CHAPTER 1
1225)
General Provisions
Article 1156. An obligation is a juridical necessity to give, to do or
not to do. (n)
Obligations may either be civil or natural.
Civil obligation(positive law) – one which has a binding force in
law and which gives the creditor the right of enforcing it against
the debtor in a court of justice.
Natural obligation (equity and natural law) – one which cannot be
enforced by action, but which is binding on the party who makes it
in conscience and according to the natural law.
Requisites of an obligation:
1. Juridical or legal tie – which binds the parties to the
obligation and which may arise from either bilateral or
unilateral acts of persons’
2. Active subject – known as the creditor who can demand the
fulfillment of the obligation.
3. Passive subject – known as the debtor, against whom the
obligation is juridically demandable.
4. The fact, prestation or service which constitutes the object
of the obligation.
5. *Form – this requisite cannot be considered essential.
Obligations arising from law, quasi-contracts, acts or
omissions punishable by law, quasi-delicts do not require
any form or whatsoever. It is only essential from certain
contracts.
Classification of Obligations
1. Pure and conditional (Arts. 1179-1192)
2. With a Period (Arts. 1193-1198)
3. Alternative and Facultative (Arts. 199-1206)
4. Joint and Solidary (Arts. 1207-1222)
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5. Divisible and Indivisible (Arts. 1223-Arts.
6. With a penal clause (Arts. 1226-1230)
Other classifications scattered in the Civil Code:
Legal, Conventional and Penal (Arts. 1158-1162);
As to parties:
Unilateral and bilateral (Arts. 1169-1191);
Unilateral – where only one party is bound.
Bilateral (reciprocal) – where both parties are mutually
bound.
Individual and collective (Arts. 1207,1223);
Individual – where there is only one debtor and
Collective – where there are several debtors
Joint – each debtor is only liable for his
proportionate share
Solidary – each debtor may be held for the whole
obligation
As to object:
Determinate and generic (Arts. 1163-1166);
Simple and multiple
Positive and negative (Arts. 1167-1168);
Real and personal (Arts. 1163-1168);
Divisible and Indivisible (Arts. 1223-Arts. 1225)
Accessory and Principal (Arts. 1166,1266);
As to perfection and extinguishment:
Pure – obligation not subject to any condition/term. Immediately
demandable.
Conditional – when obligation is subject to a condition which may
be
Suspensive - the happening of the condition results in the
birth of the obligation
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 Resolutory, in which the happening of the condition results
in the extinguishment of the obligation.
With a term/period – when the obligation is subject to a term
Suspensive (from a day certain) – in which the obligation is
demandable only upon the expiration of the term.
Resolutory (to a day certain) – in which the obligation is
demandable only upon the expiration of the term
Article 1157. Obligations arise from:
(1) Law;
(2) Contracts;
(3) Quasi-contracts;
(4) Acts or omissions punished by law; and
(5) Quasi-delicts. (1089a)
Mainly, the sources are only 1. Law and 2. Contracts. Quasi-
contracts, acts or omissions punished by law and quasi-delicts are
all deemed to be arising from law.
Article 1158. Obligations derived from law are not presumed.
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. (1090)
Article 1159. Obligations arising from contracts have the force of
law between the contracting parties and should be complied with
in good faith. (1091a)
Contract
Consensual contracts
- meeting of minds between two persons whereby one binds
himself , with respect to the other, to give something or
render some service.
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- Perfected by mere consent. Once 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.
Article 1160. Obligations derived from quasi-contracts shall be
subject to the provisions of Chapter 1, Title XVII, of this Book. (n)
Types of quasi-contracts:
Negotiorum gestio – juridical relation which arises whenever a
person voluntarily takes charge of the agency or management of
the business/property of another without sufficient authority.
is a form of spontaneous voluntary agency in which an intervenor or
intermeddler, the gestor, acts on behalf and for the benefit of
a principal (dominus negotii), but without the latter's prior
consent. The underlying principle being that negotiorum gestio is
intended as an act of generosity and friendship and not to allow the
gestor to profit from his intermeddling.
Once the gestor or officious manager has assumed the
agency or management, he shall be obliged to continue such
agency or management until the termination of the affair
and its incidents.
Solutio Indebiti – the juridical relation which arises whenever a
person unduly delivers a thing through mistake to another who
has no right to demand it.
Once the delivery has been made, the recipient of the
delivery shall have the obligation to return the property
delivered or money paid.
“Negligence is the failure to observe, for the protection of the
interests of another person, that degree of care, precaution, and
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vigilance which the circumstances justly demand, whereby such
other person suffers injury.” (U.S. v. Barrias, 23 Phil. 434).
Article 1161. Civil obligations arising from criminal offenses shall
be governed by the penal laws, subject to the provisions of Article
2177, and of the pertinent provisions of Chapter 2, Preliminary
Title, on Human Relations, and of Title XVIII of this Book,
regulating damages. (1092a)
Article 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.(n)
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. There are
offenses and special crimes without civil liability. treason,
rebellion, illegal possession of firearm and gambling. But a person
who is not criminally liable may still be civilly liable.
Rules 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.
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(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.
(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;
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 (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.
Section 7 of the Revised Rules on Criminal Procedure 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)
Examples of Independent Civil Action:
“In cases of defamation (libel, slander), fraud (estafa, deceit), and
physical injuries (including attempted, frustrated, or
consummated homicide, murder, parricides or infanticide) a civil
action for damages, entirely separate and distinct from the
criminal action may be brought by the injured party (or his heirs).
Such civil action shall proceed independently of the criminal
prosecution, and shall require only a preponderance of evidence.”
(Art. 33, Civil Code).
Is There Need of Making a Reservation of the Civil Case
(Where the Law Grants an Independent Civil Action) if a
Criminal Case is First Brought to Court?
Under Rule 111, Secs. 1 and 3 of the New Rules on Crimi- nal
Procedure, the answer is YES. In the case of Garcia, et al. v. Judge
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Florido, L-35095, Aug. 31, 1973, the Court ruled that while a
reservation is indeed required, the reservation need not be made
at the time the criminal proceedings are filed, if the offended
parties had no chance to do so (as when they were still in a
hospital, as a result of injuries suffered in a vehicular acci- dent, at
the time the criminal suit against the erring driver was filed).
However, in the case of Crispin Abellana, et al. v. Judge Maraue, L-
27760, May 29, 1974, the Court said that Rule 111 of the New
Rules on Criminal Procedure, insofar as it requires a reservation
even in the case of an independent civil action, is of doubtful
constitutionality inasmuch as the Rules of Court cannot amend
substantial law, like the Civil Code.
Effect of independent civil actions:
The civil action to recover damages from the person criminally
liable is not independent from the criminal action even when:
1. It been separated by the injured party from the criminal
proceedings either by
a. reserving his right to file a separate civil action or
the right to file the civil action shall depend upon the
result of the criminal action.
b. by commencing the action to recover damages ahead of
the criminal action.
once the criminal action is instituted, the action to recover
damages shall be suspended.
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Exceptions under the Civil Code where the civil action to recover
damages is ENTIRELY SEPARATE AND INDEPENDENT from the
criminal action
1. the civil action is based on an obligation not arising from
the act or omission complained of as a criminal offense or
felony;
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.
if the accused in the criminal action is acquitted either on
the ground of reasonable doubt or that he did not commit
the offense charged, he may proceed independently
because the basis of the civil action is the quasi-delict or
tory not the criminal liability.
2. 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. *
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
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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.
Example: 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 criminal action. Action is culpa contractual and
not on the act or omission of the driver complained of as
felony. The same principle is also applicable if the offense
charged constitutes what is known as culpa aquiliana or quasi-
delict under the Civil Code.I
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, (2) defamation,(3)
fraud,(4) physical injuries, 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.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
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it may proceed independently of the criminal action, and shall
require only a preponderance of evidence.
Article 1162. Obligations derived from quasi-delicts shall be
governed by the provisions of Chapter 2, Title XVII of this Book,
and by special laws. (1093a)
(1) Obligations Ex Quasi-Delicts or Ex Quasi-Maleficio
Governing laws:
(a) Chapter 2, Title 17, Book IV, Civil Code
(b) Special Laws
Culpa aquiliana (quasi-delicts) can refer to acts which are criminal
in character, whether the same be voluntary or negligent.
It concerns private interests. The purpose of quasi-delict is
indemnification and can be proved by preponderance of evidence.
The same negligent act or omission causing damage may produce
civil liability arising from a crime under Article 100 of the Revised
Penal Code or create an action for quasi-delict under Art. 2176.
The Revised Penal Code in art. 365 punishes not only reckless but
also simple negligence.
Requirements Before a Person Can Be Held Liable for a Quasi-
Delict
1. (a) there must be fault or negligence attributable to the
person charged;
2. (b) there must be damage or injury;
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Exconde v. Capuno
ART. 1903 (Spanish Civil Code). The obligation impossed by the next
preceding articles is enforceable not only for personal acts and
omissions, but also for those of persons for whom another is responsible.
The father, and, in case of his death or incapacity, the mother, are liable
for any damages caused by the minor children who live with them.
x x x x x x xxx
Finally, teachers or directors of arts and trades are liable for any
damages caused by their pupils or apprentices while they are under
their custody.
The civil liability which the law impose upon the father, and, in case of
his death or incapacity, the mother, for any damages that may be caused
by the minor children who live with them, is the necessary consequence
of the parental authority they exercise over them which imposes upon
the parents the "duty of supporting them, keeping them in their
company, educating them and instructing them in proportion to their
means", while, on the other hand, gives them the "right to correct and
punish them in moderation" (Articles 154 and 155, Spanish Civil Code).
Fifteen year-old Dante Capuno was convicted of double homicide
through reckless imprudence for causing the death of two persons. They
were his passengers while he was driving a jeep that turned turtle while
they were in a school procession.
- The mother of the deceased filed an action for damages against Dante
and his father, Delfin, asking for P2,959. The father argued, however,
that he can’t be held liable because his son was not under his supervision
when the incident happened and that he didn’t know about the school
event. The trial court sustained his claim and only ordered Dante to pay
for the damages, but the Supreme Court ruled that, in line with Art. 1903
of the old Civil Code, the civil liability must be imposed on the father and
in his absence, the mother .
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- The only way he can relieve himself of the liability is by proving that he
exercised the diligence of a good father in preventing the damage which
the defendants failed to do. The teachers or directors of Dante cannot
be held liable because the provision only refers to schools of arts
and trades, not academic institutions.
PSBA V. Court of Appeals
Facts:
Private respondents sought to adjudge petitioner PSBA and its
officers liable for the death of Carlitos Bautista, a third year
commerce student who was stabbed while on the premises of
PSBA by elements from outside the school. Private respondents
are suing under the law on quasi-delicts alleging the school and its
officers’ negligence, recklessness and lack of safety precautions
before, during, and after the attack on the victim. Petitioners
moved to dismiss the suit but were denied by the trial court. CA
affirmed.
Because the circumstances of the present case evince a contractual
relation between the PSBA and Carlitos Bautista, the rules on
quasi-delict do not really govern.
A perusal of Article 2176 shows that obligations arising from
quasi-delicts or tort, also known as extra-contractual obligations,
arise only between parties not otherwise bound by contract,
whether express or implied.
When an academic institution accepts students for enrollment,
there is established a contract between them, resulting in bilateral
obligations which both parties are bound to comply with. For its
part, the school undertakes to provide the student with an
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education that would presumably suffice to equip him with the
necessary tools and skills to pursue higher education or a
profession. On the other hand, the student covenants to abide by
the school’s academic requirements and observe its rules and
regulations. Necessarily, the school must ensure that adequate
steps are taken to maintain peace and order within the campus
premises and to prevent the breakdown thereof.
In the circumstances obtaining in the case at bar, however, there
is, as yet, no finding that the contract between the school and
Bautista had been breached thru the former’s negligence in
providing proper security measures. This would be for the trial
court to determine. And, even if there be a finding of negligence,
the same could give rise generally to a breach of contractual
obligation only.
Regino v. Pangasinan College of Science and Techncology
G.R No. 156109. November 18, 2004
Petitioner Kristine Regino was a poor student enrolled at the
Pangasinan College of Science and Technology. Thus, a fund raising
project pertaining to a dance party was organized by PCST,
requiring all its students to purchase two tickets in consideration
as a prerequisite for the final exam.
Regino, an underprivileged, failed to purchase the tickets because
of her status as well as that project was against her religious belief,
thus, she was not allowed to take the final examination by her two
professors.
The Supreme Court declared that the act of PCST was not valid,
though, it can impose its administrative policies, necessarily, the
amount of tickets or payment shall be included or expressed in the
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student handbooks given to every student before the start of the
regular classes of the semester. In this case, the fund raising
project was not included in the activities to be undertaken by the
university during the semester. The petitioner is entitled for
damages due to her traumatic experience on the acts of the
university causing her to stop studying sand later transfer to
another school.
s delivery. (1096)
CHAPTER 2
Nature and Effect of Obligations
Article 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. (1094a)
Article 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. (1095)
Art. 1477 ownership of the thing sold shall be transferred to the
vendee only upon the actual or constructive delivery thereof.
Article 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
Article 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. (1097a)
Nature of right of creditor
In obligations to give, the creditor has a right to the thing
which is the object of the obligations of the obligation as well
as thr fruits thereof from the time the obligation to deliver it
arises.
If the obligation arises from Obligation arises from the
law, quasi-contracts, time designated by the the
criminal offenses and quasi- provisions of the Civil code
delicts or special contracts

