PRELIM WEEK

Oblicon in case of discussions:

Natural Obligations - there is a moral but not a legal duty to perform or pay, but the
person thus performing or paying feels that in good conscience he should comply with
his undertaking which is based on moral grounds.

REAL OBLIGATION:
PERSONAL RIGHT (JUS AD REM) - is the right or power of a person (creditor) to
demand from another (debtor), as a definite passive subject, the fulfillment of the latter’s
obligation to give, to do, or not to do.

REAL RIGHT (JUS IN RE) - is the right or interest of a person over a specific thing (like
ownership, possession, mortgage, lease record) without a definite passive subject
against whom the right may be personally enforced.

Difference: While in personal right there is a definite active subject and a definite
passive subject, in real right, there is only a definite active subject without any definite
passive subject. A personal right is, therefore, binding or enforceable only against a
particular person while a real right is directed against the whole world.

PERSONAL OBLIGATION:
- Obligation to do or not to do or that in which the subject matter is an act to be
done or not to be done.

POSITIVE PERSONAL OBLIGATION - obligation to do or to render service

NEGATIVE PERSONAL OBLIGATION - obligation not to do (which naturally includes
obligations “not to give”)
BREACHES OF OBLIGATION:
- Occurs when there is a failure or refusal, by a party without legal reason or
excuse to perform, in whole or in part the obligation or undertaking which is
incumbent upon him.

CONCEPT OF A GOOD FATHER OF THE FAMILY:

- In obligations to give (real obligations), the obligor has the incidental duty to take
care of the thing due with the diligence of a good father of a family pending
delivery. The phrase has been equated with ordinary care or that diligence which
an average (a reasonably prudent) person exercises over his own property.
Diligence of a good father of a family means an ordinary care. Just like a father of
a family, it is a care that an average person would do in taking care of his
property.

What are the remedies of the Obligee (Creditor) when the debtor fails to perform
his obligation?
1. If to deliver a determinate thing
a. compel the debtor to make the delivery (Art. 1165)
b. demand damages from the debtor (Art. 1170)
2. If to deliver an indeterminate thing
a. ask that the obligation be complied with at the expense of the debtor (Art. 1165)
b. demand damages from the debtor (Art. 1170)

COMPLETE FAILURE TO PERFORM

- Asides from Art.1167-1168, Failure to Perform Obligations. Unless due to a
Force Majeure Event excused by Section 9, the failure of Provider to perform or
cause to be performed any obligation required to be performed by Provider under
 this Agreement or the failure of any representation and warranty set forth herein
to be true and correct as and when made; provided, however, that if such failure
by its nature can be cured, then Provider shall have a period of thirty (30)
business days after receipt of written notice from Customer of such failure to
Provider to cure the same and a Provider Default shall not be deemed to exist
during such period; provided, further, that if Provider commences to cure such
failure during such period and is diligently and in good faith attempting to effect
such cure, said period shall be extended for one-hundred twenty (120) additional
days

Mora solvendi, mora accipiendi and compensation morae.

Mora solvendi is delay on the part of the debtor to perform his obligation. The
requisites are the following: positive act or prestation of the debtor, obligation should
be demandable, due and liquidated, that the debtor shall delay by fraud or by
negligence, creditor should demand either judicially or extra-judicially.
Mora accipiendi, on the other hand is delay on the part of the creditor. Contrary to
belief and the common knowledge of people, delay may also be done by the creditor
and not only the debtor. There is mora accipiendi or delay on the part of the creditor
when the obligee or creditor refuse to accept the delivery of the thing which is the object
of the obligation without justifiable cause. The requisites for mora accipiendi are: the
fulfilment requires the act of cooperation on the part of the creditor, that the debtor has
done what is incumbent upon him and refusal by creditor.
In reciprocal obligations, delay is called compensation morae. Compensatio morae is
default on the part of both debtor/obligor and the creditor/obligee which arises in
reciprocal obligations. The effect is the default of one party neutralizes the default of the
other. Parties are both guilty of mutual default. Their respective liabilities shall be offset
equitably.

In legal theory, a default rule is a rule of law that can be overridden by a contract, trust,
will, or other legally effective agreement.

CONTRAVENTION OF TENOR. Includes not only any illicit act which impairs the strict
and faithful fulfillment of the obligation, but also every kind of defective performance,
unless excused in proper cases for fortuitous event.
THE FOLLOWING DO NOT EXCUSE FULFILLMENT
1. Increase in cost of performance;
2. Poverty;
3. War.

ART. 1174
Except in cases expressly specified by the law, or when it is otherwise declared by
stipulation, or when the nature of the obligation requires the assumption or risk, no
person shall be responsible for those events which, could not be foreseen, or which
foreseen, were inevitable.