ART. 1222. A solidary debtor may, in actions fi led by Where there is only one creditor and one debtor.
e debtor. long; the obligation of X and Y to deliver 20 cubic
the creditor, avail himself of all defenses which are
derived from the nature of the obligation and of those
which are personal to him, or pertain to his own share.
With respect to those which personally belong to the
others, he may avail himself thereof only as regards that
part of the debt for which the latter are responsible.
(1148a)
Defenses available to a solidary debtor.
(1) Defenses derived from the nature of the
obligation - complete defense because it nullifies
the obligation or renders it ineffective. Other
examples are fraud, prescription, remission,
illegality or absence of consideration, res judicata,
non-performance of a suspensive condition, etc.
(2) Defenses personal to, or which pertain to share
of, debtor sued — complete defense: insanity,
incapacity, mistake, violence, minority, etc.;
partial defense: non-fulfillment of suspensive
condition.
(3) Defenses personal to other solidary debtors –
partial defense: A may avail himself thereof only
as regards that part of the debt for which B is
liable. A is still liable for P2, 000.00, his share in
the obligation.
SECTION 5 – DIVISIBLE AND INDIVISIBLE OBLIGATIONS
ART. 1223. The divisibility or indivisibility of the things
that are the object of obligations in which there is only
one debtor and only one creditor does not alter or
modify the provisions of Chapter 2 of this Title. (1149)
DIVISIBLE OBLIGATION – object of which, in its delivery
or performance, is capable of partial fulfillment.
INDIVISIBLE OBLIGATION–object of which, in its
delivery or performance, is not capable of partial
fulfillment.
Test for the distinction.
Controlling circumstance: not the possibility or
impossibility of partial prestation but the purpose of
the obligation or the intention of the parties.
 Even though the object or service may be physically
divisible, an obligation is indivisible if so provided by
law or intended by the parties. (Art. 1225, par. 3.)
 If the object is not physically divisible or the service
is not susceptible of partial performance (Art.
1225, par. 1.), the obligation is always INDIVISIBLE,
the intention of the parties to the contrary
notwithstanding.
 An obligation is presumed indivisible where there is
only one creditor and only one debtor. (Art. 1248.)
Applicability of Article 1223.
“THINGS” – used in its broad sense as referring to the
object or prestation of the obligation, which may be to
deliver a thing or to render some service; not limited to
real obligation.
“Divisibility of the object ≠ Divisibility of the thing”
A definite thing like a car, cannot be severed into parts
without altering its essence or destroying its value. It is
an essential condition of the fitness of a thing to be
divisible that it is possible, by uniting the diverse
portions thereof, to reconstruct it as if existed before its
division. (4 Sanchez Roman 93.)
Kinds of division.
(1) Qualitative division – based on quality, not on
number or quantity of the things that are the object of
the obligation. (E.g. inheritance of house & lot and rice
field)
(2) Quantitative division – based on quantity rather
than on quality. (E.g. rice field: partition by metes and
bounds into two equal parts)
(3) Ideal or intellectual division – exists only in the
minds of the parties. (E.g. one-half shares in the car)
Kinds of indivisibility.
(1) Legal indivisibility. — where a specific provision of
law declares as indivisible, obligations which, by their
nature, are divisible (Art. 1225, par. 3.);
(2) Conventional indivisibility. — where the will of the
parties makes as indivisible, obligations which, by their
nature, are divisible (Ibid.); and
(3) Natural indivisibility. — where the nature of the
object or prestation does not admit of division, e.g., to
give a particular car, to sing a song, etc. (Ibid., par. 1.)
The provisions of Chapter 2 (Arts. 1163 to 1178.) are
also applicable to divisible or indivisible obligations.
They contemplate obligations involving only one
creditor and only one debtor.
Since divisibility or indivisibility refers to the object or
prestation (Art. 1210.), it does not alter or modify said
provisions. (Art. 1223.)
When there is only one creditor and one debtor, the
latter has to perform the obligation in its totality,
whether or not the prestation is divisible. Unless there
is an express stipulation to that effect:
 Article 1248: The creditor cannot be compelled
partially to receive the prestations in which the
obligation consists;
 Article 1232: An obligation is not deemed paid
unless the thing or service in which the obligation
consists has been completely delivered or
rendered, as the case may be.
ART. 1224. A joint indivisible obligation gives rise to
indemnity for damages from the time anyone of the
debtors does not comply with his undertaking. The
debtors who may have been ready to fulfill their
promises shall not contribute to the indemnity beyond
the corresponding portion of the price of the thing or of
the value of the service in which the obligation consists.
(1150)
Effect of non-compliance by a debtor in a joint
indivisible obligation.
If any one of the debtors does not comply with his
undertaking in a joint indivisible obligation, the
obligation is transformed into one for damages, i.e., to
pay money. The creditor cannot ask for specific
performance or rescission because there is no cause of
action against the other debtors who are willing to fulfill
their promises.
ART. 1225. For the purposes of the preceding articles,
obligations to give definite things and those which are
not susceptible of partial performance shall be deemed
to be indivisible.
When the obligation has for its object the
execution of a certain number of days of work, the
accomplishment of work by metrical units, or analogous
things which by their nature are susceptible of partial
performance, it shall be divisible.
However, even though the object or service
may be physically divisible, an obligation is indivisible if
so provided by law or intended by the parties.
In obligations not to do, divisibility or
indivisibility shall be determined by the character of the
prestation in each particular case. (1151a)
Obligations deemed indivisible.
General rule: The purpose of the obligation is the
controlling circumstance. This rule applies not only to
obligations to give but also to those of doing or not
doing.
Divisible and indivisible obligations are not to be
confused with divisible and indivisible contracts. (Art.
1420.)
(1) Obligations to give definite things — the
obligation is indivisible because of the nature of the
subject matter.
(2) Obligations which are not susceptible of
partial performance — the obligation is indivisible by
reason of its purpose which requires the performance
of all the parts. The obligation becomes divisible as far
as the participants are concerned because it is capable
of partial performance.
(3) Obligations provided by law to be
indivisible even if thing or service is physically divisible
—although money is physically divisible, the amount of
tax payable must be delivered in toto, not partially.
(4) Obligations intended by the parties to be
indivisible even if thing or service is physically divisible
— money is physically divisible but the intention is to
deliver the thing at one time and as a whole.
Obligations deemed divisible.
(1) Obligations which have for their object
the execution of a certain number of days of work —
e.g. painting to be finished in 10 days: the obligation
need not be fulfilled at one time.
(2) Obligations which have for their object
the accomplishment of work by metrical units — e.g.
obligation of X to make a table, 3 feet wide and 5 feet
meters of sand.
(3) Obligations which by their nature are
susceptible of partial performance — e.g. obligation to
teach “Obligations and Contracts” for one year in a
university; obligation to pay a debt of P12, 000.00 in 12
monthly installments of P1, 000.00 but each prestation
to pay P1, 000.00 is indivisible as it is to be delivered at
one time and in its totality.
Divisibility or indivisibility in obligations not to do.
In negative obligations not to do, the character of
the prestation in each particular case shall determine
their divisibility or indivisibility.
(1) Indivisible obligation. — X obliged himself to Y not
to sell cigarettes in his store for one year. Here, the
obligation should be fulfilled continuously during a
certain period.
(2) Divisible obligation. — If the obligation of X is not
to sell cigarettes in his stores only during Sundays
and holidays, the obligation is divisible because the
forbearance is not continuous.
Obligations “to do” and “not to do” are generally
indivisible. Obligations “to do” stated in paragraph 2 of
Article 1225 are divisible.
SECTION 6. — OBLIGATIONS WITH A PENAL CLAUSE
ART. 1226. In obligations with a penal clause, the
penalty shall substitute the indemnity for damages and
the payment of interests in case of noncompliance, if
there is no stipulation to the contrary. Nevertheless,
damages shall be paid if the obligor refuses to pay the
penalty or is guilty of fraud in the fulfillment of the
obligation.
The penalty may be enforced only when it is
demandable in accordance with the provisions of this
Code. (1152a)
PRINCIPAL OBLIGATION – can stand by itself and does
not depend for its validity and existence upon another
obligation.
ACCESSORY OBLIGATION – attached to a principal
obligation and, therefore, cannot stand alone.
Obligation with a penal clause – contains an accessory
undertaking to pay a previously stipulated indemnity in
case of breach of the principal prestation intended
primarily to induce its fulfillment.
Penal clause – accessory undertaking attached to an
obligation to assume greater liability on the part of the
obligor in case of breach of the obligation, i.e., the
obligation is not fulfilled, or is partly or irregularly
complied with.
Purposes of penal clause.
(1) REPARATION: to insure their performance by
creating an effective deterrent against breach, making
the consequences of such breach as onerous as it may
be possible.
(2) PUNISHMENT: to substitute a penalty for the
indemnity for damages and the payment of interests in
case of non-compliance (Art. 1226.); or to punish the
debtor for the non-fulfillment or violation of his
obligation.
Penal clause and condition distinguished.
PENAL CLAUSE CONDITION
constitutes an obligation does not constitute
although accessory an obligation
may become demandable in never demandable
default of the unperformed
obligation and sometimes
jointly with it
Kinds of penal clause.
As to its origin:
 Legal penal clause — provided for by law
 Conventional penal clause — provided for by
stipulation of the parties
As to its purpose:
 Compensatory penal clause — penalty takes the
place of damages
 Punitive penal clause — penalty is imposed merely
as punishment for breach.
As to its dependability or effect:
  Subsidiary or alternative penal clause — when only
the penalty can be enforced
 Joint or cumulative penal clause — when both the
principal obligation and the penal clause can be
enforced
ART. 1228. Proof of actual damages suffered by the
creditor is not necessary in order that the penalty may
be demanded. (n)

Penalty substitutes for damages and interests.

General rule: Penalty takes the place of the indemnity
for damages and the payment of interests in case of
non-compliance. (Art. 1226.) Proof of actual damages
suffered by the creditor is not necessary in order that
the penalty may be enforced. (Art. 1228.)
When creditor may recover damages.
The creditor, in addition to the penalty, may recover
damages and interests:
(a) When so stipulated by the parties;
(b) When the obligor refuses to pay the penalty, in
which case the creditor may recover legal interest
thereon; or
(c) When the obligor is guilty of fraud in the
fulfillment of the obligation (A.1226), in which case the
creditor may recover damages caused by such fraud.
When penalty may be enforced.
The penalty may be enforced only when it is
demandable in accordance with the provisions of the
Civil Code.
Penalty, as a stipulation in a contract, is demandable
only if there is a breach of the obligation and it is not
contrary to law, morals, good customs, public order, or
public policy. (Art. 1306.)
Thus, if the obligation cannot be fulfilled due to a
fortuitous event, the penalty is not demandable.
Under Article 1229, the penalty may be reduced if it is
iniquitous or unconscionable or in case there is partial
or irregular fulfillment.
ART. 1227. The debtor cannot exempt himself from the
performance of the obligation by paying the penalty,
save in the case where this right has been expressly
reserved for him. Neither can the creditor demand the
fulfillment of the obligation and the satisfaction of the
penalty at the same time, unless this right has been
clearly granted him. However, if after the creditor has
decided to require the fulfillment of the obligation, the
performance thereof should become impossible
without his fault, the penalty may be enforced. (1153a)
Penalty not substitute for performance.
Purpose of penalty: to secure compliance with the
obligation. If the debtor is allowed to just pay the
penalty, this would in effect make the obligation an
alternative one. (Art. 1199.)
The debtor can exempt himself from the non-
fulfillment of the obligation only when “this right has
been expressly reserved for him.”
Penal clause presumed subsidiary.
General rule: the creditor cannot demand the
fulfillment of the obligation and the satisfaction of the
penalty at the same time.
(1) Where there is performance — purpose is attained
and there is no need for demanding the penalty. The
exception arises when “this right has been clearly
granted” the creditor. A penal clause is subsidiary and
not joint.
(2) Where there is no performance — the creditor may
ask for the penalty or require specific performance. The
remedies are alternative and not cumulative nor
successive subject to the exception that the penalty
may be enforced, if after the creditor has decided to
require fulfillment, the same should become impossible
without his fault. If there was fraud on the part of the
debtor, the creditor may recover the penalty as well as
damages for non-fulfillment. (Art. 1226.)
Penalty demandable without proof of actual damages.
In an obligation with a penal clause all that
the creditor has to prove, to enforce the penalty, is the
violation of the obligation by the debtor. It is not
necessary to adduce evidence to prove losses and one
of the reasons of fixing the penalty is to avoid such
necessity and other difficulties involved in litigations.
The creditor may enforce the penalty
whether he suffered damages or not. But he cannot
recover more than the stipulated penalty even if he
proves that the amount of his damages exceeds the
penalty.
Damages recoverable in addition to penalty must be
proved.
In any of the three exceptions when damages may be
recovered in addition to the penalty (Art. 1227.), the
creditor must prove the amount of such damages
which he actually suffered resulting from the breach of
the principal obligation.
ART. 1229. The judge shall equitably reduce the penalty
when the principal obligation has been partly or
irregularly complied with by the debtor. Even if there
has been no performance, the penalty may also be
reduced by the courts if it is iniquitous or
unconscionable. (1154a)
When penalty may be reduced by the courts.
“Iniquitous and unconscionable stipulations on interest
rates, penalties, and attorney’s fees are contrary to
morals.’’
The rule in Article 1229 is of evident justice. The penalty
provided for in the penal clause may be reduced by the
courts:
(1) When there is partial or irregular performance. —
The first refers to the extent of fulfillment, the latter, to
the manner. An obligation is not deemed performed
unless the thing or service in which it consists has been
completely delivered or rendered.
(2) When the penalty agreed upon is iniquitous or
unconscionable. — The penalty may be reduced even if
there is no performance at all. Even if iniquitous or
unconscionable, liquidated damages, whether intended
as an indemnity or as a penalty, are not void, but
subject merely to equitable reduction.
ART. 1230. The nullity of the penal clause
does not carry with it that of the principal obligation.
The nullity of the principal obligation carries
with it that of the penal clause. (1155)
Effect of nullity of the penal clause.
ACCESSORY – follows the principal and not vice versa
If only the penal clause is void, the principal obligation
remains valid and demandable. The penal clause is just
disregarded. The injured party may recover indemnity
for damages in case of non-performance of the
obligation as if no penalty had been stipulated. (Art.
1170.)
Effect of nullity of the principal obligation.
Principal obligation is void: penal clause is void. The
reason is that the clause cannot stand alone without the
principal obligation to which it is subordinated.
Nullity of the principal obligation is due to the fault of
the debtor who acted in bad faith: penalty may be
enforced.

When penal clause joint.

The debtor has the right to pay the penalty
in lieu of performance only when this right has been
expressly reserved for him; an implied grant clearly
deducible from the evidence or the nature of the
obligation is sufficient.
With respect to the creditor, he has right to
demand performance and payment of penalty jointly
when this right has been clearly granted him. The
creditor can demand both the principal obligation and
the penalty with legal interest on the amount of the
penalty from the date of demand where the debtor
refuses to pay the penalty.