If obligation arises from Duty to deliver the fruits of

contracts the things from the
“Non nudis pactis, sed traditionis dominia rerym transferantur.” (As perfection of contract
a consequence of certain contracts, it is not agreement but
tradition or delivery that transfers ownership). (10 Manresa 339
and Fidelity & Deposit Co. v. Wilson, 8 Phil. 51). Art. 1537 the vendor is bound
to deliver the thing sold and its
accessions and accessories in
the condition in which they
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 were upon the perfection of valuable than that which is
the contract. due.

Personal right – right

pertaining to a person to
demand from another

Real Right – right pertaining

to a person over a specific
thing without a passive subject
indivicualy determined against
whom such right may be
enforced.
Obligations to give: determinate obligations Article 1163
An object is determinate when the object is particularly designated
or physically segregated from all others of the same class.
concrete, particularized thing, indicated by its own individuality
Obligations of Debtor
Perform the obligation specifically.
Obligor or debtor binds himself to
deliver the determinate thing and
cannot substitute it with another
thing even if the thing to be
substituted is a thing of superior
quality.
Take care of the thing with proper Recover damages for breach
diligence of a good father of a of the obligation through
family. Article 1163. delay, fraud, negligence or
contravention of tenor.
Deliver the accessions and Demand rescission in some
accessories of the thing Art. 1166 cases (reciprocal obliagtions
Art. 1191)
Accessions – all those things which
are produced by the object of the
obligation and which are naturally
or artificially attached thereto.
Natural, industrial and civil fruits
Accessories must be understood in
its current and popular sense, and
those things which have for their
object the preservation of the
Rights of Creditor
object more important, and to
Compel specific performance
which these accessories are not
(par. 1 Art. 1165) in relation
incorporated. Spare parts of a
to Art. 1244 which states that
machine, key of a house, equipment
the debtor of a thing cannot
of a certain factory
compel the creditor to
To be liable for damages in case of
receive a different one,
breach of obligation in case of
although the latter may be of
delay, fraud, negligence or
the same value as, or more
contravention of tenor.

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 If the debtor delays or has
promised to deliver the same thing
to two or more persons who do
not have the same interest, the
debtor shall be responsible for any Article 1167. If a person obliged to do something fails to do it, the
Fortuitous event until the delivery same shall be executed at his cost.
has been effected.
This same rule shall be observed if he does it in contravention of
Creditor may file an action against the debtor for specific the tenor of the obligation. Furthermore, it may be decreed that
performance under Art. 1165 and at the same time file for what has been poorly done be undone. (1098)
damages under Art. 1170.
Article 1168. When the obligation consists in not doing, and the
Obligations to give: generic obligations obligor does what has been forbidden him, it shall also be undone
An object is generic when the object is designated merely but its at his expense. (1099a)
own genus without any particular segregation or designation from 1. (a) This Article refers to a negative personal obligation.
all others of the same class. The debtor can fulfill his obligation by 2. (b) As a rule, the remedy is the undoing of the prohibited
delivering any horse or horses from which are neither of superior thing
nor inferior quality. plus damages. (See Art. 1170, Civil Code).

Obligation of Debtor Rights of Creditor

To deliver a thing which is
neither of superior nor inferior
quality.Consequently, the
creditor cannot demand a
thing of superior quality;
neither can the debtor deliver
a thing of inferior quality.
Fortuitous event is not a
defense in generic obligations:
the genus of a thing can never
perish (genus nunquam peruit)
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 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
Article 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.
However, the demand by the creditor shall not be necessary in
order that delay may exist:
(1) When the obligation or the law expressly so declare; 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.

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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. (1100a)
To put a debtor in default, as a rule, DEMAND is needed. The
demand may be judicial, as when a complaint for specific
performance is filed; or extrajudicial, without court proceedings.
Breach of Obligation
(Fraud, Negligence, Delay, Contravention of Tenor)
A. Kinds of Default/Delay:
1. Mora solvendi/Delay of the debtor
2. Mora accipendi/Delay of the creditor
3. Compensatio morae – delay of the parties in reciprocal
obligations
Requisites to be considered in default:
1. Obligation is demandable and already liquidated
2. The debtor delays the performance; and
3. The creditor requires the performance judicially or extra
judicially
When Demand Is Not Needed to Put Debtor in Default
1. When the law so provides. (Example: Taxes should be paid
within a definite period, otherwise penalties are imposed
without need of demand for payment.)
2. When from the nature and the circumstances of the
obligation it appears that the designation of the time when
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the things is to be delivered was the controlling motive
time is of the essence
3. When demand would be useless beause the debtor has
rendered it beyond his power to perform the obligation.
EFFECT OF DEFAULT/MORA
Once the debtor has incurred in delay, he may be held liable by the
creditor for damages even if the object of the obligation is
destroyed through a fortuitous event.
Voluntary Breach through fraud/dolo
Fraud – consists in the conscious and intentional proposition to
evade the normal fulfillment of an obligation. This type of fraud
must not be confused with casual/incidental fraud.
B. Fraud
1. Criminal
2. Civil
a. Fraud in the performance
o Employed for the purpose of evading the normal
fulfillment f an obligation
o Results in the non-fulfillment or breach of the
obligation.
o Gives rise to a right of the creditor to recover
damages from the debtor
b. Fraud at the time of the birth of the obligation
o Employed for the purpose of securing the consent ->
vitiation of consent
o Gives rise to the right of the innocent party to ask for
the annulment of the contract if the fraud is casual
and recover for damages if incidental.
Effect of Fraud
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Debtor may be liable for damages
Thus, waiver for future fraud is contrary to law and public policy.
Article 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.
(1101)
Article 1171. Responsibility arising from fraud is demandable in
all obligations. Any waiver of an action for future fraud is void.
(1102a)
Article 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. (1103)
Article 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 circumstances 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.
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. (1104a)
Voluntary breach through negligence or culpa:
- Omission of the diligence which is required by the nature of
the obligation and corresponds with the circumstances of
the person, time and of the place.
Kinds of Negligence
a. Criminal negligence
b. Civil negligence
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1. Culpa-contractual
Fault or negligence of the creditor by virtue of
which he is unable to perform his obligation
arising from pre-existing contract, because of the
omission of the due diligence required BY THE
nature of the obligation and corresponds with
the circumstances of the persons, of the time and
of the place.
Negligence is merely an incidental
2. Culpa-aquilana/cupla extra-contractual
Fault or negligence of a person who because of
the omission of the diligence required BY THE
nature of the obligation and corresponds with
the circumstances of the persons, of the time and
of the place causes damage ot another
There may or may not be a pre-existing
contractual obligation
Negligence is substantive and independent.
Negligence is caused by absence of diligence.
C. Negligence
(Fault (culpa) of the debtor to comply with the obligation with
reasonable care and caution that an ordinary prudent man would
have used in the same situation)
Negligence v. Fraud
INTENT is the distinguishing element.
If there is intent to cause damage or injury = dolo
Abandonment, inattention, carelessness, lack of diligence = culpa
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Test of Negligence (Cangco v. Manila Railroad Co. 38 Phil. 763)
Plaintiff was a passenger of a train and the defendant alighted
from the train while the train was still moving, and in alighting, he
stepped upon a sack of watermelons and as a result he fell
violently on the platform, and was drawn under the moving car
which resulted to his arm being badly crashed and lacerated.
The proximate cause according to the plaintiff was because the
company allowed the placing of the sack of the watermelons in the
platform.
It was held that the plaintiff was NOT liable for contributory
negligence because plaintiff was of age, in good physical condition
and the place was perfectly familiar to the plaintiff, and there was
therefore no uncertainty on his mind.
Effects of negligence
Creditor may hold debtor liable for damages.
Liability arising from negligence in the performance of an
obligation may be regulated by the cours. Court may take into
consideration the good or bad faith of the plaintiff when the
damages was incurred.
Effect of good faith Effect of bad faith
Debtor may only be held liable Art. 1173, 1171, 2201 (2) shall
for natural and probable apply.
causes of the obligation
Debtor may be held
responsible for all damages.
Article 1174. Except in cases expressly specified by the law, or
when it is otherwise declared by stipulation, or when the nature of
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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. (1105a)
Fortuitous events – an event which could not be foreseen or
which though foreseen was inevitable.
May be produced by: 1. Nature 2. By the act of man
Requisites:
1. independent of the human will;
2. event must be impossible to foresee;
3. or if it can be foreseen, impossible to avoid;
4. the debtor must be free from any participation in the
aggravation of the injury resulting to the creditor.
Exceptions to the fortuitous event:
1. expressed by law
Art. 552 par. 2
A possessor in bad faith shall be liable for deterioration or
loss in every case, even if caused by a fortuitous event.
Art. 1165 par 3
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. (1096)
Art. 1268
When the debt of a thing certain and determinate 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
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 person who should receive it, the latter refused without
justification to accept it. (1185)
Art. 1942 (Commodatum)
The bailee is liable for the loss of the thing, even if it should
be through a fortuitous event:
(1) If he devotes the thing to any purpose different from that
for which it has been loaned;
(2) If he keeps it longer than the period stipulated, or after
the accomplishment of the use for which the commodatum
has been constituted;
(3) If the thing loaned has been delivered with appraisal of its
value, unless there is a stipulation exempting the bailee from
responsibility in case of a fortuitous event;
(4) If he lends or leases the thing to a third person, who is not
a member of his household;
(5) If, being able to save either the thing borrowed or his own
thing, he chose to save the latter. (1744a and 1745)
Art. 1979
The depositary is liable for the loss of the thing through a
fortuitous event:
(1) If it is so stipulated;
(2) If he uses the thing without the depositor's permission;
(3) If he delays its return;
(4) If he allows others to use it, even though he himself may
have been authorized to use the same. (n)
Art. 2147
he officious manager shall be liable for any fortuitous event:
(1) If he undertakes risky operations which the owner was
not accustomed to embark upon;
(2) If he has preferred his own interest to that of the owner;
(3) If he fails to return the property or business after demand
by the owner;
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(4) If he assumed the management in bad faith. (1891a)
Art. 2148
Except when the management was assumed to save property
or business from imminent danger, the officious manager
shall be liable for fortuitous events:
(1) If he is manifestly unfit to carry on the management;
(2) If by his intervention he prevented a more competent
person from taking up the management. (n)
Art. 2149
The ratification of the management by the owner of the
business produces the effects of an express agency, even if the
business may not have been successful. (1892a)
2. declared by stipulation of parties
3. nature of the obligation requires assumption of risk (violenti
non fit injuria)
Res ipsa loquitur – negligence can be inferred from the very nature
of the injury.
Exceptions to the fortuitous event defense:
Based on Art 1174 and 1262
1. By law the debtor is liable
2. By stipulation of the parties
3. Nature of the obligation requires the assumption of risk
Based on Arts. 1165 and 1262
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 incurred a delay
6. Debtor promised the same thing to to or more persons who
do not have the same interest
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Based on Arts. 1268 and 1263
7. Obligation arises from a criminal offense
8. Obligation is generic
Article 1175. Usurious transactions shall be governed by special
laws. (n)
Usury – contacting or receiving something in excess of the amount
allowed by law for the loan or forbearance of money, goods or
chattels.
Article 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. (1110a)
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
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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.
Article 1177. The creditors, after having pursued the property 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. (1111)
Remedies to protect the credit of the Creditor
First and second remedies are subsidiary to the first*
exhaust the property in This remedy is in conformity
possession of the debtor; 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.
Exceptions:
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Accion Subragatoria
to be subrogated to all of the
rights and actions of the
debtor save those which are
inherent in his person;
Accion pauliana
impugn all of the acts which
the debtor may have done to
defraud him.
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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.
the creditor merely acts in the
name and for the account of
the debtor after exhausting all
of the assets of the latter.
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.
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. In other words, it
can only be availed of in the
absence of any other legal
remedy to obtain reparation
for the injury.
Article 1178. Subject to the laws, all rights acquired in virtue of an
obligation are transmissible, if there has been no stipulation to the
contrary. (1112)
Exceptions:
1. Not transmissible by nature
2. There is a stipulation
3. Not transmissible by law
Intransmissibility must be EXPRESSED and clearly established.
CHAPTER 3
Different Kinds of Obligations
SECTION 1
Pure and Conditional Obligations
Article 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. (1113)
Article 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. (n)
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 Mixed condition is one whose fulfillment depends jointly upon the
will of either one of the parties to the obligation and upon chance
A Condition may be defined as a future and uncertain fact or event and/or the will of a third person.
upon which an obligation is subordinated or made to depend. A
conditional obligation may, therefore, be defined as one whose Potestative conditional obligations shall be void.
effectivity is subordinated to the fulfillment or nonfulfillment of a However, these are valid:
future and uncertain fact or event. 1. Futurity 2. Uncertainty
1. If the condition is resolutory and, at the same time, potestative,
1. Suspensive or Resolutory the obligation, as well as the condition, is valid even though the
2. Potestative, Casual or mixed fulfillment of the condition is made to depend upon the sole will of
3. Mixed, Possible, or impossible the obligor or debtor.
4. Positive or negative
5. Divisible or indivisible 2. If the condition is potestative upon a pre-existing obligation
6. Conjunctive or alternative
7. Express or implied Effect of casual conditions

Article 1181. In conditional obligations, the acquisition of rights, as Effect of casual conditions Effect of mixed conditions
well as the extinguishment or loss of those already acquired, shall When the fulfillment of an Fulfillment of the conditions
depend upon the happening of the event which constitutes the obligation depends upon depends upon partly the will of
condition. (1114) chance and or the will of a the debtor and partly upon the
third party, the obligation third person, contract is valid.
Article 1182. When the fulfillment of the condition depends upon including such condition shall
the sole will of the debtor, the conditional obligation shall be void. take effect.
If it depends upon chance or upon the will of a third person, the Ex: if the debtor
obligation shall take effect in conformity with the provisions of promises to give 10,000 to the
this Code. (1115) creditor after 2 years provided
that during such period war
shall not break out between
Potestative condition is one whose fulfillment depends exclusively the US and Russia.
upon the will of either one of the parties to the obligation.

Casual condition is one whose fulfillment depends exclusively

upon chance and/or upon the will of a third person.
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Article 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 obligation 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. (1116a)
Impossible Conditions as well as those which are contrary to good
customs or public policy and those which prohibited by law shall
annul the obligations which depend upon them.
Divisible obligations which is not affected by the impossible or
unlawful condition shall be valid.
imposes reciprocal prestations upon the parties, the fruits and
interests during the pendency of the condition 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 determine, in
each case, the retroactive effect of the condition that has been
complied with. (1120)
Article 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. (1121a)

Article 1184. The condition that some event happen at a Retroactive Effect – Once the event which constitutes the condition
determinate time shall extinguish the obligation as soon as the is fulfilled thus resulting to the effectivity of the obligation, its
time expires or if it has become indubitable that the event will not effects must logically retroact to the moment when the essential
take place. (1117) elements which gave birth to the obligations must have taken
Article 1185. The condition that some event will not happen at a place and not to the moment when the accidental element was
determinate time shall render the obligation effective from the fulfilled.
moment the time indicated has elapsed, or if it has become evident
that the event cannot occur. Effect of suspensive conditions after fulfillment:
If no time has been fixed, the condition shall be deemed fulfilled at In obligations ot give In obligations to do or not to
such time as may have probably been contemplated, bearing in do
mind the nature of the obligation. (1118) When the obligation imposes In case of personal obligations,
Article 1186. The condition shall be deemed fulfilled when the reciprocal prestations, fruits the courts wull have to
obligor voluntarily prevents its fulfillment. (1119) and interests during the determine in each case.
PENDENCY shall be deemed to
Article 1187. The effects of a conditional obligation to give, once have been mutually The retroactive effct of the
the condition has been fulfilled, shall retroact to the day of the compensated condition that has been
constitution of the obligation. Nevertheless, when the obligation complied with.
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 When the obligation is During the pendency of the condition and the object of the
unilateral, debtor shall obligation encounters/undergoes either loss, deterioration or
appropriate the fruits and improvement, the effects are as follows:
interests received.
Loss Deterioration Improvement
If with fault of the Impairment to be If the thing is
Article 1189. debtor: the debtor born by the improved at the
Natural consequences of the principle of retroactivity as embodies shall be liable for creditor expense of the
in Art. 1187 damages If without fault of debtor, he shall
When the conditions have been imposed with the intention of the debtor have no right other
suspending the efficacy of an obligation to give, the following rules If without fault of thatn tha granted to
shall be observed in case of the improvement, loss or deterioration the debtor: debtor a usufructuary.
of the thing during the pendency of the condition: is obligation is
extinguished Debtor cannot ask
(1) If the thing is lost without the fault of the debtor, the obligation for improvement
shall be extinguished; for mere pleasure,
(2) If the thing is lost through the fault of the debtor, he shall be and can have the
obliged to pay damages; it is understood that the thing is lost when improvements
it perishes, or goes out of commerce, or disappears in such a way improved as long as
that its existence is unknown or it cannot be recovered; there is no damage
(3) When the thing deteriorates without the fault of the debtor, the to the propery and
impairment is to be borne by the creditor; may also set off the
(4) If it deteriorates through the fault of the debtor, the creditor improvements he
may choose between the rescission of the obligation and its ay have made
fulfillment, with indemnity for damages in either case; againsty any
(5) If the thing is improved by its nature, or by time, the damage to the
improvement shall inure to the benefit of the creditor; same.
(6) If it is improved at the expense of the debtor, he shall have no
other right than that granted to the usufructuary. (1122) -Offsetting the
damage to the
property by the
amount of the
improvement done

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 Arts. 579, 546, 579, he will certainly In obligations to give,
580 reacquire what he the parties must
may have paid or return to each other
delivered to the what they have
creditor. received (either
reciprocal or bilateral
Article 1190. When the conditions have for their purpose the *Art. 1888 also obligations)
extinguishment of an obligation to give, the parties, upon the available to debtors
fulfillment of said conditions, shall return to each other what they not only to creditors Right to demand
have received. in obligations with a reimbursment
resolutory condition According to Art 443
In case of the loss, deterioration or improvement of the thing, the during the pendency Article 443. He who
provisions which, with respect to the debtor, are laid down in the of a condition. receives the fruits has
preceding article shall be applied to the party who is bound to the obligation to pay
return. the expenses made by
As for the obligations to do and not to do, the provisions of the a third person in their
production, gathering,
second paragraph of article 1187 shall be observed as regards the
and preservation.
effect of the extinguishment of the obligation. (1123) (356)

