Art. 1260. Once the consignation has been duly made,


the debtor may ask the judge to order the cancellation of the
obligation.
Before the creditor has accepted the consignation, or
before a judicial declaration that the consignation has been
properly made, the debtor may withdraw the thing or the
sum deposited, allowing the obligation to remain in force.171
Art. 1261. If the consignation having been made, the
creditor should authorize the debtor to withdraw the same,
he shall lose every preference which he may have over the

169
3 Castan, 7th Ed., p. 252; see Arts. 538, 2005, et seq., Civil Code.
170
Art. 1179, Spanish Civil Code.
171
Art. 1180, Spanish Civil Code.

286
EXTINGUISHMENT OF OBLIGATIONS Arts. 1259-1261
Loss of the Thing Due

thing. The co-debtors, guarantors and sureties shall be


released.172

Effects of Consignation. — The effects of consignation may


be summarized as follows:
(1) If the creditor accepts the thing or amount deposited
without contesting the validity or efficacy of the consignation, it is
logical that the obligation is cancelled or extinguished.
(2) If the creditor contests the validity or efficacy of the
consignation, the result is a litigation. The same is true if the creditor
is not interested or is not known or is absent. The result is also a
litigation. If during the trial on the merits of the case, the plaintiff-
debtor is able to establish that all of the requisities of a valid and
effective consignation had been complied with, the obligation is
extinguished or cancelled.
Idem; Effect of withdrawal. — We must distinguish
between the effect of a withdrawal by the debtor of the object or
amount deposited when made before the creditor has accepted the
consignation or before a judicial declaration that the consignation
has been properly made,173 and a withdrawal made with the consent
of the creditor.174 In the first, the obligation remains in force;175 in the
second, the creditor loses every preference which he may have over
the thing. Solidary co-debtors, guarantors and sureties, however,
shall be released.176

Section 2. — Loss of the Thing Due

Concept. — In its strict sense, “loss of the thing due” means


that the thing which constitutes the object of the obligation perishes,
or goes out of the commerce of man, or disappears in such a way that
its existence is unknown or it cannot be recovered.177 In its broad
sense, it means impossibility of compliance with the obligation

172
Art. 1181, Spanish Civil Code, in modified form.
173
Art. 1260, par. 2, Civil Code.
174
Art. 1261, Civil Code.
175
Art. 1260, par. 2, Civil Code.
176
Art. 1261, Civil Code.
177
Art. 1189, No. 2, Civil Code.

287
Art. 1262 OBLIGATIONS

through any cause.178 In other words, it is synonymous with what


other codes term “impossibility of performance.’’179 This is the sense
in which it is understood in this section of the Civil Code.

Art. 1262. An obligation which consists in the delivery of


a determinate thing shall be extinguished if it should be lost
or destroyed without the fault of the debtor, and before he
has incurred in delay.
When by law or stipulation, the obligor is liable even for
fortuitous events, the loss of the thing does not extinguish
the obligation, and he shall be responsible for damages. The
same rule applies when the nature of the obligation requires
the assumption of risk.180

Effect of Loss in Determinate Obligations To Give. —


According to the first paragraph of the above article, an obligation
to give a determinate thing will be extinguished if the thing should
be lost or destroyed without the fault of the debtor and before he has
incurred in delay.181 It is evident from this rule that before the loss of
the thing due will result in the extinguishment of the obligation, it
is necessary that the following requisites must concur:
(1) The thing which is lost must be determinate.182
(2) The thing is lost without any fault of the debtor. If the
thing is lost through the fault of the debtor, the obligation is not
extinguished; it is simply converted into an obligation to indemnify
the creditor for damages.183
(3) The thing is lost before the debtor has incurred in delay.
If the thing is lost after the debtor has already incurred in delay,

178
4 Sanchez Roman 442.
179
Ibid. For extended discussion — see 8 Manresa, 5th Ed., Bk. 1, pp. 650-652.
180
Art. 1182, Spanish Civil Code, in modified form.
181
For illustrative cases — see Crame vs. Gonzaga, 10 Phil. 646; Insular Govern-
ment vs. Bingham, 13 Phil. 558; Bishop of Jaro vs. De la Peña, 26 Phil. 144; Lizares
vs. Hernaez, 40 Phil. 98; Obejera vs. Iga Sy, CA, 43 Off. Gaz. 121; Cruz vs. Valero, 89
Phil. 260; Bachrach Motor Co. vs. Lee Tay and Lee Chay, 90 Phil. 540; Ramcar vs.
Dizon, CA, 51 Off. Gaz. 3507.
182
See Lawyers Coop. Pub. Co. vs. Tabora, 13 SCRA 762; Rep. of the Phil. vs.
Grijaldo, 15 SCRA 681.
183
Art. 1170, Civil Code.

288
EXTINGUISHMENT OF OBLIGATIONS Art. 1262
Loss of the Thing Due

the rule is that such debtor can still be held liable for indemnity for
damages.184
Idem; Effect of fortuitous event. — The rule declared in
the first paragraph of Art. 1262 must always be read in relation
to the rule declared in Art. 1174 regarding the effect of the failure
of the debtor to comply with his obligation through a fortuitous
event. If the thing which constitutes the object of the obligation is
lost or destroyed through a fortuitous event, the debtor cannot be
held responsible.185 In other words, the obligation is extinguished.186
Thus, where some of the goods deposited in the defendant’s
warehouse were looted and the rest was taken by the Japanese
forces during the war, there would be no legal way of holding the
defendant responsible, because it is evident that the loss was due to
a fortuitous event.187 Similarly, where the launch or casco which the
defendant was supposed to deliver to the plaintiff was lost due to a
defect of the casco which could not have been foreseen, he cannot
be held liable.188 But where the defendant purchased a truck from
the plaintiff before the outbreak of the last war, payable in monthly
installments, and was commandeered by the USAFFE during the
war, the defendant’s obligation is not extinguished, because in the
first place, the truck became the property of the defendant when
it was delivered to him, and consequently, he must bear the loss;
in the second place, he could have filed a war damage claim with
the United States government and he would have been paid. His
negligent omission cannot, therefore, be imputed to the plaintiff who
was no longer the owner of the vehicle.189
Idem; id. — Exceptions. — There are, however, certain
exceptions to the rule that the debtor cannot be held liable if the
thing which constitutes the object of the obligation is lost or destroyed
through a fortuitous event. They are:
(1) When by law, the debtor is liable even for fortuitous
events;190

184
Arts. 1170, 1165, par. 3, Civil Code.
185
Art. 1174, Civil Code.
186
Art. 1262, Civil Code.
187
Cruz vs. Valero, 89 Phil. 260.
188
Ramcar vs. Dizon, CA, 51 Off. Gaz. 3507.
189
Bachrach Motor Co. vs. Lee Tay and Lee Chay, 90 Phil. 540.
190
Arts. 1174, 1262, par. 2, Civil Code.

289
Art. 1263 OBLIGATIONS

(2) When by stipulation of the parties, the debtor is liable


even for fortuitous events;191
(3) When the nature of the obligation requires the assumption
of risk;192
(4) When the loss of the thing is due partly to the fault of the
debtor;193
(5) When the loss of the thing occurs after the debtor has
incurred in delay;194
(6) When the debtor promised to deliver the same thing to
two or more persons who do not have the same interest;195
(7) When the obligation to deliver arises from a criminal
offense;196 and
(8) When the obligation is generic.197

Art. 1263. In an obligation to deliver a generic thing,


the loss or destruction of anything of the same kind does not
extinguish the obligation.198
Effect of Loss in Generic Obligations To Give. — If the
obligation is generic in the sense that the object thereof is designated
merely by its class or genus without any particular designation or
physical segregation from all others of the same class, the loss or
destruction of anything of the same kind even without the debtor’s
fault and before he has incurred in delay will not have the effect
of extinguishing the obligation.199 This rule which is stated in Art.
1263 is based upon the principle that the genus of a thing can
never perish (genus nunquam peruit). Consequently, the debtor
can still be compelled to deliver a thing which must be neither of

191
Ibid.
192
Art. 1262, par. 1, Civil Code.
193
Ibid. See Tan Chiong Sian vs. Inchauti & Co., 22 Phil. 152; Limpangco vs.
Yangco Steamship Co., 34 Phil. 597.
194
Arts. 1262, par. 1, 1165, par. 3, Civil Code.
195
Art. 1165, par. 3, Civil Code.
196
Art. 1268, Civil Code.
197
Art. 1263, Civil Code.
198
New provision.
199
Art 1263; see discussion under Arts. 1163, et seq., Civil Code.

290
EXTINGUISHMENT OF OBLIGATIONS Arts. 1264-1265
Loss of the Thing Due

superior nor inferior quality.200 Thus, where the obligation consists


in the payment of money201 or in the delivery of any other generic
or indeterminate thing such as several cavans of rice202 or several
piculs of sugar203 or several tons of copra,204 the failure of the debtor
to make the payment or to effect the delivery even by reason of a
fortuitous event shall not relieve him of his liability.
There is, however, a sort of exception to the rule in the case
of a generic obligation whose object is a particular class or group
with specific or determinate qualities, such as the cattle or horses
of a certain ranch or the sugar in a certain warehouse. Thus, if A
obligated himself to deliver before the end of 1979 fifty heads of cattle
to B with the understanding that such fifty heads of cattle shall be
taken from a certain ranch and all of the cattle in that ranch are
wiped out by an epidemic, the obligation is extinguished. In reality,
such obligation is determinate in character.205

Art. 1264. The Courts shall determine whether, under the


circumstances, the partial loss of the object of the obligation
is so important as to extinguish the obligation.206
Effect of Partial Loss. — The rule stated in the above article
is self-explanatory. Whether or not the partial loss or destruction
of the thing is of such importance that it would be tantamount to a
complete loss or destruction, shall depend upon the sound discretion
of the court.

Art. 1265. Whenever the thing is lost in the possession


of the debtor, it shall be presumed that the loss was due to
his fault, unless there is proof to the contrary, and without
prejudice to the provisions of Article 1165. This presumption
does not apply in case of earthquake, flood, storm or other
natural calamity.207

200
Art. 1246, Civil Code.
201
Reyes vs. Caltex, 47 Off. Gaz 1193; Phil. Long Distance Co. vs. Jeturian, 97
Phil. 781.
202
Soriano vs. De Leon, 48 Off. Gaz. 2245.
203
Yu Tek Co. vs. Gonzalez, 29 Phil. 384; Lacson vs. Diaz, 47 Off. Gaz. 337.
204
Bunje Corp. vs. Elena Camenforte & Co., 48 Off. Gaz. 3377.
205
8 Manresa, 5th Ed., Bk. 1, p. 653.
206
New provision.
207
Art. 1183, Spanish Civil Code, in modified form.

291
Art. 1266 OBLIGATIONS

Rule If Thing Is in Debtor’s Possession. — According


to the above article, if the thing which constitutes the object of a
determinate obligation is lost in the possession of the debtor, there
arises a disputable presumption that the loss was due to his fault.
In such case, the obligation is not extinguished; in other words,
the debtor is still liable to the creditor for damages. Therefore, the
burden of proof of absence of fault corresponds to the debtor. This
must be without prejudice to the rule stated in the third paragraph
of Art. 1165 to the effect that if the obligor delays, or has promised
to deliver the same thing to two or more persons who do not have
the same interest, he shall be responsible for any fortuitous event
until he has effected the delivery. Hence, in such cases, even if the
debtor or obligor can prove that the loss or destruction of the thing
in his possession was not through his fault or that it was through a
fortuitous event, he shall still be liable to the creditor or obligee for
damages.
The presumption, however, does not apply in case of earthquake,
flood, storm or other natural calamity. This qualification was added
by the Code Commission to the original rule stated in Art. 1183 of
the Spanish Civil Code, because “in case of a natural calamity, lack
of fault is more likely.’’

