LOSS OF THE THING DUE
ART. 1262.
A thing is lost when it perishes or goes out commerce or
disappears in such a way that its existence is unknown or it
cannot be recovered.
REQUISITES: IN ORDER THAT AN OBLIGATION TO
GIVE WILL EXTINGUISH AN OBLIGATION :
1. Obligation is to deliver a specific thing;
2. The loss of the thing occurs without the fault of the debtor;
3. The debtor is not guilty of delay.
INSTANCES WHEN EVEN IF THERE IS LOSS OF THE
SPECIFIC THING EVEN WITHOUT THE FAULT OR
DELAY ON THE PART OF THE DEBTOR WILL NOT
EXEMPT HIM FROM LIABILITY, thus he can still be held
liable for damages :
1. When the law so provides
2. When the stipulation so provides
3. When the nature of the obligation requires the assumption
of risk
4. When the obligation to deliver a specific thing arises from
a crime
ART. 1263. In an obligation to deliver a generic thing, the
loss or destruction of a thing of the same kind does not
extinguish the obligation
This is based on the principle of genun nunquam perit and the
debtor can still be compelled to deliver a thing of the same
kind. However, the creditor cannot demand a thing of
superior quality neither can the debtor deliver a thing of
inferior quality.
ART. 1264 speaks of partial loss where the court is given the
discretion in case the parties disagree whether the partial loss
is equivalent to a complete or total loss.
There is partial loss when only a portion of the thing is lost or
destroyed or when it suffers depreciation or deterioration.
Partial loss is equivalent of difficulty of performance in
obligations to do.
EXAMPLE. A is obliged to deliver a specific horse to B. The
horse met an accident and it suffered a broken leg. The injury
is permanent. Partial loss is so important as to extinguish the
obligation.
If the loss is due to the fault of A, he shall be obliged to pay
the value of the horse with indemnity for damages.
If the horse to be delivered is to be slaughtered by B, the
injury is clearly not important. Even if there was fault on the
part of A, he can still deliver the horse with liability for
damages, if any, suffered by B.
ART. 1265. Disputable presumption of fault whenever the
thing to be delivered is lost in the possession of the debtor.
REASON: there is presumption since the debtor has the
custody and care of the thing and he can easily explain the
circumstances of the loss.
EXCEPTION : in case of natural calamities, lack of fault on
the part of the debtor is more likely, so it is unjust to presume
negligence on his part.
** In ART. 1165 (3rd paragraph), the obligor who is not at
fault is still liable in case he is guilty of delay or has promised
to deliver the same thing to two or more persons who do not
have the same interest.
EXAMPLE: A borrowed the cellphone of B. On due date of
the obligation, to return the cellphone, A told B that the
cellphone was stolen and that he was not at fault. That is not
enough to extinguish A's obligation. There was a presumption
that it was A's fault why the cellphone is lost and therefore he
is liable, unless he proves the contrary.
Suppose the house of A was gutted by fire with accidental
origin and that the cellphone was at his house at the time of
fire. Here, A is not liable unless B proves fault on the part of
A.
ART. 1266. If the obligation becomes legally or physically
impossible without the debtor's fault, the obligation is
extinguished.
KINDS OF IMPOSSIBILITY:
1. Physical impossibility - in purely personal obligations,
when the personal qualifications of the obligor are involved
2. Legal impossibility - obligation cannot be performed
because it is rendered impossible by provision of the law
ART. 1267. When the service has become so
difficult as to be manifestly beyond the contemplation of the
parties, the obligor may also be released therefrom, in whole
or in part.
** The impossibility of the performance releases the obligor
in whole or in part.
EXAMPLE.
ART. 1268 - another instance when a fortuitous event does
not exempt the debtor from liability, that is where the
obligation proceeds from a criminal offense except when the
creditor refused to accept the thirtg without justification, after
it has been offered to him.
EXAMPLE.
ART. 1269 - the creditor is given the right to proceed against
the third person responsible for the loss. There is no need for
assignment by the debtor.
EXAMPLE. A is obliged to deliver to B a specific horse. The
horse is lost because of the fault of C. The obligation of A is
extinguished and he is not liable to B. Such being the case, A
would not be interested in going after C. The law however
protects B by giving him the right to bring an action against C
to recover the price of the horse with damages.
CONDONATION OR REMISSION OF DEBT
Art. 1270 - speaks of condonation or remission as a way of
extinguishing an obligation.
** Condonation or remission is the gratuitous abandonment
by the creditor of his right against the debtor and thus a form
of donation.
REQUISITES :
1. It must be gratuitous;
2. It must be accepted by the obligor;
3. The parties must have capacity:
4. Must not be inofficious;
5. If made expressly, it must comply with the forms of
donation.
KINDS OF REMISSION : EXAMPLE. A owes B P1,000 evidenced by a promissory
note. The note signed by A is given to B. If the promissory
1. As to its extent : note is voluntarily delivered to A, the presumption is that the
debt must have been paid by A. If it is known that A has not
a.) Complete - covers the entire obligation yet paid B, it must be presumed that the obligation has been
remitted by B. Suppose it is not known how A came into
b.) Partial - it does not cover the entire obligation possession of the promissory note, the presumption is that it
was voluntarily delivered by B unless B proves the contrary.
2. As to its form: ART. 1273. The renunciation of the principal debt shall
extinguish the accessory obligations, but the waiver of the
a.) Express - made either verbally or in writing altter shall leave the former in force.