Effect of resolutory Effect of resolutory Effect of loss, Article 1191. The power to rescind obligations is implied in
conditions BEFORE conditions AFTER deterioration, reciprocal ones, in case one of the obligors should not comply with
fulfillment fulfillment improvement what is incumbent upon him.
The right that the If not fulfilled, the Art. 1189 shall apply.
creditor acquired by rights are However, when an
The injured party may choose between the fulfillment and the
virtue of the consolidated or obligation is subject
rescission of the obligation, with the payment of damages in either
pendency of the absolute in character. to a resolutory
condition is always Such rights which are condition, the debtor case. He may also seek rescission, even after he has chosen
subject to threat of vested in the creditor is the person obliged fulfillment, if the latter should become impossible.
extinction. during the pendency to return while the
are extinguished creditor is the person The court shall decree the rescission claimed, unless there be just
upon the fulfillment to whom the thing cause authorizing the fixing of a period.
If and when the event of the condition. must be returned. This is understood to be without prejudice to the rights of third
when the event persons who have acquired the thing, in accordance with articles
which constitutes the Retroactivity: 1385 and 1388 and the Mortgage Law. (1124)
condition happens,
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This provision talks about judicial action.
Reciprocal obligations are those which are created or established
at the same time out of the same cause and which result in the
mutual relationship of the creditor and debtor. Rescission is
implied in reciprocal obligations.
Limitations to the judicial discretion to decree rescission
1. Cannot be applied to reciprocal obligations arising from a
contract of lease
2. If it prejudices to the rights of a third person who have
acquired the thing in accordance with the Mortgage Law
and Arts. 1385 and 1388.
3. For only casual/slight breaches
4. If there is a waiver of right to rescind
Article 1191 also cannot apply in sales of real property since it is
covered by the Recto Law (Arts 1484-1486)
Article 1484. In a contract of sale of personal property the price of
which is payable in installments, the vendor may exercise any of the
following remedies:
(1) Exact fulfillment of the obligation, should the vendee fail to pay;
(2) Cancel the sale, should the vendee's failure to pay cover two or
more installments;
(3) Foreclose the chattel mortgage on the thing sold, if one has been
constituted, should the vendee's failure to pay cover two or more
installments. In this case, he shall have no further action against the
purchaser to recover any unpaid balance of the price. Any
agreement to the contrary shall be void. (1454-A-a)
Article 1485. The preceding article shall be applied to contracts
purporting to be leases of personal property with option to buy,
when the lessor has deprived the lessee of the possession or
enjoyment of the thing. (1454-A-a)
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Article 1486. In the case referred to in the two preceding articles, a
stipulation that the installments or rents paid shall not be returned
to the vendee or lessee shall be valid insofar as the same may not be
unconscionable under the circumstances. (n)
Sales of personal property by installments is governed by the
Maceda Law RA 6552
Under Section 3 of RA 6552, buyers who default on their payments of
installments are entitled to pay, without additional interest, the
unpaid installments due within the total grace period they have
earned. This total grace period has been fixed at the rate of a one-
month grace period for every one year of installment payments
made. However, this right can only be exercised by the buyer once in
every five years of the life of the contract and its extensions.
If the contract is canceled, the seller shall refund to the buyer the
cash surrender value of the payments on the property, which is
equivalent to 50 percent of the total payments made. After five years
of installments, an additional five percent for every year of payments
will be added, but not to exceed 90 percent of the total payments
made.
For the above paragraph to apply, the actual cancellation of the
contract must take place 30 days after receipt by the buyer of the
notice of cancellation. This notice of cancellation, or a demand for
rescission at that must be by a notarial act and upon the full
payment of the aforementioned cash surrender value to the buyer.
Tacit Resolutory Condition
In reciprocal obligations, if one of the parties fail to comply with
what is incumbent upon him, there is a right on the part of the
other to rescind.
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Right to rescind or resolve the obligation is a right which belongs
to the injured party alone. It is essential to be invoked judicially.
However, if a contract itself contains a resolutory provision by
virtue of which the obligation may be cancelled by the injured
party in case of breach, judicial permission to cancel or rescind is
no longer necessary.
Rescissions will not be allowed for slight or casual breaches of
obligation.
In contracts of partnership where one of the partners fail to pay
for the whole amount which he has bound himself to contribute to
the common fund, in such cases Arts. 1786 and 1788 will apply
because special provisions prevail vs. general provisions.
Alternative obligations as remedies for the injured party
Injured party may choose between the fulfillment of the obligation
OR the rescission of the obligation.
However if the injured party chooses the fulfillment and
such fulfillment becomes impossible, the injured party may still
seek the rescission or resolution of the obligation.
When the injured party chooses specific fulfilment or
rescission the rule is that he can recover damages and in
estimating the damages, only the elements of damages can be
awarded.
Article 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. (n)
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No remedy for either parties, damages may be mitigated since
both parties committed a breach.
SECTION 2
Obligations with a Period
Article 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. (1125a)
Article 1194. In case of loss, deterioration or improvement of the
thing before the arrival of the day certain, the rules in article 1189
shall be observed. (n)
Article 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. (1126a)
Article 1196. Whenever in an obligation a period is designated, it
is presumed to have been established for the benefit of both the
creditor and the 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. (1127)
Article 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.
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In every case, 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. (1128a)
Potestative term/period
The courts may fix a period when:
The duration depends upon the will of the debtor
“when my means permit me to do so ”
“as soon as possible”
“as soon as I have my money”
When although the obligation does not fix a period, it can be
inferred if the period was intended A contract to construct a
house, An obligation with an indefinite period etc.
The only action that can be maintained under 1197 is an action to
ask the court to fix the duration of the period. Only after the
duration has been fixed that any other action involving the
fulfillment or performance of the obligation can be maintained.
Requisites before a court can proceed with fixing the period the
following facts must be alleged in the complaint:
1. Facts showing that a certain contract was entered into
imposing on one of the parties an obligation in favor of the
other;
2. Facts showing that the performance of the obligation.
Article 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 gives a guaranty or security for the debt;
(2) When he does not furnish to the creditor the guaranties or
securities which he has promised;
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(3) When by his own acts he has impaired said guaranties or
securities after their establishment, and when through a fortuitous
event they disappear, unless he immediately 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. (1129a)
Extinguishment of Debtor’s Right to Period
1. When after the obligation has been contracted, he becomes
insolvent, unless he gives a guaranty or security for the debt;
It must be understood in its popular sense, It includes any case
in which it would not be possible financially for the debtor to
comply with his obligation. No need for a court declaration
stating that the debtor is insolvent.
If the insolvency is pre-existing, the creditor has the benefit of
due diligence/credit investigation.
In case of fraud/misrepresentation/negligence regarding the
insolvency, Art. 1171 shall apply. Article 1171. Responsibility
arising from fraud is demandable in all obligations. Any waiver
of an action for future fraud is void. (1102a)
Consent is vitiated, contract is voidable and annulment of
obligation and recovery of what has been loaned. Debtor
losing the benefit of the period but not under Art. 1198.
2. When he does not furnish to the creditor the guaranties or
securities which he has promised;
When the debtor does not furnish the stipulated guaranty, no
more right to term or period or instead of making a mortgage
in favor of the creditor, makes it in favor of another person he
loses the benefit of the term. Without the condition or the
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 benefit of the mortgage, the obligation became pure and
demandable
3. When by his own acts he has impaired said guaranties or
securities after their establishment, and when through a
fortuitous event they disappear, unless he immediately gives
new ones equally satisfactory;
Impairment – loss its value due to impairment, disappears.
Loss – goes out of commerce and cannot be found, perishes.
The debtor shall lose the benefit of the period when:
a. if the guaranty or security is impaired through the fault
or debtor
if without fault, the debtor shall retain his right.
b. if the guaranty or security disappears through any
cause (like fortuitous events) even without fault of the
debtor he shall lose his right to the benefit of the period
unless he gives a new guaranty which is equally
satisfactory if the debtor let the mortgaged things is
allowed to be decayed, he impairs the value of the
guaranty, debt becomes demandable. (Song fo v. Oria)
Stipulation can override this paragraph if the creditor
stipulates that the debtor shall be liable for whatever reason
there is an impairment.
4. When the debtor violates any undertaking, in consideration of
which the creditor agreed to the period;
The undertaking shall refer to the period; if the undertaking
does not pertain to a period but to a condition, it is also
demandable*
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The period shall be the principal consideration or compelling
reason why the debtor agreed to the period (acceleration
clause if representing the creditor; ‘failure on the part of the
debtor to pay any installment or the remaining balance will
make the obligation due and demandable’)
When the debtor violates any undertaking violates any
undertaking;
ex: When an employee commits a substantial breach of
contract in his employment even if there is a fixed period for
the job.
5. When debtor attempts to abscond.
Attempting to abscond is a sign of bad faith, hence the term is
lost. It is not essential that there is an actual absconding. Mere
leaving does not show intent therefore not sufficient to
constitute attempt to abscond.
SECTION 3
Alternative Obligations
Obligation with
several objects
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conjunctive distributive

Article 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. (1131)
Article 1200. The right of choice belongs to the debtor, unless it
has been expressly granted to the creditor.
The debtor shall have no right to choose those prestation which
are impossible, unlawful or which could not have been the object
of the obligation. (1132)
Article 1201. The choice shall produce no effect except from the
time it has been communicated. (1133)
Alternative obligations – the right of choice belongs to the debtor.
Limitations are cited on Art 1200.
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“A will give B this car or this ring or this fountain pen.” A
does not have to give B all the three things enumerated. The
giving of one is sufficient to satisfy the obligation.
Requisites to the right of choice:
1. Made properly so the creditor or his agent will properly
know
2. Made with full knowledge that a selection is indeed being
made
3. Made voluntarily and freely without force, intimidation,
coercion or undue influence
4. Made in due time, which is before or upon maturity
5. Made to all proper persons
6. Made without the conditions unless agreed to by the
creditor
7. May be waived expressly or impliedly (Art. 6)
Limitations on the right of choice
- Impossible
- Unlawful
- Or which could have been an object of an obligation
The moment the choice has been done and communicated by the
debtor will result to the cessation of the obligation being
alternative. No special form is required. From that moment, both
creditor and debtor are bound to
comply with this new obligation.
Exceptions:
1. Right of choice has been expressly granted to creditor
2. It has been expressly granted to a third person
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Article 1202. The debtor shall lose the right of choice when
among the prestation whereby he is alternatively bound, only one
is practicable. (1134)
How was the thing lost?
is the thing determinate or generic?
When the other alternative choices are impracticable and the
debtor is already bound alternatively, the debtor loses the right of
choice. The obligation loses its alternative character and therefore
becomes a simple obligation.
Art 1202 v. Art 1200 paragraph 2:
Art 1202 (2): The debtor shall have no right to choose those
prestation which are impossible, unlawful or which could not have
been the object of the obligation. (1132)
Under this paragraph, the debtor still has a choice and the
obligation is still alternative because the debtor can still exercise
his right of election.
Article 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. (n)
Since through the creditor’s fault, the right of the choice of the
debtor is rendered ineffective, the only recourse is the rescission
of contract with damages.
Article 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
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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. (1124)
Article 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. (1135a)
Article 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 creditor
should choose from among the remainder, or that which remains if
only one 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
26
of that which, through the fault of the former, has disappeared, rule applies when the nature of the obligation requires the
with a right to damages; assumption of risk. (1182a)

(3) If all the things are lost through the fault of the debtor, the Art 1266. The debtor in obligations to do shall also be released
choice by the creditor shall fall upon the price of any one of them, when the prestation becomes legally or physically impossible
also with indemnity for damages.The same rules shall be applied without the fault of the obligor. (1184a)
to obligations to do or not to do in case one, some or all of the If one of the things lost or one But if through the fault of the
prestation should become impossible. (1136a) of the prestation cannot be debtor, par 2 and 3 of Art
performed by reason of 1205 are applicable.
Art. 1204 is applicable when the right of choice belongs to the fortuitous event, debtor must
debtor & 1205 when it belongs to the creditor. till comply with the obligation (2) If the loss of one of the
by delivering or performing things occurs through the fault
Right of choice belongs to Right of choice belongs to the that which he shall choice from of the debtor, the creditor may
debtor Art 1204 creditor Art. 1205 among the remainder. There claim any of those subsisting, or
Due to a fortuitous event or without the fault of the debtor: are still choices the price of that which, through
Following provisions shall apply and the debtor cannot be held the fault of the former, has
liable for damages. If all of the things or disappeared, with a right to
prestations except one are lost damages;
Art 1174. Except in cases expressly specified by the law, or or cannot be performed due to (3) If all the things are lost
when it is otherwise declared by stipulation, or when the nature a fortuitous event, the debtor through the fault of the debtor,
of the obligation requires the assumption of risk, no person shall must till comply with the the choice by the creditor shall
be responsible for those events which could not be foreseen, or obligation by delivering or fall upon the price of any one of
which, though foreseen, were inevitable. (1105a) performing that which he shall them, also with indemnity for
choice from that which damages.
Art 1262. An obligation which consists in the delivery of a remains. One remains The same rules shall be applied
determinate thing shall be extinguished if it should be lost or to obligations to do or not to do
destroyed without the fault of the debtor, and before he has If all things or prestations are in case one, some or all of the
incurred in delay. lost or cannot be performed, prestation should become
the debtor is released from the impossible. (1136a)
When by law or stipulation, the obligor is liable even for obligation. However, if there is
fortuitous events, the loss of the thing does not extinguish the fault, Art 1204 shall apply If all of the things are lost or
obligation, and he shall be responsible for damages. The same and be fixed as taking as a cannot be performed, the
basis the value of the last thing creditor may claim the price or
value of of the things or
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 or service lost/became
impossible.
Article 1206. When only one prestation has been agreed upon,
but the obligor may render another in substitution, the obligation
is called facultative.
prestation lost with indemnity
for damages. In the same way,
that even if some of the things
or choices/prestation exist, the
creditor may still choose to
only claim the value of the
thing lost and ask for
indemnity for damages
Perahin or reimburse mo na
lang sa akin.
If one or some choice or
prestation remains or
subsisting, the creditor may: 1.
claim any of it or the price or 2.
Claim the value of the one lost
with indemnity for damages.
“I will give you my car but I may also give you my house as
a substitute.”
Obligation wherein only one object has been agreed upon by the
parties, but which may be obliged with delivery or performance of
another prestation.
In alternate obligations, several objects are due, the right or choice
may pertain even to the creditor. Loss or impossibility of all the
subjects which are due without any fault of the debtor is
necessary to extinguish the obligation.
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.
Substitution takes effect when the substitution has been
communicated.
The provision is silent with respect to the moment when the
substitution will take effect. The only one empowered to make a
substitution is the debtor and debtor should communicate the
substitution to the creditor.

The loss or deterioration of the thing intended as a substitute,
through the negligence of the obligor, does not 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. (n)
Nature of Facultative Obligations
If the thing before being substituted was lost or deteriorated
through the deliberateness or negligence of the debtor, it will not
make him liable. Whatever the cause of the loss or deterioration of
the thing will not render the debtor liable. However id the
substitution has already been made, the debtor shall be liable for
the loss or deterioration on amount of his delay, negligence or
fraud because the obligation after the substitution was turned into
a simple one with the substituted thing as the object of the
obligation.

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SECTION 4 Tie existing among several creditors of one and the same
Joint and Solidary Obligations obligation
Most fundamental effect is mutual agency by virtue of
Article 1207. The concurrence of two or more creditors or of two which, no creditor is empowered to exercise against the
or more debtors in one and the same obligation does not imply debtor or debtors not only the rights which correspond to
that each one of the former has a right to demand, or that each one the hm but also the rights which correspond to the debtor
of the latter is bound to render, entire compliance with the Passive Solidarity – among debtors
prestation. There is a solidary liability only when the obligation Tie existing among several debtors of one and the same
expressly so states, or when the law or the nature of the obligation obligation
requires solidarity. (1137a) There is liability of each debtor for the payment of the
entire obligation
Article 1208. If from the law, or the nature or the wording of the
obligations to which the preceding article refers the contrary does In active/passive solidarity cases, the co-debtors/co-
not appear, the credit or debt shall be presumed to be divided into creditrs possess character of debtor/creditor only with respect to
as many shares as there are creditors or debtors, the credits or his share in the obligation.
debts being considered distinct from one another, subject to the
Rules of Court governing the multiplicity of suits. (1138a)
Article 1209. If the division is impossible, the right of the creditors Solidary Debtor Surety
may be prejudiced only by their collective acts, and the debt can be Not only liable for the payment of Liable for the payment of
enforced only by proceeding against all the debtors. If one of the another but also for his own debt of another
latter should be insolvent, the others shall not be liable for his Pays the entire amount of the If a surety pays the whole
share. (1139) obligation and has a right to amount, he has a right to
Article 1210. The indivisibility of an obligation does not reimbursement demand reimbursement
necessarily give rise to solidarity. Nor does solidarity of itself only from his principal
imply indivisibility. (n) debtor
In passive solidarity: Extension of An extension granted to
Article 1211. Solidarity may exist although the creditors and the time granted by the creditor to one the principal debtor
debtors may not be bound in the same manner and by the same of the solidary debtors without the releases the surety
periods and conditions. (1140) knowledge or consent of other
debtors would not release the
Kinds of Solidarity: latter from the obligation
Mixed Solidarity– among creditors and debtors
Active Solidarity – among creditors
Effects of varied conditions or periods
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 1. Uniform – when debtors are bound by the same solidary debtors, shall extinguish the obligation, without prejudice
stipulations and clauses; to the provisions of Article 1219.
2. Varied – where the obligors though liable for the same
prestation, are nevertheless subject to the same secondary Ways and effects of Novation
stipulations
changing the object or New obligation is created and
principal condition it’s either prejudicial (solidary
Articles 1212-1215 refers to mutual agency or mutual creditor shall reimburse the
representation other for damages) or
beneficial (the creditor shall
Article 1212. Each one of the solidary creditors may do whatever be liable to the other for the
may be useful to the others, but not anything which may be share in the obligation +
prejudicial to the latter. (1141a) benefits)

Only useful NOT prejudicial acts are allowed to be done: substituting another person Solidary creditor shall be liable
Beneficial act – to interrupt the running of a prescription by in place of the debtor for the acts of the new debtor in
making a judicial demand upon any of the debtors because case of deficiency in
prescription of actions is interrupted when filed before the courts performance or damages he
Art. 1156 may incur

Prejudicial – acts should not be performed to avoid liability for subrogating a third person Obligation not at all
damages. in the rights of solidary extinguished because
creditor responsible for the relationship between other
novation creditors is not substituted &
Article 1213. A solidary creditor cannot assign his rights without debtors are maintained
the consent of the others. (n) subrogating a third person The creditor responsible shall
in the rights of all solidary be liable to other creditors for
Article 1214. The debtor may pay any one of the solidary creditors the share which corresponds to
creditors; but if any demand, judicial or extrajudicial, has been them in the obligation
made by one of them, payment should be made to him. (1142a)

Article 1215. Novation, compensation, confusion or remission of

the debt, made by any of the solidary creditors or with any of the Article 1219. The remission made by the creditor of the share which
affects one of the solidary debtors does not release the latter from
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his responsibility towards the co-debtors, in case the debt had been
totally paid by anyone of them before the remission was effected. The other creditors shall be
(1146a) reimbursed to the extent of
their rights which diminished
or affected
For a valid novation to take place, there must be, therefore: (a) a
previous valid obligation; (b) an agreement of the parties to make Total Compensation or Obligation is extinguished
a new contract; (c) an extinguishment of the old contract; and (d) a Confusion altogether and liability for
valid new contract.17 reimbursement within each
group will arise.
Novation
- The change or substitution of an obligation by another Debtors who benefit from the
resulting in its extinguishment or modification. compensation/confusion shall
reimburse the debtor
responsible
Compensation and Confusion
- Compensation is a figurative operation of weighing two
obligations simultaneously in order to extinguish them to Remission
the extent that the amount of one is covered by the amount forget about the whole thing
of the other. - An act of pure liberality by virtue of which the creditor,
- Confusion merger of the qualities of creditor and debtor in without having received any compensation or equivalent,
one and the same person with respect to one and the same renounces his right to enforce the obligation thereby
obligation extinguishing the same either partially or totally.

In reality, remission of a debt is a donation. Hence, if the

remission was an effect by efforts of a solidary debtor, he is
not entitled to any reimbursement by his co-debtors.
Partial Compensation or Doubt may arise and may be
Confusion solved by applying the rules on REMISSION BY DEBTORS:
application of payment
without prejudice to the right
of the other creditors who
have not caused the
confusion/compensation
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 If the remission covers the
entire obligation
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Then the obligation is
totally extinguished & the
entire juridical relation
among debtors is
extinguished
Art. 1220 expressly
declared that the remission
of the whole obligation by
one of the solidary debtors
does not entitle him to
reimbursement by his co-
debtors
Article 1220. The remission
of the whole obligation,
obtained by one of the
solidary debtors, does not
entitle him to
reimbursement from his co-
debtors. (n)
If the remission if for the
benefit of one of the
debtors and covers his
entire share in the
obligation
If the remission if for the
benefit of one of the
debtors and covers his
partial share in the
obligation
He is released from the
creditor/s but still bound to
his other debtors.
If one of his co-debtors
subsequently pays for the
balance of the obligation
which was not covered by
the condonation & the
proceeds for
reimbursement and one is
insolvent, the debtor who
benefitted in the earlier
remission shall still have to
share in the portion which
corresponds to the
insolvent.
Article 1217. (3)
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. (1145a)
The character of the
solidarity debtor
responsible is not affected;
it continues both to his co-
creditors and debtors
32

These rules on remission cannot apply if the debt has been totally
paid by anyone of the solidary debtors.
If in any case (partial/total remission), the creditor
proceeds against any of the other remaining co-debtors in rules 1
&2, they can avail of the partial remission defense based on Art.
1222 Inchausti & Co v. Yulo)
Payment to Creditor
If one of the solidary creditors Obligation is totally
is able to collect the entire extinguished, however he is
amount of the debt from one obliged to render an account to
or all the solidary debtors his co-debtors
Article 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. (1144a)
Passive solidarity
- Similar to Art. 1211 re: varied varied conditions/periods
Any of the debtor may be liable for the payment of the obligation
= Creditor may proceed against any of the solidary debtors
Passive Solidarity and Suretyship
- Both the solidary debtor and the surety guarantee for
another person
- Both can demand reimbursement
Solidary debtor is indebted for his own share only and can be
reimbursed for the same and if he the solidary debtor receives an
extension for the period of payment, the other debtors are still
liable for the whole obligation minus the share of the debtor who
received an extension (but same share can still be demandable
also from them upon arrival of the extended term)
Surety is indebted only for the share of the principal debtor and
can be reimbursed for everything he paid. If a principal debtor
receives an extension without the consent of the surety, the surety
is released from the obligation. In cases of default.
Suretyship is a direct contract to pay the debt of another
As an original promisor and debtor from the beginning, the
surety is held ordinarily to know every default of the principal. He
is also liable as much as his principal debtor even if there is no
demand upon the principal. A surety is not entitled to be given
notice of the principal debtor’s default because he is bound to take
notice of the principal’s performance.
Death of creditor/debtor/surety
- Death of either parties does not extinguish the obligation
i.e; money claims from a contract against an estate of a
deceased debtor (except for personal obligations),
obligations are transmissible to the heirs except when such
transmission is prohibited by law/stipulation/nature of the
obligation.
- Death of a surety cannot be a defense; although the contract
of surety is only secondary to that of a valid principal, his
liability to the creditor is direct, primary and absolute and
therefore, he is equally bound with the principal.
- The petitioner with the principal debtor may be sued even
in case of the death of the principal debtor the petitioner