Art. 1266. The debtor in obligations to do shall also be


released when the prestation becomes legally or physically
impossible without the fault of the obligor.208

Effect of Impossibility of Performance in Obligations To


Do. — The above article is applicable only to obligations to do, as
distinguished from Art. 1262, which is applicable only to obligations
to give. However, in order that the impossibility of compliance
with the obligation shall result in its extinguishment, practically
the same requisites prescribed by Art. 1262 are also prescribed in
this article. Consequently, the prestation constituting the object of
the obligation must have become legally or physically impossible
of compliance without the fault of the obligor and before he has
incurred in delay, otherwise, the obligation shall be converted into
one of indemnity for damages. In addition, the impossibility must
have occurred after the constitution of the obligation; otherwise, if

208
Art. 1184, Spanish Civil Code, in modified form.

292
EXTINGUISHMENT OF OBLIGATIONS Art. 1266
Loss of the Thing Due

it was present before the obligation was constituted, there would be


an obligation which would be ineffective from its inception.
The article distinguishes between two causes of impossibility
of the prestation by considering the source of such impossibility. It
may arise from the law, although physically it may be possible of
performance, or it may arise from a fact which renders performance
impossible, although no law is violated. In both cases, the obligor is
released from his obligation.209
The first (legal impossibility) may be direct, when the law
prohibits the performance or execution of the work agreed upon, as
where it is immoral or dangerous; or it may be indirect, as where the
law imposes duties of a superior character upon the obligor which
are incompatible with the work agreed upon, although the latter
may be perfectly licit, as where the obligor is drafted for military
service or for a civil function. The second (physical impossibility),
on the other hand, arises principally from the death of the obligor,
when the act to be performed requires his personal qualifications, or
from the death of the obligee, when the act can be of possible benefit
only to him. In one and the other case, both the obligation and
the right, respectively, are intransmissible, and consequently, are
extinguished by the mere fact of death. Aside from these absolute
forms of extinction, physical impossibility may also arise from mere
accident, or from the acts of the debtor himself in which there is no
fault, or from the acts of third persons affecting the debtor’s capacity
to execute the work agreed upon.210
Idem; Effect. — When the prestation which constitutes the
object of the obligation becomes legally or physically impossible
without the fault of the obligor, according to Art. 1266, such obligor
is released from the obligation. Thus, where a contract is entered
into between the creditor and the principal debtor without the
knowledge and consent of the surety which made it impossible for
such surety to comply with his promise, it is clear that under Art.
1266 the surety can no longer be held liable, considering the fact that
the compliance with the obligation has become impossible without
any fault on his part.211 Similarly, where the obligor was unable

209
8 Manresa, 5th Ed., Bk. 1, p. 661.
210
Ibid., pp. 661-663.
211
House vs. De la Costa, 63 Phil. 74.

293
Art. 1266 OBLIGATIONS

to comply with his obligation to reconstruct certain apartments


including a movie house because of the refusal of the City Engineer
to issue the necessary building permit due to the plan of the Urban
Planning Commission to widen the street adjoining the lots where
such buildings were to be constructed, he cannot be held liable for
breach considering the fact that it was legally impossible for him to
comply with the obligation.212 The same is true where compliance
with the prestation which constitutes the object of the obligation will
prove dangerous to life or property.213 The application of this rule is
even more evident in those obligations where the prestation had to
be performed during the Japanese occupation because of the certain
conditions of peace and order then prevailing in the country.214

Labayen vs. Talisay-Silay Milling Co.


52 Phil. 440

Plaintiff and defendant entered into a contract whereby it


was agreed among other things that the latter shall extend its
railroad from its sugar central to a certain hacienda. Defendant,
however, failed to comply with the obligation because the
extension of the railroad would be very costly and dangerous to
life and property by reason of the contour of the land through
which the said railroad would be constructed. The question
now is — is there a breach of contract which would render the
defendant liable for damages? The Supreme Court held:
“It is elemental that the law requires the parties to do
what they have agreed to do. If a party charges himself with an
obligation possible to be performed, he must abide by it unless
performance is rendered impossible by the act of God, the law,
or the party. A showing of mere inconvenience, unexpected
impediments, or increased expenses is not enough. Equity
cannot relieve from bad bargains simply because they are such.
So one must answer in damages where the impossibility is only
so in fact.
“The foregoing are familiar principles found in the
American and English law of contracts. The civil law on the

212
Tabora vs. Lazatin, G.R. No. L-5245, May 29, 1953. To the same effect: Thea-
tres Supply Corp. vs. Malolos, CA, 48 Off. Gaz. 1803.
213
Labayen vs. Talisay-Silay Milling Co., 52 Phil. 440.
214
Castro vs. Longa, 89 Phil. 581. To the same effect: Santos vs. Sec. of Agricul-
ture, 48 Off. Gaz. 3368.

294
EXTINGUISHMENT OF OBLIGATIONS Art. 1267
Loss of the Thing Due

subject of obligations is not essentially different. Article 1272


(now Art. 1348) of the Civil Code provides: ‘impossible things or
services cannot be the subject matter of contracts.’ And Article
1184 (now Art. 1266) of the same Code provides: “The debtor
shall also be relieved from obligations which consist in the
performance of an act if fulfillment of the undertaking becomes
legally or physically impossible.’’
“May one obligate himself to do something which, when
accomplished, will prove to be dangerous to life and property?
We doubt it. Take the contract in question as an example. It
was a general contract of the form used by the central and
various proprietors of sugarcane field. It was intended to be
limited in particular application to haciendas not impeded by
physical impossibility. The contract was qualified by an implied
condition which, if given practical effect, results in absolving the
central from its promise. Not to sanction an exception to the
general rule would run counter to public policy and the law by
forcing the performance of a contract undesirable and harmful.’’
(8 Manresa’s Codigo Civil Español, p. 355.)

Idem; Effect in obligations not to do. — The Code only


speaks of legal and physical impossibility with respect to obligations
to do because it is very seldom that impossibility of performance
may arise in obligations not to do. There may, however, be rare or
exceptional cases in which legal or physical impossibility will occur
as when the obligor is compelled to do that which he had obligated
himself to refrain from performing. In such cases, his obligation is
extinguished applying the same principle invoked in Art. 1266.215

Art. 1267. When the service has become so difficult as to


be manifestly beyond the contemplation of the parties, the
obligor may also be released therefrom, in whole or in part.216
Effect of Relative Impossibility. — The general rule is that
impossibility of performance of an obligation to do shall release the
obligor. However, when the service has become so difficult as to be
manifestly beyond the contemplation of the parties, the court should
be authorized to release the obligor in whole or in part. The intention
of the parties should govern and if it appears that the service turns

215
8 Manresa, 5th Ed., Bk. 1, p. 664.
216
New provision.

295
Art. 1268 OBLIGATIONS

out to be so difficult as to have been beyond their contemplation,


it would be doing violence to that intention to hold the obligor still
responsible.217
Art. 1267 contemplates of “service’’ which has become so dif-
ficult. Taking into consideration the rationale for this provision,
the word “service’’ should be understood as referring to the “perfor-
mance’’ of the obligation.
“Furthermore, a bare reading of this article reveals that it is
not a requirement thereunder that the contract be for future service
with future unusual change. According to Sen. Arturo M. Tolentino,
Art. 1267 states in our law the doctrine of unforeseen events. This is
said to be based on the discredited theory of “rebus sic stantibus’’ in
public international law. Under this theory, the parties stipulate in
the light of certain prevailing conditions, and once these conditions
cease to exist, the contract also ceases to exist. Considering practical
needs and the demands of equity and good faith, the disappearance
of the basis of the contract gives rise to a right to relief in favor of the
party prejudiced.’’ (Naga Telephone Co., et al. vs. Court of Appeals, et
al., Feb. 24, 1994, 48 SCAD 539.)

Art. 1268. When the debt of a thing certain and determi-


nate proceeds from a criminal offense, the debtor shall not
be exempted from the payment of its price whatever may be
the cause for the loss, unless the thing having been offered
by him to the person who should receive it, the latter refused
without justification to accept it.218

Rule If Obligation Arises from Criminal Offense. — The


rule stated in Art. 1268 is applicable not only to the case where
there is an obligation of restitution of a certain and determinate
thing on the part of the person criminally liable as provided for in
the Penal Code, but also to the case where such obligation arises
by virtue of reparation or indemnification. In all of these cases,
there is no question that the debt proceeds from a criminal offense.

217
Report of the Code Commission, p. 133. It seems that the doctrine enunciated
by the Supreme Court in the cases of Labayen vs. Talisay-Silay Milling Co., 52 Phil.
440, and Castro vs. Longa, 89 Phil. 581 (supra), can be justified by an application of
the principle now enunciated in this article.
218
Art. 1185, Spanish Civil Code.

296
EXTINGUISHMENT OF OBLIGATIONS Art. 1269
Loss of the Thing Due

Furthermore, the rule is applicable not only to the persons who are
principally liable, but also to those who are subsidiarily liable. In all
of these cases, if the thing is lost, the debtor shall not be exempted
from the payment of the price of the thing, whatever may be the
cause for the loss. The only case where he is relieved of the severity
of the precept is when he had offered the thing to the obligee and the
latter had refused to accept it without justification.219
The offer referred to in this article should not be confused with
consignation inasmuch as the latter refers only to the payment of
the obligation, while the former refers to the extinguishment of the
obligation through loss by a fortuitous event. In consignation, the
offer is but a step to the payment; in this article, it is essential that
the creditor should refuse to accept the thing without justification
in order that the debtor may be released from liability in case of loss
through a fortuitous event.220
When the offer is made by the debtor and the creditor refuses to
accept it without justification, he may choose either of two courses:
(1) he may make a consignation of the thing and thereby completely
relieve himself of further liability, or (2) he may keep the thing in
his possession, in which case, the obligation shall still subsist but
with this difference — that if the thing is lost through a fortuitous
event, Arts. 1262 and 1265, and not Art. 1268, shall govern. It must,
of course, be noted that this Article (1268) can have no application
to those cases where an offer is not possible, since such offer by the
debtor is an essential requisite.221

Art. 1269. The obligation having been extinguished by


the loss of the thing, the creditor shall have all the rights of
action which the debtor may have against the third persons
by reason of the loss.222

Effect of Extinguishment of Obligation. — According to


the above article, if the obligation is extinguished by the loss of the
thing, all of the rights of action which the debtor may have against
third persons by reason of the loss are transmitted by operation of

219
8 Manresa, 5th Ed., Bk. 1, pp. 666-668.
220
Ibid.
221
Ibid.
222
Art. 1186, Spanish Civil Code.

297
Art. 1269 OBLIGATIONS

law to the creditor. Such transmission is made from the moment of


the extinguishment of the obligation. The application of the precept
is illustrated in a case where the object which is due is insured
and by reason of some cause is lost or destroyed. In such case,
the creditor can collect the indemnity from the insurer. It is also
illustrated by a case where the object is expropriated. In such case,
the creditor can collect the compensation which is due by reason of
the expropriation.223

Section 3. — Condonation or Remission of the Debt

Concept. — Remission is an act of liberality by virtue of which


the obligee, without receiving any price or equivalent, renounces the
enforcement of the obligation, as a result of which it is extinguished
in its entirety or in that part or aspect of the same to which the
remission refers.224 In the terse language of Sanchez Roman, it is the
gratuitous abandonment by the creditor of his right.225
Requisites. — In order that there will be a remission or
condonation which will result in the total or partial extinguishment
of the obligation, it is essential that the following requisites must
concur: first, it must be gratuitous; second, it must be accepted by
the obligor; and third, the obligation must be demandable.
Kinds. — Remission or condonation may be classified as
follows:
(1) As to form, remission may be express or implied. It is
express when it is made in accordance with the formalities prescribed
by law for donations; it is implied when, although it is not made in
accordance with the formalities prescribed by law for donations, it
can be deduced from the acts of the obligee or creditor.226
(2) As to extent, remission may be total or partial. It is total
when the entire obligation is extinguished; it is partial when it
refers only to the principal or to the accessory obligation or to an
aspect thereof which affects the debtor as for instance solidarity.

223
8 Manresa, 5th Ed., Bk. 1, pp. 670-672.
224
8 Manresa, 5th Ed., Bk. 1, p. 673.
225
4 Sanchez Roman 422.
226
8 Manresa, 5th Ed., Bk. 1, pp. 675-676.

298
EXTINGUISHMENT OF OBLIGATIONS Art. 1270
Condonation or Remission of the Debt

(3) As to constitution, remission may be inter vivos or mortis


causa. The first refers to that which is constituted by agreement of
the obligee and the obligor in which case it partakes of the nature
of a donation inter vivos;227 the second, on the other hand, refers to
that which is constituted by last will and testament in which case it
partakes of the nature of a donation mortis causa.228

Art. 1270. Condonation or remission is essentially gratu-


itous, and requires the acceptance by the obligor. It may be
made expressly or impliedly.
One and the other kinds shall be subject to the rules
which govern inofficious donations. Express condonation
shall, furthermore, comply with the forms of donations.229

Gratuitous Character of Remission. — The most essential


characteristic of remission is that it is gratuitous.230 Consequently,
before it can be said that an obligation has been condoned by the
creditor, it is essential that it must be an act of pure liberality of
the creditor for the benefit of the debtor; in other words, the creditor
should not have received any price or equivalent from the debtor as
a result of his act in renouncing the enforcement of the obligation.
Necessity of Acceptance by Debtor. — Because in reality
the remission or condonation of an obligation is by its very nature a
donation, the Code requires that it must be accepted by the debtor.231
This requisite is expressly declared in the first paragraph of Art.
1270; it can also be clearly inferred from the provision of the second
paragraph of the said article which states that it shall be subject to
the rules which govern inofficious donations.232
The question arises as to whether remission is a unilateral or
a bilateral act. Planiol and Valverde believe that it is by its very
nature a bilateral act, and this is rightly so, because our Code
requires its acceptance by the debtor, and besides, this view is in
conformity with the rule which subjects express remission to the

227
See Arts. 734, 745, 746, Civil Code.
228
See Arts. 935, 936, 937, Civil Code.
229
Art. 1270, par. 1, Civil Code.
230
Ibid.
231
Ibid.
232
3 Castan, 7th Ed., p. 265.

299
Art. 1270 OBLIGATIONS

forms of donations.233 Thus, where a proffer was made by the plaintiff


to the defendant that in the event the latter loses a pending case
with his wife and, after the adjudication of the conjugal property,
what is left will not be sufficient for his livelihood, he (the plaintiff)
will be pleased to write off as a bad debt the balance of a certain
indebtedness, and the proffer was accepted, it is clear that such
proffer constitutes a binding obligation.234
Applicability of Rules on Donations. — It is not only with
regard to the necessity of acceptance by the debtor that the rules on
ordinary donations are applicable.235 There are other rules which are
equally applicable, such as those governing the forms of donations
if the remission is express,236 those governing the extent or amount
of the donation,237 and those governing the revocation of donations.238
This is not only deducible from the very nature of remission as an
act of pure liberality, it is also expressly declared by the second
paragraph of Art. 1270.
Idem; Extent of remission. — Whether express or implied,
the extent of the remission or condonation shall be governed by the
rules regarding inofficious donations.239 Hence, the following rules
are applicable:

“Art. 750, C.C. The donation may comprehend all the


present property of the donor, or part thereof, provided he
reserves, in full ownership or in usufruct, sufficient means for
the support of himself, and of all relatives who, at the time of the
acceptance of the donation, are by law entitled to be supported
by the donor. Without such reservation, the donation shall be
reduced on petition of any person affected.”
“Art. 751, C.C. Donations cannot comprehend future
property.
“By future property is understood anything which the
donor cannot dispose of at the time of the donation.’’

233
Ibid., pp. 265-266.
234
Dalupan vs. Harden, 90 Phil. 417.
235
Arts. 734, 745, 746, Civil Code.
236
Arts. 748, 749, Civil Code.
237
Arts. 750, 751, 752, Civil Code.
238
Arts. 760-773, Civil Code.
239
Art. 1270, par. 2, Civil Code.

300
EXTINGUISHMENT OF OBLIGATIONS Art. 1270
Condonation or Remission of the Debt

“Art. 752, C.C. The provision of Article 750 notwithstanding,


no person may give or receive, by way of donation, more than he
may give or receive by will.
“The donation shall be inofficious in all that it may exceed
this limitation.”
“Art. 771, C.C. Donations which in accordance with the
provisions of Article 752, are inofficious, bearing in mind the
estimated net value of the donor’s property at the time of his
death, shall be reduced with regard to the excess, but this
reduction shall not prevent the donations from taking effect
during the life of the donor, nor shall it bar the donee from
appropriating the fruits.
“For the reduction of donations the provisions of this
Chapter and of Articles 911 and 912 of this Code shall govern.’’

Consequently, if the estate of the creditor consists of credits,


and there is a remission or condonation of all of such credits, it is
evident that there would be a violation of the rule stated in Art. 750
of the Code, in which case the remedy provided for in the said article
would be available. If the remission comprehends future debts, it
is also evident that it shall be void, not only because it lacks the
requisite of demandability, but also because it is contrary to the
precept contained in Art. 751 that donations cannot comprehend
future property. And finally, if the remission is inofficious in
accordance with the general precept contained in Art. 752, the
remedy provided for in Art. 771 by virtue of which the compulsory
heirs of the creditor-donor can proceed against the debtor-donee for
the reduction or even suppression of the remission, would also be
available.240
Idem; Form of express remission. — According to the
second paragraph of Art. 1270, express remission or condonation
must comply with the forms of donations. This rule is, of course,
logical considering the fact that the remission or condonation of a
debt is in reality a donation. Hence, the following provisions are
applicable:

“Art. 748, C.C. The donation of a movable may be made


orally or in writing.’’

240
8 Manresa, 6th Ed., Bk 1, pp. 679-680.

301
Art. 1270 OBLIGATIONS

“An oral donation requires the simultaneous delivery of


the thing or of the document representing the right donated.’’
“If the value of the personal property donated exceeds five
thousand pesos, the donation and the acceptance shall be made
in writing. Otherwise, the donation shall be void.”
“Art. 749, C.C. In order that the donation of an immovable
may be valid, it must be made in a public document, specifying
therein the property donated and the value of the charges which
the donee must satisfy.’’
“The acceptance may be made in the same deed of donation
or in a separate public document, but it shall not take effect
unless it is done during the lifetime of the donor.’’
“If the acceptance is made in a separate instrument, the
donor shall be notified thereof in an authentic form, and this
step shall be noted in both instruments.”

Consequently, if the obligation to give which is expressly


condoned involves personal property, the provision of Art. 748 shall
apply with the qualification that the delivery of personal property,
if the remission is verbal, shall not be required since there is no
transfer of property but merely a remission or condonation of an
obligation to give personal property. On the contrary, in acts of
liberality of this sort the debtor is relieved from making a conveyance
of the property.241 It must also be noted that with respect to express
remission of an obligation to give personal property, acceptance by
the debtor maybe implied or tacit, provided that the value of the
debt which is condoned is not more than five thousand pesos.
If the obligation to give which is expressly condoned involves
immovable property, the provision of Art. 749 shall apply.
In obligations to do or not to do, the form of the express
remission must be in accordance with the less solemn formalities
established in Art. 748 with, of course, the necessary qualification
regarding delivery.242
It must also be noted that the fact that the obligation which is
condoned appears in a public document does not necessarily mean

241
Ibid.
242
Ibid.

302
EXTINGUISHMENT OF OBLIGATIONS Arts. 1271-1272
Condonation or Remission of the Debt

that the remission must also be embodied in a document of the same


character.243
Idem; Form of implied remission. — It will be observed
that the Code is silent with respect to the form of implied remission.
Nevertheless, there is no question that it may be deduced from any
act or acts of the creditor which clearly show the intent to condone
the obligation. As in the case of express remission, there must be
acceptance by the obligor or debtor. Such acceptance may be express
or implied in any case.244 Examples of implied remission are those
regulated by Arts. 1271 to 1274 of the Code.
There is, however, an interesting question that arises in
connection with implied remission. Let us assume that the remission
is expressly made, but because it fails to comply with the forms
prescribed by Art. 748 or Art. 749, it cannot properly take effect as
an express remission. Can it be enforced as a tacit remission? The
question must be resolved in the negative. Otherwise, the purpose of
the last sentence of Art. 1270 would be defeated. Hence, an express
remission which is formally defective cannot affect the obligee or
creditor, unless new or other acts from which remission may be
deduced should confirm the purpose expressed in the former.245

Art. 1271. The delivery of a private document evidencing


a credit, made voluntarily by the creditor to the debtor,
implies the renunciation of the action which the former had
against the latter.
If in order to nullify this waiver it should be claimed
to be inofficious, the debtor and his heirs may uphold it by
proving that the delivery of the document was made in virtue
of payment of the debt.246
Art. 1272. Whenever the private document in which
the debt appears is found in the possession of the debtor, it

243
Ibid.
244
Ibid.
245
Ibid. As a matter of fact because of the provision of the last sentence of Art.
1270, we believe that the only possible cases implied would be those contemplated in
Arts. 1271, 1272 and 1274 of the Civil Code.
246
Art. 1188, Spanish Civil Code.

303
Arts. 1271-1272 OBLIGATIONS

shall be presumed that the creditor delivered it voluntarily,


unless the contrary is proved.247

Effect of Delivery of Evidence of Credit to Debtor. — Art.


1271 enunciates the rule that if the creditor voluntarily delivers
the private document evidencing the credit to the debtor, there is
a presumption that he renounces his right of action against the
latter for the collection of the said credit, From an examination of
the provision, it is clear that the following requisites must concur
in order that the presumption will arise: first, that the document
evidencing the credit must have been delivered by the creditor to the
debtor; second, that the document must be a private document; and
third, that the delivery must be voluntary. The second requisite is,
of course, logical because if the document is public the presumption
does not arise considering the fact that the public character of the
document would always protect the interest of the creditor.248 With
regard to the third requisite, it must be observed that, according to
Art. 1272, whenever the private document evidencing the credit is
found in the possession of the debtor, there arises a presumption
that the creditor delivered it to him voluntarily, unless the contrary
is proved. Thus, where the promissory note evidencing the credit
is already in the possession of the debtor, there arises a disputable
presumption to the effect that the creditor must have delivered
it voluntarily to him; consequently, in the absence of proof to
the contrary, an implied or tacit renunciation of the debt may be
presumed.249
Subsequently, however, the heirs of the creditor may try to
impugn or nullify the renunciation or condonation by establishing
that it is inofficious in conformity with the remedy which is available
to them under Art. 771 of the Code. In such case, according to the
second paragraph of Art. 1271, the debtor or his heirs may uphold
it by proving that the delivery of the private document was made
because the debt had already been paid. This is, of course, ridiculous,
because under this rule, we would witness the absurd spectacle of
a debtor or his heirs trying to uphold a presumption of remission,

247
Art. 1189, Spanish Civil Code.
248
8 Manresa, 5th Ed., Bk. 1, p. 684.
249
Veloso vs. Masa, 10 Phil. 279; Lopez vs. Tambunting, 33 Phil. 236.

304
EXTINGUISHMENT OF OBLIGATIONS Arts. 1273-1274
Condonation or Remission of the Debt

when it is claimed that such remission is inofficious, by proving that


the debt had already been paid when as a matter of fact it is not.250

Art. 1273. The renunciation of the principal debt shall


extinguish the accessory obligations; but the waiver of the
latter shall leave the former in force.251
Art. 1274. It is presumed that the accessory obligation
of pledge has been remitted when the thing pledged, after
its delivery to the creditor, is found in the possession of the
debtor, or of a third person who owns the thing.252

Effect of Remission in General. — The effect of remission


is to extinguish the obligation in its entirety or in the part or aspect
thereof to which the remission refers.
If the obligation is joint, the remission can only affect the share
of the creditor who makes the remission and the corresponding share
of the debtor in whose favor the remission is made, since the peculiar
feature of this type of obligation is the division of the credit or of the
debt into as many equal shares as there are creditors or debtors, the
credits or debts being considered distinct from one another.253 If the
obligation is solidary, the provisions of Arts. 1215, 1219 and 1220 of
the Code shall govern.
Idem; Effect upon accessory obligations. — Under Art.
1273, if the remission refers to the principal obligation, all the
accessory obligations are extinguished, since the latter depend upon
the former for their existence or efficacy. However, if the remission
refers to the accessory obligations, the principal obligation continues
to subsist.
Idem; id. — Rule in pledge. — According to Art. 1274, it is
presumed that the accessory obligation of pledge has been remitted
when the thing pledged, after its delivery to the creditor, is found

250
3 Castan, 7th Ed., p. 268. Under Sec. 5(h) and (k), Rule 131 of the New Rules
of Court, the rule is that if the private document evidencing the credit is in the pos-
session of the debtor, there arises a disputable presumption to the effect that the debt
has already been paid.
251
Art. 1190, Spanish Civil Code.
252
Art. 1191, Spanish Civil Code, in amended form.
253
Art. 1208, Civil Code.

305
Art. 1275 OBLIGATIONS

in the possession of the debtor or of a third person who owns the


thing.254 Like the presumptions established in Arts. 1271 and 1272,
the presumption established in this article, according to the opinion
of a majority of commentators, Manresa among them, is disputable.255
The principal obligation for which the pledge is a security is, of
course, not affected.256 Thus, if A pledged his watch to B as security
for an indebtedness of P100, and subsequently, the watch is found
in his possession, there arises a presumption of remission of the
accessory obligation of pledge. The debt of P100, however, is not
affected. B may disprove the remission by proving that he gave the
watch temporarily to the debtor to be repaired or that A was able to
take possession thereof without his consent or authority.

Section 4. — Confusion or Merger of Rights

Art. 1275. The obligation is extinguished from the time


the characters of creditor and debtor are merged in the same
person.257
Concept of Confusion. — With the provision of Art. 1275 as
basis, confusion maybe defined as the merger of the characters of
creditor and debtor in one and the same person by virtue of which
the obligation is extinguished. The classic definition, however, is
that of Sanchez Roman. According to the eminent commentator,
confusion may be defined as the meeting in one and the same person
of the qualities of creditor and debtor with respect to one and the
same obligation.258
By its very nature, confusion or merger of rights will neces-
sarily result in the extinguishment of the obligation because of the
impossibility of enforcing it since it would certainly be absurd for
a person to enforce a claim against himself. Besides, the purpose
or end for which the obligation is constituted is realized when the
qualities of creditor and debtor are merged in one and the same per-
son.259

254
See Art. 2110, Civil Code.
255
Manresa, 5th Ed., Bk. 1, p. 697. Sanchez Roman, however, maintains that it
is conclusive (Vol. 4, p. 462).
256
Art. 1273, Civil Code.
257
Art. 1192, Spanish Civil Code, in modified form.
258
Art. 1192, Spanish Civil Code, in modified form.
259
4 Sanchez Roman 461.

306
EXTINGUISHMENT OF OBLIGATIONS Art. 1276
Confusion or Merger of Rights

Requisites. — In order that there will be a confusion of


rights which will result in the extinguishment of the obligation,
it is essential that the following requisites must concur: (1) that
the merger of the characters of creditor and debtor must be in the
same person;260 (2) that it must take place in the person of either the
principal creditor or the principal debtor;261 and (3) that it must be
complete and definite.262 The requisite that the merger of rights of
creditor and debtor must be complete and definite does not mean
that the extinguishment of the obligation should be complete or
total in character; it merely means that whether the merger refers
to the entire obligation or only a part thereof, it must be of such a
character that there will be a complete and definite meeting of all of
the qualities of creditor and debtor in the obligation or in the part or
aspect thereof which is affected by the merger.263
Kinds. — Confusion or merger of rights may be classified as
follows:
(1) As to cause or constitutions: Inter vivos or mortis causa
— inter vivos, when it is constituted by agreement of the parties,
mortis causa, when it is constituted by succession.
(2) As to extent or effect: Total or partial — total, if it results
in the extinguishment of the entire obligation, partial if it results
in the extinguishment of only a part of the obligation. There are
two cases where the extinguishment is merely partial — first, when
the confusion or merger refers only to a part of the obligation; and
second, when the obligation is joint.264

Art. 1276. Merger which takes place in the person of


the principal debtor or creditor benefits the guarantors.
Confusion which takes place in the person of any of the
latter does not extinguish the obligation.265

260
Art. 1278, Civil Code.
261
Art. 1276, Civil Code.
262
Testate Estate of Mota vs. Serra, 40 Phil. 464.
263
For illustrative cases of partial confusion or merger — see Sochayseng vs.
Trujillo, 31 Phil. 153; Yek Ton Lin Fire & Marine Insurance Co. vs. Yusingco, 46
Phil. 473.
264
3 Castan, 7th Ed., p. 269.
265
Art. 1193, Spanish Civil Code.

307
Art. 1277 OBLIGATIONS

Effect upon Accessory Obligations. — Under Art. 1276 in


relation to Art. 1275, if the confusion or merger of rights will take
place in the person of either the principal creditor or the principal
debtor, the effect is the extinguishment, not only of the principal
obligation, but even of the accessory obligation. This is, of course,
logical because of the principle that the accessory obligation cannot
exist without the principal obligation.266 Consequently, guarantors
shall be benefited by the confusion of rights.267 If, on the other hand,
the confusion or merger will take place in the person of a subsidiary
creditor or a subsidiary debtor, such as a guarantor, it is evident
that there is no extinguishment of the principal obligation;268 there
will be only a substitution of creditor or debtor. If there are several
guarantors and the characters of creditor and guarantor are merged
in the person of any of the guarantors, such guarantor-creditor can
demand the performance of the obligation from the debtor, and in
case of default, even from his former co-guarantors. If the characters
of debtor and guarantor are merged, the creditor can demand the
performance of the obligation directly from the guarantor.269

Art. 1277. Confusion does not extinguish a joint obliga-


tion except as regards the share corresponding to the credi-
tor or debtor in whom the two characters concur.270

Effect upon Collective Obligations. — The rule stated in


the above article necessarily follows from the nature and character
of a joint obligation. Under Art. 1208 of the Code, which we have
already taken up in a previous chapter, the credit or debt shall
be presumed to be divided into as many equal shares as there
are creditors or debtors. This presumption of division is the most
essential characteristic of joint obligations. It is but logical that the
confusion which takes place, let us say, in one of the debtors shall
only refer to the share which corresponds to him. Consequently,
there is merely a partial extinguishment of the debt. The creditor
can still proceed against the other debtors.271

266
3 Castan, 7th Ed., p. 269.
267
Art. 2176, Civil Code.
268
Ibid.
269
8 Manresa, 5th Ed., Bk. 1, p. 707.
270
Art. 1194, Spanish Civil Code.
271
8 Manresa, 5th Ed., Bk. 1, pp. 709-710.

308
EXTINGUISHMENT OF OBLIGATIONS Art. 1278
Compensation

With regard to solidary obligations, however, the provision


of Art. 1215 shall apply. In other words, the entire obligation is
extinguished, without prejudice to the rights and obligations of the
solidary creditors and solidary debtors among themselves.
Effect of Revocation of Confusion. — If the confusion
or merger is constituted by agreement, it is evident that it may
be revoked by the presence of any of the causes for the rescission,
annulment, nullity or inexistence of contracts or by some special cause
such as redemption. If it is constituted by inheritance, it may be
revoked by the nullity of the will, or by the subsequent appearance
of an heir with a better right, or by any other cause which will nullify
the merger. In all of these cases, the original obligation, as a general
rule, is recreated in the same form and under the same condition in
which it was found before the merger took place. Furthermore, the
period which has elapsed from the moment the merger took place
until its revocation cannot be computed in the determination of
the period of prescription, because during such period the creditor
could not possibly have made a demand for the fulfillment of the
obligation.272

Section 5. — Compensation

Art. 1278. Compensation shall take place when two


persons, in their own right, are creditors and debtors of each
other.273
Concept of Compensation. — According to Castan, compen-
sation may be defined as a mode of extinguishing in their concur-
rent amount those obligations of persons who in their own right are
creditors and debtors of each other.274 According to Manresa, it may
be defined as a figurative operation of weighing two obligations si-
multaneously in order to extinguish them to the extent in which the
amount of one is covered by the amount of the other.275
Compensation is very similar to payment, both from the the-
oretical and the practical point of view. In both cases, the obliga-

272
Ibid., pp. 700-701.
273
Art. 1195, Spanish Civil Code.
274
3 Castan, 7th Ed., p. 270.
275
8 Manresa, 5th Ed., Bk. 1, p. 713.

309
Art. 1278 OBLIGATIONS

tions are extinguished because their economic object or purpose is


realized. Compensation, however, presents a more convenient and
less expensive method of effecting the payments of two obligations.
Consequently, it deserves the name of simplified payment (pago
abreviado).276
It has a double advantage over payment: first, facility of pay-
ment because it takes effect by operation of law; and second, guaran-
ty for the effectivity of the credit, because, otherwise, if the parties
will still have to comply with the formalities of ordinary payment,
one can easily be prejudiced by fraud or insolvency of the other.277
Idem; Distinguished from payment. — Compensation may
be distinguished from payment as follows:
(1) The requisites prescribed by law for compensation are
different from those prescribed by law for payment.
(2) Compensation takes effect by operation of law, while
payment takes effect by act of the parties.
(3) Capacity to give and to acquire is not necessary in com-
pensation, but it is essential in payment.
(4) Compensation is, as a rule, partial, while payment is, as
a rule, complete and indivisible.278
Idem; Distinguished from confusion. — Compensation
may be distinguished from confusion as follows:
(1) As to number of persons, in compensation there must be
two persons, who, in their own right, are creditors and debtors of
each other; in confusion there is only one person in whom is merged
the qualities of creditor and debtor.
(2) As to number of obligations, in compensation there must
be at least two; in confusion there is only one.279

276
Ibid., pp. 713-714.
277
3 Castan, 7th Ed., p. 271.
278
2 Giorgi, Teoria de las Obligaciones, pp. 24-25.
279
Bocobo, Outlines of the Law on Obligations, p. 34.