b.) Implied - when it can be inferred from the conduct ** Accessory follows the principal. While the accessory
obligations cannot exists without the principal obligation, the
3. As to its date of effectivity: latter may exists without the former.

a.) Intervivos - take effect during the lifetime of the donor
b.) Mortis causa - it will become effective upon the death of
the donor and must comply with the formalities of a will
EFFECTS OF INOFFICIOUS REMISSION:
EXAMPLE. A owes B P1,000 with C as the guarantor. The
principal debt here is P1,000 while the accessory obligation is
the guaranty of C. The remission of the debt of A by B shall
extinguish the guaranty of C but if only the guaranty of C is
condoned, the obligation of A shall remain in force.

** While a person may make donations, no one can give

more than that which he can give by will, otherwise the
excess shall be inofficious and shall be reduced by the courts
accordingly.

LEGITIME - is the part of the testator's property which he

cannot disposed of because the law has reserved it for certain
heirs who are therefore called compulsory heirs.
ART. 1271 - Implied or tacit remission

** if the debt is not yet paid, the creditor would need the
document to enforce payment. In case he voluntarily delivers
it to the debtor, the only logical inference is that he is
renouncing his right to collect. The presumption however is
only prima facie or rebuttable by contrary evidence.

** if the obligation is joint, the presumption of remission

pertains only to the share of the debtor who is in possession
of the document; if solidary, to the total obligation.

** the presumption speaks only to a private document and it

does not apply in the case of a public document because it is
easy to obtain a copy of the same, being a public record.

** 2nd paragraph of ART. 1271, the renunciation of the

action which the creditor had against the debtor maybe
nullified or invalidated by showing that the waiver is
inofficious.
ART. 1272. Whenever the private document in which the
debt appears is found in the possession of the debtor, it shall
be presumed that the creditor delivered it voluntarily unless
the contrary is proved.

** Ordinarily, the document evidencing the debt is in the

possession of the creditor. He has in his favour the legal
presumption that his credit is as yet uncollected, unless the
debtor proves satisfactorily by one of the rules recognized in
law that he has already paid the claim. If later, the document
is found in te hands of the debtor and it is not known how he
came into possession of the same, the presumption is that it
was voluntarily
delivered by the creditor. This presumption of voluntary
delivery, in turn, gives rise to the presumption of remission. It
is believed however, that the presumption of voluntary
delivery should give rise to the presumption of payment and
only when it is known that indeed there is no payment should
there be a presumption of remission: