GUNDRAN, KEVIN CARLOS

ECO22
BUSINESS LAW AND OBLIGATIONS AND CONTRACTS

NATURE AND EFFECT OF OBLIGATION

1. Define the following:

a) Generic or indeterminate thing

 A thing is a generic or indeterminate when it refers only to a class or genus to

which it pertains and cannot be pointed out with particularly.
b) Specific thing

 A thing is said to be specific or determinate particularly designated or

physically segregated others of the same class. (Art. 1459.)

c) Real right

 Is the right or interest of a person over a specific thing (like ownership,

possession, mortgage), without a definite passive subject against who the right
may be personally enforced.

d) Personal right

 A right that may be enforce by one person on another, such as the right of a
creditor to demand delivery of the thing and its fruits from the debtor.

e) Delay

 The word delay, as used in the law, is not understood according to its meaning
in common parlance. A distinction, therefore, should be made between
ordinary delay and legal delay (default or mora) in the performance of an
obligation.

f) Fortuitous event

 A fortuitous event is any event which cannot be foreseen, or which, though

foreseen, is inevitable. Stated otherwise, it is an event which is either
impossible to foresee or impossible to avoid.
 The essence of a fortuitous event consists of being a happening independent of
the will of the debtor and which happening, makes the normal fulfillment of
the obligation impossible.

g) Diligence of a good father of a family

 In obligation, it means that the obligor is required or has the duty to put care
or take every of his actions or anything that he must give with care, like in
materials, it looks like that he should handles it like he owns it.
2. Give the rules as to the liability of a person for loss or damage resulting from a fortuitous event.

 When expressly by specified by law.

The debtor is guilty of fraud, negligence, or delay, or contravention of tenor of the

obligation.
The debtor has promised to deliver the same (specific) thing to two (2) or more
persons who do not have the same interest. (IBID).

The obligation to deliver a specific thing arises from a crime.

The thing to be delivered is generic.

 When declared by stipulation.

The basis for this exception rest upon the freedom of contract.

 When the nature of the obligation requires the assumption of risk.

Here, risk of loss or damage is an essential element in the obligation.

3. What rights are given by law to the creditor in case the debtor fails to comply with his obligation
to deliver a specific thing?

 Personal right - is the right or power of a person (creditor) to demand from another
(debtor), as a definite passive subjects, the fulfillment of the latter’s obligation to give, to
do, or not to do.

4. Suppose the obligation of the debtor is to do something and he fails to do it or performs it in

contravention of the agreement, what are the remedies available to the creditor?

 Specific real obligation (obligation to deliver a determinate thing)

Demand specific performance or fulfillment (if it is still possible) of the obligation

with a right to indemnity for damages.
Demand rescission or cancellation (in certain cases) of the obligation also with a
right to recover damages.
Demand payment of damages only, where it is the only feasible remedy.

 Generic real obligation (obligation to deliver a generic thing), on the hand, can be
performed by a third person since the object is expressed only according to its family or
genus.

5. Can a debtor be put in delay and consequently, incur liability even without demand from
creditor? Explain

 For me based on my understanding my answer would be No, because if the creditor does
not demand, then it is presumed that he is giving the debtor an extension of time and the
latter in not liable for damages.
6. May an action arising from fraud be waived? Explain

 Yes. If the debtor really commits a fraud, the creditor can waive an action or decides to
waive his right to indemnity, and it will be considered as an act of forgiveness to the
debtor. Waiver is void only when it is a waiver of an action for future fraud.

7. May an action arising from negligence be waived? Explain

 Yes. An action for future negligence, not fraud, may be waived except where the nature
of the obligation requires the exercise of extraordinary diligence as in the case of
common carriers, but when the negligence shows bad faith, it is considered as equal as
fraud. Any waiver of an action for future negligence of this kind is, therefore, void.