310
EXTINGUISHMENT OF OBLIGATIONS Art. 1278
Compensation

Idem; Distinguished from counterclaim. — Compensation


may be distinguished from set-off or counterclaim,280 as follows:
(1) Compensation requires that the two debts must consist in
money, or if the things due are fungibles, they must be of the same
kind and quality, but in counterclaim, this is not necessary.281
(2) Compensation, as a general rule, requires that the debts
must be liquidated but counterclaim does not.282
(3) Compensation need not be pleaded, while a counterclaim
must be pleaded to be effectual.283
Kinds of Compensation. — As to cause, compensation may
be:
(1) Legal — when it takes effect by operation of law from the
moment all of the requisites are present. This is the fixed type which
is regulated by Arts. 1278 and 1279 of the Civil Code.
(2) Voluntary — when the parties who are mutually creditors
and debtors agree to compensate their respective obligations, even
though all of the requisites for compensation may not then be
present. Giorgi includes under this class the so-called facultative
compensation which is effected by a party who is entitled to oppose
the compensation because he would be prejudiced thereby. This
occurs, for instance, when the obligation of one is with a term, while
that of the other is pure, and the former renounces the benefit of the
term, consequently making the compensation possible.284

280
“A counterclaim is any claim for money or other relief which a defending party
may have against an opposing party. A counterclaim need not diminish or defeat the
recovery sought by the opposing party, but many claim relief exceeding in amount
or different in kind from that sought by the opposing party’s claim.’’ (Sec. 6, Rule 6,
New Rules of Court) “A counter-claim not set up shall be barred if it arises out of or is
necessarily connected with the transaction or occurrence that is the subject matter of
the opposing party’s claim.’’ (Sec. 6, Rule 6, New Rules of Court) “A counter-claim not
set up shall be barred if it arises out of or is necessarily connected with the transac-
tion or occurrence that is the subject matter of the opposing party’s claim and does
not require for its adjudication the presence of third parties of whom the court can not
acquire jurisdiction.’’ (Sec. 4, Rule 9, New Rules of Court)
281
Art. 1179, No. 1, Civil Code; Sec. 6, Rule 6, New Rules of Court.
282
Art. 1179, No. 4, Civil Code; Yap Unki vs. Chua Japco, 14 Phil. 602.
283
Yap Unki vs. Chua Japco, 14 Phil. 602.
284
3 Castan, 7th Ed., pp. 272-273; Art. 1282, Civil Code.

311
Art. 1279 OBLIGATIONS

(3) Judicial — when it takes effect by judicial decree. This


occurs, for instance, where one of the parties to a suit over an obliga-
tion has a claim for damages against the other and the former sets
it off by proving his right to said damage and the amount thereof.285
As to effect, compensation may be:
(1) Total — when the debts to be compensated are equal in
amount.286
(2) Partial — when the debts to be compensated are not equal
in amount.287

Art. 1279. In order that compensation may be proper, it


is necessary:
(1) That each one of the obligors be bound principally,
and that he be at the same time a principal creditor of the
other;
(2) That both debts consist in a sum of money, or if the
things due are consumable, they be of the same kind, and
also of the same quality if the latter has been stated;
(3) That the two debts be due;
(4) That they be liquidated and demandable;
(5) That over neither of them there be any retention or
controversy, commenced by third persons and communicated
in due time to the debtor.288
Requisites of Compensation. — The essential requisites of
compensation are:
(1) There must be two parties, who, in their own right, are
principal creditors and principal debtors of each other;289
(2) Both debts must consist in money, or if the things due
are fungibles (consumables), they must be of the same kind and
quality;290

285
Art. 1283, Civil Code.
286
Art. 1281, Civil Code.
287
Ibid.
288
Art. 1196, Spanish Civil Code.
289
Arts. 1278, 1279, No. 1, Civil Code.
290
Art. 1279, No. 2, Civil Code.

312
EXTINGUISHMENT OF OBLIGATIONS Art. 1279
Compensation

(3) Both debts must be due;291


(4) Both debts must be liquidated and demandable;292
(5) There must be no retention or controversy commenced by
third persons over either of the debts and communicated in due time
to the debtor;293 and
(6) The compensation must not be prohibited by law.294
Idem; As to parties. — The first requisite in order that legal
compensation shall take place is that there must be two parties who,
in their own right, are principal creditors and principal debtors of
each other. In other words, it is necessary: (1) that the parties be
mutually creditors and debtors in their own right; and (2) that they
must be bound as principals.
By virtue of the provision of Art. 1278, it is necessary that the
parties must be mutually creditors and debtors in their own right.
Consequently, there can be no compensation between the obligations
of a legal representative, guardian or administrator incurred in his
personal capacity and the obligations of third persons to the person
represented, ward or estate under administration, although such
obligations may have been incurred by such third persons with
the said representative, guardian or administrator acting in his
legal capacity. The same can be said with regard to the obligations
incurred by the partnership as a juridical person and the individual
credits of any one of the partners.295 Thus, where the members of a
certain society had secured a judgment against a co-member for a
certain amount, the latter cannot interpose the defense that such
judgment must be compensated by her claim against the society,
because it is clear that the first requisite for legal compensation to
take place is not present.296

291
Art. 1279, No. 3, Civil Code.
292
Art. 1279, No. 4, Civil Code.
293
Art. 1279, No. 5, Civil Code.
294
Arts. 1287, 1288, Civil Code; 3 Castan, 7th Ed., pp. 274-275.
295
8 Manresa, 5th Ed., Bk. 1, pp. 717-718.
296
Escano vs. Heirs of Escano, 28 Phil. 73.

313
Art. 1279 OBLIGATIONS

Garcia vs. Lim Chiu Sing


59 Phil. 562

The defendant, who is indebted to the Mercantile Bank


of China for P9,105.17, contends in this action brought by the
Bank against him for payment of the debt that such debt must
be compensated by his shares of stock with the Bank. The
Supreme Court, however, held:

“According to the weight of authority, a share of


stock or the certificate thereof is not an indebtedness
and, therefore, it is not a credit. Stockholders, as such,
are not creditors of the corporation. It is the prevailing
doctrine of American courts, repeatedly asserted in the
broadest terms, that the capital stock of a corporation is a
trust fund to be used more particularly for the security of
creditors of the corporation, who presumably deal with it
on the credit of its capital stock. (4 Corpus Juris, p. 383,
Sec. 505.) Therefore, the defendant-appellant Lim Chiu
Sing, not being a creditor of the Mercantile Bank of China,
although the latter is a creditor of the former, there is no
sufficient ground to justify a compensation. (Art. 1195 —
now Art. 1278, Civil Code.)’’
Problem — “B’’ borrowed from “C’’ P1,000.00 payable in
one year. When “C’’ was in the province, “C’s’’ 17-year-old son
borrowed P500.00 from “B’’ for his school tuition. However, the
son spent it instead nightclubing. When the debt to “C’’ fell
due, “B’’ tendered only P500.00, claiming compensation on the
P500.00 borrowed by “C’s’’ son.
Question No. 1 — Is there legal compensation? Why? (1981
Bar Problem)
Answer — There is no legal compensation. Under the
Civil Code, in order that there will be a valid and effective
compensation, it is essential that there must be two parties, who
in their own right, are principal creditors and principal debtors
of each other. In the instant case, “C’’ cannot be considered as a
party to the act of his 17-year-old son in borrowing P500.00 from
“B.’’ Consequently, he did not become a principal debtor of “B’’;
neither did “B’’ become a principal creditor of “C.’’ Therefore,
there can be no partial compensation of the P1,000.00 borrowed
by “B’’ from “C.’’
(Note: The above answer is based on Arts. 1278 and 1279,
No. 1, of the Civil Code and on decided cases.)

314
EXTINGUISHMENT OF OBLIGATIONS Art. 1279
Compensation

Question No. 2 — Suppose the minor son actually used


the money for school tuition, would the answer be different?
Reasons. (1981 Bar Problem)
Answer — There would be no difference in my answer.
There will still be no legal compensation. The fact that “C’s’’ son
actually used the P500.00 for his school tuition did not make “C’’
a party to the contract between his son and “B.’’ Therefore, “C’’
is not the principal debtor of “B’’ with respect to said amount.
(Note: The above answer is based on Arts. 1278 and 1279,
1, Civil Code.)

Idem; id. — Bound as principals. — By virtue of the provi-


sion of Art. 1279, No. 1, it is also necessary that the parties must be
bound as principals. In other words, the relation between the parties
must be that of principal creditor and principal debtor. Consequent-
ly, compensation cannot take place when one party is a debtor in one
obligation and a creditor of the other party’s creditor in another ob-
ligation or a creditor in one obligation and a guarantor of the other
party’s debtor in another obligation.297 Notwithstanding this rule,
however, the guarantor may set up compensation as regards what
the creditor may owe the principal debtor.298
When both parties are not only mutually creditors and debtors
in their own right, but are also principally bound as creditors and
debtors, compensation shall then take place, provided, of course, that
all of the other requisites are present. Thus, where the defendant
is indebted to the estate of the decedent for a certain amount
and the decedent, in turn, had, during his lifetime, contracted an
indebtedness from the defendant, the plaintiff-administrator of the
decedent’s estate cannot contend that compensation in this case is
not proper considering the fact that the decedent’s indebtedness is
chargeable against his estate.299 Similarly, where a corporation is
indebted to a stockholder for a certain amount and the stockholder,
on the other hand, is also indebted to the corporation for a certain
amount, it is evident that in such case compensation is proper.300 The
same is also true where the estate of a deceased person has a claim

297
8 Manresa, 5th Ed., Bk. 1, p. 718.
298
Art. 1280, Civil Code.
299
De la Peña vs. Hidalgo, 20 Phil. 323.
300
Brimo vs. Goldemberg, 69 Phil. 502.

315
Art. 1279 OBLIGATIONS

against the government and such claim has already been recognized
by the enactment of a corresponding law appropriating funds for
that purpose. Under the circumstances, since both the claim of the
intestate against the government and the claim of the government
for taxes against the estate of said intestate have already become
overdue and demandable as well as fully liquidated, compensation
has already taken place by operation of law in accordance with the
provisions of Arts. 1279 and 1290 of the Civil Code, and both debts
are therefore extinguished to the extent that the amount of one is
covered by the amount of the other.301

Gullas vs. Phil. National Bank


62 Phil. 519

It appears that a United States treasury warrant was


issued payable to Francisco Bacoa. This warrant was cashed
by the Philippine National Bank with plaintiff as one of the
indorsers, and subsequently, it was dishonored by the Insular
Treasury. Defendant bank then applied the deposit of plaintiff
to the payment of the amount paid by the bank for the warrant.
The question is: can there be a compensation in this case? The
Supreme Court held:
“The general rule is adopted for this jurisdiction that a
bank has a right of set-off of the deposit in its hands for the
payment of any indebtedness to it on the part of the depositor.
“As a general rule, a bank has a right of set-off of the
deposits in its hands for the payment of any indebtedness to
it on the part of a depositor. In Louisiana, however, a civil law
jurisdiction, the rule is denied, and it is held that a bank has no
right, without an order from or a special assent of the depositor
to retain out of his deposit an amount sufficient to meet his
indebtedness. The basis of the Louisiana doctrine is the theory
of confidential contracts arising from irregular deposits, e.g., the
deposit of money with a banker. With freedom of selection and
after full consideration, we have decided to adopt the general
rule in preference to the minority rule as more in harmony with
modern banking practice.’’

Idem; As to objects. — The second requisite in order that


legal compensation shall take place is that both debts must consist

301
Domingo vs. Carlitos, 8 SCRA 443.

316
EXTINGUISHMENT OF OBLIGATIONS Art. 1279
Compensation

in a sum of money, or if the things due are fungibles, they must


be of the same kind and also of the same quality if the latter has
been stated. It is evident that this requisite contemplates only
obligations to give. The reason is that compensation is as a general
rule not possible in obligations to do because of the differences in the
respective capacities of the obligors.302
It must be observed that the Code uses the word “consumable,”
although what is actually contemplated is the word “fungible.” This
is evident because of the fact that “consumables” are those movables
which cannot be used in a manner appropriate to their nature
without being consumed, while “fungibles’’ are those which may be
exchanged or compensated by another of the same kind and quality.
Idem; As to maturity. — The third requisite is that both
debts must be due. Consequently, natural obligations, conditional
obligations before the fulfillment of the event which constitutes the
condition, and obligations with a period before the expiration of the
period, cannot be compensated.303
Idem; As to liquidation and demandability. — The fourth
requisite is that the debts to be compensated must be liquidated
and demandable. Liquidated debts are those the amount of which
may be determined by a simple arithmetical operation.304 Hence, if
one of the debts or both of them are still unliquidated, there can be
no compensation. If both are partially liquidated compensation may
take place with respect to the parts which are liquidated, but not
with respect to those which are unliquidated, applying by analogy
the rule stated in Art. 1248, since compensation is merely a sort of
simplified payment.305
Thus, the Supreme Court, in the case of Silahis Mktg. Corp. vs.
IAC (180 SCRA 217), held that compensation is not proper where
the claim of the person asserting the set-off against the other is not
clear nor liquidated: compensation cannot extend to unliquidated,
disputed claim existing from breach of contract.
Reading No. 4 of Art. 1279 with No. 3, it is evident that in order
that the debts to be compensated may be considered demandable,

302
8 Manresa, 5th Ed., Bk. 1, p. 723.
303
3 Castan, 7th Ed., p. 275; 8 Manresa, 5th Ed., Bk. 1, pp. 724-725.
304
8 Manresa, 5th Ed., Bk. 1, p. 725.
305
Ibid., pp. 725-726.

317
Art. 1280 OBLIGATIONS

it is necessary that such debts must be due and, at the same time,
liquidated.306
Idem; As to claims of third persons. — The fifth requisite is
that there must be no retention or controversy, commenced by third
persons and communicated in due time to the debtor, over either of
the debts. Retention consists in the application of the credit of one
of the parties to the satisfaction of the claims of a third person. It is
evident that in such a case there can be no compensation. However,
if there is an excess or balance remaining after the application
of the credit, compensation will still take place, but only to the
extent that the credit is not affected by the retention. Controversy
refers to a case in which a third person claims to be the creditor.
In other words, the party interested in the compensation and the
third person each claims that he is the real creditor. The effect of
such case is a provisional suspension of the compensation. If the
credit is adjudicated to the former, compensation takes place; if it is
adjudicated to the latter, compensation cannot take place.307

Art. 1280. Notwithstanding the provisions of the preced-


ing article, the guarantor may set up compensation as re-
gards what the creditor may owe the principal debtor.308
Right of Guarantor To Set Up Compensation. — The
above article constitutes an exception to the rule stated in Art. 1279,
No. 1, in relation to Art. 1278. Under Arts. 1278 and 1279, No. 1, the
principal debtor can only set up compensation against the creditor
for what the latter owes him. He cannot set up what such creditor
owes the guarantor because then that would violate the rule that
the parties must be principally bound. The guarantor, on the other
hand, in case the payment of the debt is demanded from him, may
set up compensation, not only for what such creditor owes him, but
also for what such creditor owes the principal debtor. This rule is
based on the fact that the bond of the guarantor cannot be resorted
to so long as the debtor can pay although it may be in the abbrevi-
ated form of compensation and also on the fact that if the principal

306
Luengco vs. Herrero, 17 Phil. 29; Compania General de Tobacos vs. French
and Unson, 39 Phil. 34.
307
8 Manresa, 5th Ed., Bk. 1, pp. 720-722.
308
Art. 1197, Spanish Civil Code.

318
EXTINGUISHMENT OF OBLIGATIONS Arts. 1281-1283
Compensation

obligation is extinguished, the accessory obligation of the guarantor


is also extinguished since it is subordinated thereto.309

Art. 1281. Compensation may be total or partial. When


the two debts are of the same amount, there is a total com-
pensation.310
Art. 1282. The parties may agree upon the compensation
of debts which are not yet due.311

Voluntary Compensation. — Actually, Art. 1282 is an


example of what is known as voluntary compensation. Thus, if the
obligation of A is pure, while the obligation of B is with a term or
period which has not yet expired, the general rule is that there can
be no compensation because B’s obligation is not yet due. However,
the parties may nevertheless agree upon the compensation of the
two obligations.

Art. 1283. If one of the parties to a suit over an obligation


has a claim for damages against the other, the former may set
it off by proving his right to said damages and the amount
thereof.312

Judicial Compensation. — In reality, what is set off against


the other party is a counterclaim. It will be remembered that “a
counterclaim must be pleaded to be effectual; whereas, a compensa-
tion takes place by mere operation of law.’’313 Hence, the counter-
claim defined by the Rules of Court314 is not the legal compensation
contemplated by the Code. This is so, because by its very nature a
set off or counterclaim can have no effect unless it is pleaded. In
addition, the claim is not liquidated; consequently, compensation
cannot take place. However, when the defendant who has an unliq-
uidated claim for damages against the plaintiff sets it off by proving
his right to said damages and the amount thereof, it is converted

309
8 Manresa, 5th Ed., Bk. 1, pp. 719-720.
310
New provision.
311
New provision.
312
New provision.
313
Yap Unki vs. Cha Japco, 14 Phil. 602.
314
Sec. 6, Rule 6, New Rules of Court.

319
Arts. 1284-1285 OBLIGATIONS

into a liquidated claim by court decree, in which case compensa-


tion shall take effect from the moment the judgment liquidating the
claim has become final.

Art. 1284. When one or both debts are rescissible or


voidable, they may be compensated against each other be-
fore they are judicially rescinded or avoided.315
Rules in Case of Rescissible or Voidable Debts. — It
is evident that the above rule is an exception to the general rule
of demandability in order that compensation shall take place.
This exception is justified by the fact that rescissible or voidable
obligations are considered demandable while the vices with which
they are tainted are not yet judicially declared. Consequently, if the
action for rescission or annulment is not exercised, or is renounced,
or if the debt or debts are ratified the obligation or obligations are
susceptible of compensation.316

Art. 1285. The debtor who has consented to the assign-


ment of rights made by a creditor in favor of a third person,
cannot set up against the assignee the compensation which
would pertain to him against the assignor, unless the assign-
or was notified by the debtor at the time he gave his consent,
that he reserved his right to the compensation.
If the creditor communicated the cession to him but
the debtor did not consent thereto, the latter may set up the
compensation of debts previous to the cession, but not of
subsequent ones.
If the assignment is made without the knowledge of the
debtor, he may set up the compensation of all credits prior
to the same and also later ones until he had knowledge of the
assignment.317
Effect of Assignment of Rights. — If a creditor assigns his
credit to a third person, what is the effect of such assignment upon
the debtor’s right to set up the defense of compensation in case the

315
New provision.
316
8 Manresa, 5th Ed., Bk. 1, p. 725.
317
Art. 1198, Spanish Civil Code, in modified form.

320
EXTINGUISHMENT OF OBLIGATIONS Arts. 1284-1285
Compensation

assignee tries to enforce the credit against him? Before answering


this question, attention must be called to the fact that at the time
the assignment of rights is made by a creditor to a third person
compensation may have already taken place. Hence, a distinction
must always be made between the effects of the assignment
when compensation has already taken place and the effects when
compensation has not yet taken place.
Idem; When compensation has taken place. — Inasmuch
as compensation takes place ipso jure without any intervention
on the part of the interested parties and, as a consequence, one or
the other obligation is extinguished, it follows that the subsequent
assignment of rights by a creditor to a third person cannot in any way
affect the debtor with respect to the compensation which has already
taken place. The assignee, on the other hand, can only demand
indemnity for damages from the assignor on the ground of fraud.
The only exception to this rule is when the debtor had consented to
the assignment, in which case the assignee can still demand for the
payment of the credit.318 This exception is based on the fact that the
law cannot protect a person who has acted fraudulently in giving
his consent. Besides, such consent is deemed to be a waiver or a
renunciation of the compensation that had already taken place.319
Idem; When compensation has not taken place. — When
compensation has not yet taken place because of the absence of
any or some of those requisites which are necessary, such as when
the debts are not yet due or when they are not yet liquidated, and
the creditor assigns his right to a third person, the effects of such
assignment once all of the requisites for compensation are present
shall depend upon whether it was made with the consent, or with
the knowledge but without the consent, or without the knowledge of
the debtor.
Idem; id. — With consent of debtor. — If the creditor
assigned his right or credit to a third person with the consent of the
debtor, the latter cannot set up against the assignee the compensation
which would have pertained to him against the assignor. However,
if the debtor notified the assignor, at the time he gave his consent,
that he is reserving his right to the compensation, he can still set up

318
Art. 1285, par. 1, Civil Code.
319
8 Manresa, 5th Ed., Bk. 1, p. 736.

321
Arts. 1284-1285 OBLIGATIONS

the defense of compensation against the assignee in case the latter


demands the payment of the assigned credit.320
Idem; id. — With knowledge, but without consent, of
debtor. — Under the second paragraph of Art. 1285, if the creditor
notified the debtor of the assignment but the latter did not consent
thereto, and subsequently, the assignee demands the payment
of the assigned credit from the debtor, the latter may set up the
defense of compensation of debts prior to the assignment, but not of
subsequent ones.321 Evidently, the purpose of this rule is to prevent
fraud.
It is clear that the assignment cannot take effect as far as the
debtor is concerned unless he is properly notified thereof. Hence, the
different rules may be restated as follows:
(1) If the notification preceded the assignment, the effects
of the assignment are produced from the time it is made and not
from the time the notification is given; consequently, the debtor can
set up the defense of compensation of debts contracted prior to the
assignment.
(2) If the notification and the assignment are made simul-
taneously, then there can be no question about the time when the
effects of the assignment are produced. In such case, the debtor can
set up the defense of compensation of debts contracted prior to the
assignment.
(3) If the notification is given after the assignment had
already been made, it is evident that the assignment must have been
effected without the knowledge and consent of the debtor, in which
case the provision of the last paragraph of Art. 1285 is applicable.
Idem; id. — Without knowledge of debtor. — If the as-
signment is made without the knowledge of the debtor, and subse-
quently, the assignee demands the payment of the credit which was
assigned, the debtor may set up the defense of compensation of all
credits which he may have against the assignor and which may have
become demandable, before he was notified of the assignment.322 In
other words, if the debtor is not aware of the assignment and the as-