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 may still be sued due to the solidary nature of the
obligation.
Heirs of Servando Franco v. Gonzales
- Novation is not presumed. This means that the parties to a
contract should expressly agree to abrogate the old
contract in favor of a new one. In the absence of the express
agreement, the old and the new obligations must be
incompatible on every point.
- There is novation when there is an irreconcilable
incompatibility between the old and the new obligations.
There is no novation in case of only slight modifications;
hence, the old obligation prevails.
- November 7, 1985– 50,000 loan payable in two months
(3,000 was deducted as advance interest for one month at
6% per month.
Promissory note for 50,000 was executed payable on
January 7. 1986.
- November 19, 1985 – 90,000 loan payable in two months at
6% interest per month. Promissory note for 90,000 was
executed payable in January 19, 1986.
Veronica Gonzales only received 84,000 out of the proceeds of the
loan.
- June 11, 1986 – 300,000 loan maturing in one month
secured by REM over a property owned by Leticia
Makalintal Yaptinchay who issued an SPA in favor of Leticia
Medel, authorizing the latter to execute the mortgage.
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Promissory note was executed to pay the sum on July 11,
1986. Only 275,000 was given.
- P60,000.00 loan payable on August 23, 1986 but before that,
on July 23, 1986, Servando and Leticia with the latter’s
husband, Dr. Rafael Medel, consolidated all their previous
unpaid loans totaling P440,000.00, and sought from
Veronica another
Latest loan brought their indebtedness to a total of P500,000.00
In his answer to the complaint filed with the trial court on April
5, 1990, defendant Servando alleged that he did not obtain any loan
from the plaintiffs; that it was defendants Leticia and Dr. Rafael
Medel who borrowed from the plaintiffs the sum of P500,000.00,
and actually received the amount and benefited therefrom; that the
loan was secured by a real estate mortgage executed in favor of the
plaintiffs, and that he (Servando Franco) signed the promissory
note only as a witness.
In their separate answer filed on April 10, 1990, defendants
Leticia and Rafael Medel alleged that the loan was the transaction
of Leticia Yaptinchay, who executed a mortgage in favor of the
plaintiffs over a parcel of real estate situated in San Juan, Batangas;
that the interest rate is excessive at 5.5% per month with additional
service charge of 2% per annum, and penalty charge of 1% per
month; that the stipulation for attorney’s fees of 25% of the amount
due is unconscionable, illegal and excessive, and that substantial
payments made were applied to interest, penalties and other
charges.
In their appeal, plaintiffs-appellants argued that the promissory
note, which consolidated all the unpaid loans of the defendants, is
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the law that governs the parties. Accordingly, on December 9,
1991, the trial court rendered judgment
Upon the finality of the decision in Medel v. Court of Appeals, the
respondents moved for execution.5 Servando Franco
opposed,6 claiming that he and the respondents had agreed to fix
the entire obligation at ₱775,000.00. According to Servando, their
agreement, which was allegedly embodied in a receipt dated
February 5, 1992,(based on the RTC ruling) whereby he made an
initial payment of ₱400,000.00 and promised to pay the balance of
₱375,000.00 on February 29, 1992, superseded the July 23, 1986
promissory note.
Received from SERVANDO FRANCO BPI Manager’s Check No.
001700 in the amount of ₱400,00.00 as partial payment of
loan. Balance of ₱375,000.00 to be paid on or before
FEBRUARY 29, 1992. In case of default an interest will be
charged as stipulated in the promissory note subject of this
case.
Issues: Was there a novation of the August 23, 1986 promissory
note when respondent Veronica Gonzales issued the February 5,
1992 receipt?
A novation arises when there is a substitution of an obligation by a
subsequent one that extinguishes the first, either by changing the
object or the principal conditions, or by substituting the person of
the debtor, or by subrogating a third person in the rights of the
creditor.16 For a valid novation to take place, there must be,
therefore: (a) a previous valid obligation; (b) an agreement of the
parties to make a new contract; (c) an extinguishment of the old
contract; and (d) a valid new contract. 17 In short, the new
obligation extinguishes the prior agreement only when the
substitution is unequivocally declared, or the old and the new
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obligations are incompatible on every point. A compromise of a
final judgment operates as a novation of the judgment obligation
upon compliance with either of these two conditions.18
The extinguishment of the old obligation by the new one is
a necessary element of novation which may be effected either
expressly or impliedly. The term "expressly" means that the
contracting parties incontrovertibly disclose that their object in
executing the new contract is to extinguish the old one. Upon the
other hand, no specific form is required for an implied novation,
and all that is prescribed by law would be an incompatibility
between the two contracts. While there is really no hard and fast
rule to determine what might constitute to be a sufficient change
that can bring about novation, the touchstone for contrariety,
however, would be an irreconcilable incompatibility between the
old and the new obligations.
The receipt dated February 5, 1992 was only the proof of
Servando’s payment of his obligation as confirmed by the decision
of the RTC. It did not establish the novation of his agreement with
the respondents. Indeed, the Court has ruled that an obligation to
pay a sum of money is not novated by an instrument that expressly
recognizes the old, or changes only the terms of payment, or adds
other obligations not incompatible with the old ones, or the new
contract merely supplements the old one There is incompatibility
when the two obligations cannot stand together, each one having
its independent existence. If the two obligations cannot stand
together, the latter obligation novates the first. 22 Changes that
breed incompatibility must be essential in nature and not merely
accidental. The incompatibility must affect any of the essential
elements of the obligation, such as its object, cause or principal
conditions thereof; otherwise, the change is merely modificatory
in nature and insufficient to extinguish the original obligation.
35
Article 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 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. (1145a)
Article 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. (n)
Payment
- Is one of the ways by which an obligation is
extinguished and consists in the delivery of the thing or
rendition of the service which is the object of the
obligation.
The fact of payment is the basis of the right to be reimbursed
(not the original contract), for not until the payment, no
reimbursement can be made.
The effect of payment is either total or partial extinguishment
of the obligation depending upon whether the entire amount of
debt is partially or totally paid. Interest cannot be demanded if
payment was made before the due date
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Effect of payment in case of payment of prescribed debt
If the debt has already prescribed and A paid voluntarily, A
cannot recover anymore because there is a presumption that A
knows the prescription period.
Bank of the P.I. vs. McCoy
Action was initially by the plaintiff bank versus McCoy and 6 other
solidary debtors worth 16,000. Subsequently, McCoy entered into
a compromise with the bank and paid 12,000.
Issue: Whether or not McCoy can be substituted as plaintiff against
her former co-defendants for compelling them to reimburse to her
their proportionate shares in the obligation?
Ruling: By paying off the claim which was originally the subject of
the litigation, Mccoy was therefore subrogated to the rights of the
original plaintiff. If the obligation is a joint one, the liability rests
on the part of all of the original defendants, Mccoy has acquired
the right to prosecute the action for contribution against her
former co-debtors.
* The doctrine of McCoy case seems to be in conflict with the Wilson
v. Bekenkotter case, that in a case of this sort, there is no real
subrogation. It is submitted by the court however that when the
court held that “the executrix was subrogated to the rights of the
original plaintiff” it was referring to subrogation not in the technical
sense, but to procedural sense.
Before payment is actually made, the right of the solidary debtor
to demand reimbursement from his co-debtors is merely
contingent & conditional.
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Once payment has been made by one of the solidary debtors, the
rifht becomes real and existing.. The old obligation in favor of the
creditor is extinguished, and a new obligation is created in favor of
the solidary debtor who made the payment therefore there is no
real case of subrogation.

Wilson v. Berkenkotter

On June 30, 2938, Berkenkotter, Wilson and Gulick executed a

promissory note promising jointly and severally to pay an
indebtedness of 90,000 pesos to the Chartered bank of India,
Australia and China plus interests.

Payment was made by Berkenkotter in November 1944 with

Japanese military notes and after liberation of the
Philippines, Berkenkotter demanded from his co-debtors
reimbursement of their shares in the obligation.

When the 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.

RMB2020
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