320
Art. 1285, par. 1, Civil Code.
321
Art. 1285, par. 2, Civil Code.
322
Art. 1285, par. 3, Civil Code.

322
EXTINGUISHMENT OF OBLIGATIONS Arts. 1286-1288
Compensation

signor subsequently contracts new debts from him, such obligations


which become due and demandable before he was notified of the
assignment can be set off by way of compensation against the credit
which was assigned. In such case, the only remedy of the assignee is
a personal action for indemnification against the assignor.323

Art. 1286. Compensation takes place by operation of law,


even though the debts may be payable at different places,
but there shall be an indemnity for expenses of exchange or
transportation to the place of payment.324
Art. 1287. Compensation shall not be proper when one
of the debts arises from a depositum or from the obligations
of a depositary or of a bailee in commodatum.
Neither can compensation be set up against a creditor
who has a claim for support due by gratuitous title, without
prejudice to the provisions of paragraph 2 of Article 301.325
Art. 1288. Neither shall there be compensation if one
of the debts consists in civil liability arising from a penal
offense.326

Debts Which Cannot Be Compensated. — There are


five kinds of debts or obligations which are not susceptible of
legal compensation. They are: (1) debts arising from contracts of
depositum;327 (2) debts arising from contracts of commodatum;328 (3)
claims for support due by gratuitous title;329 (4) obligations arising
from criminal offenses;330 and (5) certain obligations in favor of the
government, such as taxes, fees, duties and others of a similar
nature.331
With respect to the first, it will be observed that the Code
uses the word “depositum” instead of the word “deposit.” Obviously,

323
8 Manresa, 5th Ed., Bk. 1, p. 738.
324
Art. 1199, Spanish Civil Code, in modified form.
325
Art. 1200, Spanish Civil Code.
326
New provision.
327
Art. 1287, Civil Code.
328
Ibid.
329
Ibid.
330
Art. 1288, Civil Code.
331
4 Tolentino, Civil Code 1956. Ed., p. 349.

323
Arts. 1289-1290 OBLIGATIONS

the purpose is to prevent confusion with a bank deposit in which a


relationship of creditor and debtor is created between the depositor
and the bank.332 With respect to the third, although the rule is that
the right to receive support cannot be compensated with what the
recipient owes the obligor, yet this rule cannot be applied to support
in arrears.333
Evidently, all of these prohibitions are based on justice. Some
of these obligations are based on trust and confidence; others on
self-preservation. Justice and humanity demand that they must be
performed.

Art. 1289. If a person should have against him several


debts which are susceptible of compensation, the rules on
the application of payments shall apply to the order of the
compensation.334
Art. 1290. When all the requisites mentioned in Article
1279 are present, compensation takes effect by operation of
law, and extinguishes both debts to the concurrent amount,
even though the creditors and debtors are not aware of the
compensation.335

Effect of Compensation. — The most fundamental effect of


compensation is that it extinguishes both debts to the extent that
the amount of one is covered by the amount of the other.336 If the
compensation is total because the amounts of both debts are equal,
it is evident that both debts would be totally extinguished, since
the amount of one is entirely covered by the amount of the other;
however, if the compensation is partial because the amounts are
different, it is equally evident that the extinguishment would be
total with respect to one and partial with respect to the other.337
How about accessory obligations? Since the principal obligations
to which they are subordinated are extinguished, it follows that such
accessory obligations are also extinguished. Such extinguishment

332
Gullas vs. Phil. Nat. Bank, 62 Phil. 519.
333
Arts. 1287, 301, Civil Code.
334
Art. 1201, Spanish Civil Code.
335
Art. 1202, Spanish Civil Code, in modified form.
336
Art. 1290, Civil Code; Acuna vs. Dievas, 12 Phil. 250.
337
8 Manresa, 5th Ed., Bk. 1, p. 747.

324
EXTINGUISHMENT OF OBLIGATIONS Art. 1291
Novation

may be total or partial depending upon whether the compensation is


total or partial.338
Idem; When compensation takes effect. — Since compen-
sation takes effect by operation of law, it is clear that it will take
effect from the moment all of the essential requisites prescribed by
law are present, even though the creditor and debtor are not aware
thereof.339 Legal compensation operates even against the will of the
interested parties even without their consent. Since this compensa-
tion takes place ipso jure, its effects arise on the very day on which
all its requisites concur. When used as a defense, it retroacts to the
duty when its requisites are fulfilled. (BPI vs. CA, et al., 255 SCRA
571.) This rule, however, is applicable only to legal compensation.
Nevertheless, it is equally clear that voluntary compensation will
take effect from the moment agreed upon by the parties, while ju-
dicial compensation will take effect from the moment that the judg-
ment becomes final and executory.340

Section 6. — Novation

Art. 1291. Obligations may be modified by:


(1) Changing their object or principal conditions;
(2) Substituting the person of the debtor;
(3) Subrogating a third person in the rights of the
creditor.341
Concept of Novation. — Novation is the substitution or
change of an obligation by another, resulting in its extinguishment
or modification, either by changing its object or principal conditions,
or by substituting another in place of the debtor, or by subrogating
a third person in the rights of the creditor.342 It is one of the modes of

338
Ibid.
339
Art. 1290, Civil Code. Legal compensation operates even against the will of the
interested parties even without their consent. Since this compensation takes place
ipso jure, its effects arise on the very day on which all its requisites concur. When
used as a defense, it retroacts to the date when its requisites are fulfilled. (BPI vs.
CA, et al., 255 SCRA 571.)
340
See 4 Tolentino, Civil Code, 1956 Ed., p. 351.
341
Art. 1203, Spanish Civil Code.
342
8 Manresa, 5th Ed., Bk. 1, p. 751.

325
Art. 1291 OBLIGATIONS

extinguishing obligations through the creation of a new one effected


by the change or substitution of an obligatory relation by another
with the intention of substantially extinguishing or modifying the
same.343
The distinctive feature or characteristic of novation is that al-
though it extinguishes the obligation, it also gives birth to another
obligation. It has, therefore, a two-fold purpose — that of extinguish-
ing the old obligation, and that of giving birth to a new obligation to
take the place of the old.344 However, unlike the others, as a mode of
extinguishment, it is relative in character, not absolute.345
Requisites. — In every novation there are four essential
requisites: first, a previous valid obligation; second, agreement of
the parties to the new obligation; third, extinguishment of the old
obligation; and fourth, validity of the new obligation.346
Novation, in its broad concept, may either be extinctive or
modificatory. It is extinctive when an old obligation is terminated by
the creation of a new obligation that takes the place of the former;
it is merely modificatory when the old obligation subsists to the
extent it remains compatible with the amendatory agreement. An
extinctive novation results either by changing the object or principal
conditions (objective or real), or by substituting the person of the
debtor or subrogating a third person in the rights of the creditor
(subjective or personal). Under this mode, novation would have
dual functions — one to extinguish an existing obligation, the other
to substitute a new one in its place — requiring a conflux of four
essential requisites: (1) a previous valid objection; (2) an agreement
of all parties concerned to a new contract; (3) the extinguishment of
the old obligation; and (4) the birth of a valid new obligation. (Quinto
vs. People, April 14, 1999, 305 SCRA 708.)

Problem — Suppose that under the judgment obligation,


the liability of the judgment debtor is for the amount of P6,000,
but both judgment debtor and judgment creditor subsequently
entered into a contract reducing the liability of the former to

343
4 Sanchez Roman 242; quoted by Court of Appeals in Government vs. Bautis-
ta, CA, 37 Off. Gaz. 1880.
344
Tiu Siuco vs. Habana, 45 Phil. 707.
345
8 Manresa, 5th Ed., Bk. 1, p. 751.
346
Tiu Siuco vs. Habana, 45 Phil. 707.

326
EXTINGUISHMENT OF OBLIGATIONS Art. 1291
Novation

only P4,000, is there an implied novation which will have the


effect of extinguishing the judgment obligation and creating a
modified obligatory relation? Reasons.
Answer — There is no implied novation in this case. We
see no valid objection to the judgment debtor and the judgment
creditor in entering into an agreement regarding the monetary
obligation of the former under the judgment referred to. The
payment by the judgment debtor of the lesser amount of P4,000,
accepted by the creditor without any protest or objection and
acknowledged by the latter as in full satisfaction of the money
judgment, completely extinguished the judgment debt and
released the debtor from his pecuniary liability.
Novation results in two stipulations — one to extinguish
an existing obligation, the other to substitute a new one in its
place. Fundamentally, it is that novation effects a substitution
or modification of an obligation by another or an extinguishment
of one obligation by the creation of another. In the case at
hand, we fail to see what new or modified obligation arose out
of the payment by the judgment debtor of the reduced amount
of P4,000 to the creditor. Additionally, to sustain novation
necessitates that the same be so declared in unequivocal terms
clearly and unmistakably shown by the express agreement of
the parties or by acts of equivalent import — or that there is
complete and substantial incompatibility between the two
obligations. (Sandico vs. Piguing, 42 SCRA 322.)

Kinds. — Novation may be classified as follows:


(1) As to its essence, novation may be (a) objective or real,
(b) subjective or personal, or (c) mixed.347 Objective or real novation
refers to the change either in the cause, object or principal conditions
of the obligations.348 Subjective or personal novation, on the other
hand, refers to the substitution of the person of the debtor or to the
subrogation of a third person in the rights of the creditor.349 When
there is a substitution of the person of the debtor, it is called passive;
when there is a subrogation in the rights of the creditor, it is called
active. Mixed novation refers to a combination of objective and
subjective novation.350

347
3 Castan, 7th Ed., p. 284.
348
Art. 1291, No. 1, Civil Code.
349
Art. 1291, Nos. 2 and 3, Civil Code.
350
3 Castan, 7th Ed., p. 284.

327
Art. 1291 OBLIGATIONS

(2) As to its form or constitution, novation may be express


or tacit, one and the other are recognized by the Code.351 When it is
declared in unequivocal terms that the old obligation is extinguished
by a new one which substitutes the same, the novation is express;
when the old and the new obligations are incompatible with each
other on every point, the novation is tacit or implied.352
(3) As to its extent or effect, novation may be total or partial
depending upon whether there is an absolute extinguishment of the
old obligation or merely a modification.353
Idem; Objective novation. — According to Castan, objective
or real novation, which is the novation referred to in No. 1 of Art.
1291, may be effected by: (1) changing the cause of the obligation; or
(2) changing the object of the obligation; or (3) changing the principal
or essential conditions of the obligation.354
Idem; id. — Change of cause. — Although the Code does not
speak of a change in the cause of the obligation as one of the methods
whereby novation may be effected, it is evident that such a change
or modification will result in the extinguishment of the obligation.
Manresa gives the example of a contract of sale or a contract of lease
in which the price has not yet been paid to the vendor or lessor. If
the parties to the contract subsequently enter into a new agreement
whereby the obligation to pay is converted into a loan made to the
vendee or lessee, the result is a real or objective novation.355 Castan,
on the other hand, gives the example of a contract of loan converted
into a contract of deposit.356
Idem; id. — Change of object. — It is also evident that when
there is a change or modification of the object of a previous obligation
there is a novation of such obligation. Thus, in those cases where a
certain amount is due to the obligee or creditor, any modification
in the amount due or any change whereby the obligation to pay
is converted into an obligation to render a personal service would
constitute a novation. The same is true in case of dation in payment.357

351
Ibid., p. 285.
352
Art. 1292, Civil Code.
353
3 Castan, 7th Ed., p. 285.
354
Ibid., pp. 289-920.
355
8 Manresa, 5th Ed., Bk. 1, p. 772.
356
3 Castan, 7th Ed., p. 289.
357
Ibid., p. 290.

328
EXTINGUISHMENT OF OBLIGATIONS Art. 1291
Novation

Idem; id. — Change of principal conditions. — It is also


evident that when there is a change or modification of the condi-
tions of a previous obligation there is also a novation. However, the
change or modification must refer to a principal, not incidental, con-
dition resulting in the alteration or modification of the essence of
the obligation. In other words, only those changes of an essential,
not accidental, character can effect a novation of the previous or
original obligation.358 Consequently, where the debtor merely exe-
cutes another instrument reiterating or ratifying his obligation to
the creditor,359 without changing its object or principal conditions,
although there might be minor changes with regard to the form of
payment,360 or with regard to additional facilities361 or benefits362 af-
forded to him, there is no novation of the obligation. Even granting
that there were some changes and alterations made after the perfec-
tion of a contract, such as where both contracting parties agree that
certain additions shall be made to a building under construction,
such changes shall not result in the novation thereof, provided that
they are not so great that it will be impossible to follow the original
contract; hence, the contractor cannot say that the original contract
has been entirely abandoned in such a way that he can now recover
from the other party on the basis of quantum meruit.363 This conclu-
sion gains added force where it is established that the original con-
tract was used as the basis for the construction of the building, and
those alterations which were subsequently made were founded upon
the original contract with the understanding that the owner shall
pay the reasonable value of all such alterations.364 Similarly, where
the change or alteration consists in providing for another method of
payment365 or for additional security,366 it is clear that such change
or modification cannot constitute a novation of the previous obliga-
tion, considering the fact that the change is not with regard to an

358
Ibid., p. 291.
359
Ramos vs. Gibbon, 67 Phil. 371; Padilla vs. Levy Hermanos, Inc., 69 Phil. 681;
Asiatic Petroleum Co. vs. Sim Poo, CA, 49 Off. Gaz. 44.
360
Ramos vs. Gibbon, 67 Phil. 371.
361
Asiatic Petroleum Co. vs. Sim Poo, CA, 40 Off. Gaz. 44; Yellow Ball Freight
Lines, Inc. vs. Western Export Co., CA, G.R. No. 10422-R, Sept. 3, 1954.
362
Padilla vs. Levy Hermanos, Inc., 69 Phil. 681.
363
Tiu Siuco vs. Habana, 45 Phil. 707.
364
Ibid.
365
Zapanta vs. De Rotaeche, 21 Phil. 154.
366
Bank of the P.I. vs. Herridge, 47 Phil. 57.

329
Art. 1292 OBLIGATIONS

essential condition of the previous obligation and that there can be


no incompatibility between the old and the new obligation.

Art. 1292. In order that an obligation may be extinguished


by another which substitutes the same, it is imperative that
it be so declared in unequivocal terms, or that the old and
the new obligations be on every point incompatible with
each other.367

Form of Extinguishment. — One of the essential requisites


of novation is the extinguishment of the previous obligation by the
new one.368 What is the form of this extinguishment? The Code does
not provide for any specific form. However, under Art. 1292, it may
be either express or implied. It is express when there is a declaration
in unequivocal terms that the old obligation is extinguished by the
new which substitutes it; it is tacit or implied when the old and
the new obligations are incompatible on every point.369 Novation
as one of the modes of extinguishing an obligation, requires the
concurrrence of the following: (1) there is a previous valid obligation;
(2) the parties concerned agree to a new contract; (3) the old contract
is extinguished; and (4) there is a valid new contract. (Cruz vs. Court
of Appeals, July 27, 1998, 293 SCRA 239.)
The rule is settled that novation by presumption has never
been favored. To be sustained it must be established that the old
and new contracts are incompatible in all points, or that the will
to novate appears by express agreement of the parties or in acts
of similar import;370 in other words, the animus novandi or the
intent to substitute a new obligation for the old one must be clearly
established before we can say that there is a novation resulting in
the extinguishment of the old obligation and in the creation of a
new one.371 Novation is never presumed, and the animus novandi,

367
Art. 1204, Spanish Civil Code.
368
Tiu Siuco vs. Habana, 45 Phil. 707.
369
Art. 1292, Civil Code.
370
Dungo vs. Lopena, 116 Phil. 1305; Magdalena Estate, Inc. vs. Rodriguez, 18
SCRA 967.
371
Martinez vs. Cavives, 25 Phil. 581; Tiu Siuco vs. Habana, 45 Phil. 707; Young
vs. Villa, 49 Off. Gaz. 1818; Joe’s Radio & Electrical Supply vs. Alto Electronics Corp.,
104 Phil. 333.

330
EXTINGUISHMENT OF OBLIGATIONS Art. 1292
Novation

whether totally or partially, must appear by express agreement of


the parties, or by their acts that are too clear and unequivocal to be
mistaken. (Quinto vs. People, April 14, 1999, 305 SCRA 708.) In the
words of the Supreme Court:

“Novation of contracts cannot be presumed in any case


unless it is a necessary result of the express will of the parties,
or that the old and the new obligations are incompatible in all
points.
It is not proper to consider an obligation novated by
unimportant modifications which do not alter its essence and
when it is not extinguished by another which takes its place or
substitutes the person of the debtor.
Novation is a contract, the object of which is: either to
extinguish an existing obligation and to substitute a new one in
its place; or to discharge an old debtor and substitute a new one
for him; or to substitute a new creditor for an old creditor with
regard to whom the debtor is discharged.
It is never presumed. The intention must clearly result
from the terms of the agreement or by a full discharge of the
original debt. Novation by the substitution of a new debtor can
take place without the consent of the debtor but the delegation
does not ooiperate a novation, unless the creditor has expressly
declared that he intends to discharge with delegating debtor,
and the delegating debtor was not in open failure or insolvency
at the time. The mere indication by a debtor of a person who is
to pay in his place does not operate a novation. Delegatus debitor
est odiosus in lege.’’372

In People’s Bank and Trust Co. vs. Syvel’s, Inc. (164 SCRA
247), Syvel’s had a loan with People’s Bank and Trust Co. in the
amount of P900,000.00 secured by a chattel mortgage. Syvel’s
failed to pay the loan and People’s Bank and Trust Co. foreclosed
the chattel mortgage. Syvel’s opposed the foreclosure of the chattel
mortgage on the ground that the obligation secured by the chattel
mortgage sought to be foreclosed was novated by the subsequent
execution of a real estate mortgage as additional collateral to the
obligation secured by said chattel mortgage. The Supreme Court
held: “Novation takes place when the object or principal condition of

372
Martinez vs. Cavives, 25 Phil. 581.

331
Art. 1292 OBLIGATIONS

an obligation is changed or altered. It is elementary that novation


is never presumed, it must be explicitly stated or there must be
manifest incompatibility between the old and the new obligation in
every aspect. In the case at bar, there is nothing in the Real Estate
Mortgage which supports appellants’ submission. The contract
on its face does not show the existence of an explicit novation
nor incompatibility on every point between the old and the new
agreements as the second contract evidently indicates that the same
was executed as new additional security to the chattel mortgage
previously entered into by the parties.’’
In the case of Sps. Francisco and Ruby Reyes vs. BPI Family
Savings Bank, Inc., et al., G.R. Nos. 149840-41, March 31, 2006,
Petitioner spouses executed a Real Estate Mortgage on their
property in favor of respondent BPI FSB to secure a P15,000,000 loan
of Transbuilders Resources & Development Corporation. When the
latter failed to pay within the stipulated period of one year, the loan
was restructured providing that the loan shall be paid in quarterly
installments at interest of 18% per annum. Petitioners averred that
they were not informed about the restructuring of the loan. Hence,
they wrote BPI FSB requesting cancellation of their mortgage and
the return of their title. They claimed that the new loan novated the
loan agreement and that because the novation was without their
consent, they were allegedly released from their obligation under
the mortgage.BPI FSB refused to cancel the mortgage and instituted
extrajudicial foreclosure proceedings against the petitioners. The
latter filed the instant petition.

Question —Was there a novation of the mortgage loan


contract?
Answer — No. Well-settled is the rule that with respect to
obligations to pay a sum of money, the obligation is not novated
by an instrument that expressly recognizes the old, changes only
the terms of payment, adds other obligations not incompatible
with the old ones, or the new contract merely supplements the
old one.
BPI FSB and Transbuilders only extended the repayment
term of the loan from one year to 20 quarterly installments
at 18% per annum. There was absolutely no intention by the
parties to supersede or abrogate the old loan contract secured
by the REM executed by the petitioners in favor of BPI FSB. In

332
EXTINGUISHMENT OF OBLIGATIONS Art. 1292
Novation

fact, the intention of the new agreement was precisely to revive


the old obligation after the original period expired and the loan
remained unpaid. In the absence of an express agreement,
novation takes place only when the old and the new obligations
are incompatible on every point.

Idem; Express novation. — In order that an obligation may


be expressly extinguished by another which substitutes the same, it
is imperative that it be so declared in unequivocal terms. Express
novation can therefore take place only when the intention to effect a
novation clearly results from the terms of the agreement or is shown
by a full discharge of the original debt; in other words, it can only
take place when the contracting parties disclose that the object in
making the new contract is to extinguish the old one; otherwise,
the old contract remains in force and the new one is added to it.
Consequently, the mere fact that the debtor had signed a second
promissory note for the balance of his indebtedness, does not mean
the extinguishment of the first promissory note, wherein the terms
of payment were expressly stipulated. Those terms, therefore, shall
still govern the manner of liquidation of the said balance.373
Idem; Implied novation. — In order that an obligation
may be impliedly extinguished by another which substitutes the
same, it is imperative that the old and the new obligations must be
incompatible with each other on every point.
The test of incompatibility between the old and the new obli-
gations is to determine whether or not both of them can stand to-
gether, each having its own independent existence. If they can stand
together, there is no incompatibility; consequently, there is no nova-
tion. If they cannot stand together, there is incompatibility; conse-
quently, there is a novation.374
Thus, where the new contract is merely a reiteration or ac-
knowledgment or ratification of the old contract with slight modifi-
cations or alterations with respect to the cause or object or principal
conditions, it is clear that the two contracts can stand together, and
consequently, there can be no incompatibility between them. There-

373
Phil. Nat. Bank vs. Granada, CA, 51 Off. Gaz. 62.
374
Borja vs. Mariano, 66 Phil. 93.

333
Art. 1292 OBLIGATIONS

fore, there can be no novation.375 This is so even where the second


contract provides for another method of payment,376 or for additional
security,377 or for the postponement of the date of payment.378 As a
matter of fact, even where the creditor receives a guaranty or ac-
cepts payments from a third person who has agreed to assume the
obligation, so long as there is no agreement that the first debtor
shall be released from responsibility, there is no novation, and the
creditor can still enforce t